John Koeppel

The State of Florida recently petitioned the Florida Supreme Court to clarify what constitutes an antique firearm for purposes of section 790.23, Fla. Stat. (2012), which prohibits possession of a firearm by a felon. Weeks v. State (SC14-1856). Under chapter 790, Fla. Stat., a firearm is defined to exclude an “antique firearm,” which is in turn defined as “any firearm manufactured in or before 1918… or any replica thereof, whether actually manufactured before or after the year 1918…” Section 790.001(1), Fla. Stat. (2012).

In Weeks, the defendant was arrested for possession of a firearm by a convicted felon, a violation of section 790.23, Fla. Stat. The firearm in question was a black powder muzzleloader rifle with a percussion cap firing system. There was no dispute that the rifle had an “ancient vintage” firing system; rather, the dispute centered on whether the scope, an accessory considered nonexistent prior to 1918, rendered the firearm a “replica” for purposes of section 790.23, Fla. Stat. On appeal in the First District Court of Appeal, Weeks argued that given the multiple meanings which may be assigned to the term “replica,” a person of ordinary intelligence is not given fair notice of what conduct is forbidden by the statute. The State argued that anyone could plainly see that, due to the scope, Weeks’ firearm was not an exact copy of a weapon manufactured in or before 1918. 2014 WL 4197379.

In finding the statute unconstitutional for vagueness with respect to what constitutes a replica, the First District reversed Weeks’ conviction. The Court reasoned that given chapter 790’s definition of “antique firearm,” the firing mechanism is what determines whether a firearm is an antique or a replica thereof, regardless of the date of manufacture. The Court noted that “replica” is not defined in section 790.23, Fla. Stat., and that enforcement of the statute with respect to Weeks would result in arbitrary and discriminatory punishment.

Conversely, the Fifth District Court in Bostic v. State, finding it “clear that merely having an ignition system similar to that found on an antique firearm is not sufficient to render a firearm a ‘replica’ of a firearm manufactured in or before 1918,” could not conclude that the statute fails to give fair notice of the prohibited conduct. (Fla 5th DCA 2005) 902 So.2d 225, 228-29. The Fifth District reasoned that the defendant’s firearm, which had a fiber optic sight, was visibly different than an antique firearm. The Court held the term “replica” should be defined as “a reasonably exact reproduction of the object involved that, when viewed, causes the person to see substantially the same object as the original.” 902 So. 2d at 228.

The State filed its jurisdictional brief in Weeks on September 29, 2014, citing the certified conflict with Bostic.

Court May Clarify What Constitutes an Antique Firearm