Does Florida law allow a person to lawfully possess a federally registered destructive device?

Plain-English summary

The federal Bureau of Alcohol, Tobacco, Firearms and Explosives asked the Florida Attorney General's office a narrow but practical question. Under the National Firearms Act, the ATF must deny an application to make or transfer a regulated firearm, including a "destructive device," if doing so would put the applicant in violation of state law. So before approving a Florida applicant, the ATF needed to know: does Florida law allow possession of destructive devices, or has Florida criminalized it?

Back in 1975, the Florida Department of Legal Affairs had told the ATF there was no Florida statute making it unlawful to possess a destructive device as defined in section 790.001(4). Since then Florida amended its laws, and the ATF wanted to know if that 1975 answer still held. The office said it did.

The key is what the current statutes actually punish. Section 790.161 makes it a felony to "willfully and unlawfully" make, possess, throw, project, place, or discharge a destructive device, with the felony degree rising based on intent and harm. The operative word is "unlawfully." And section 790.1612, added in 1990, expressly lets a city, county, or the Division of State Fire Marshal authorize the manufacture, possession, and use of destructive devices. Reading the legislative history of the 1990 changes, the office found the Legislature meant to toughen penalties for misuse, not to outlaw legally held devices, noting committee statements that the changes "would not violate the rights of those who have these devices legally." The office therefore reaffirmed its long-standing position that Florida law permits lawful possession of destructive devices.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion concluded (2011)

The office concluded that Florida law continued to allow the lawful possession of destructive devices as defined in section 790.001(4), Florida Statutes, and that sections 790.161 and 790.1612 confirmed rather than contradicted that position. It walked through the change in the statute: the 1975 version of section 790.161 punished only throwing, placing, discharging, or attempting to discharge a destructive device with intent to harm persons or property, and said nothing about possession. The 2010 version reaches willful and "unlawful" making and possession, with escalating felony degrees keyed to intent, disruption, bodily harm, or death.

The office read the word "unlawfully" as the hinge. Because section 790.1612 (enacted in 1990) authorizes municipalities, counties, and the Division of State Fire Marshal to permit the manufacture, possession, and use of destructive devices, lawful possession remains possible; what section 790.161 criminalizes is unlawful possession and misuse. Reviewing the 1990 legislative history, the office found the purpose was to strengthen punishment levels, not to criminalize legal possession, and cited committee statements that the bill would not affect those who hold such devices legally. On that basis, it reaffirmed the position the Department had taken to the ATF since 1975.

This was an informal advisory letter signed by a senior assistant attorney general at the Attorney General's request.

Common questions

Q: Can a person legally possess a destructive device in Florida?
A: Per this opinion, yes. The office reaffirmed that Florida law allows lawful possession of destructive devices as defined in section 790.001(4), as reflected in sections 790.161 and 790.1612.

Q: Then what does section 790.161 make illegal?
A: It punishes willfully and "unlawfully" making, possessing, throwing, projecting, placing, or discharging a destructive device. The felony degree rises with intent to harm, disruption of government or commerce, bodily harm, or death. The criminal line is unlawful conduct, not lawful possession.

Q: Who can authorize possession of a destructive device?
A: Under section 790.1612, the governing body of a municipality or county and the Division of State Fire Marshal of the Department of Financial Services have the power to authorize the manufacture, possession, and use of destructive devices.

Q: Why did the ATF ask Florida this question?
A: The National Firearms Act requires the ATF to deny an application to make or transfer a destructive device if it would place the applicant in violation of state law, so the agency needed Florida's read on whether such possession is lawful there.

Background and statutory framework

Florida defines "destructive device" in section 790.001(4). Section 790.161 is the criminal statute covering destructive devices; its 1990 amendment raised punishment levels and added "possess" to the list of prohibited unlawful acts. Section 790.1612, added the same year, supplies the authorization mechanism that keeps lawful possession available by empowering local governments and the State Fire Marshal to permit manufacture, possession, and use. The felony penalties in section 790.161 are imposed as provided in sections 775.082 and 775.084. On the federal side, the inquiry arose under the National Firearms Act, Title 26, United States Code, section 5801 et seq., which conditions approval of make-or-transfer applications on compliance with state law.

Citations and references

Statutes:

• section 790.001(4), Florida Statutes (definition of destructive device)
• section 790.161, Florida Statutes (unlawful making, possession, or use; penalty tiers)
• section 790.1612, Florida Statutes (governmental authorization of manufacture, possession, and use)
• sections 775.082 and 775.084, Florida Statutes (felony penalties)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/possession-of-destructive-devices
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8159

Original opinion text

Ms. Eileen L. Husselbaugh

Division Counsel, Tampa

U.S. Department of Justice

Bureau of Alcohol, Tobacco,

Firearms and Explosives

Tampa, Florida 33602 - 3945

Dear Ms. Husselbaugh:

On behalf of the Bureau of Alcohol, Tobacco, Firearms and Explosives you have requested guidance as to whether Florida law allows the possession of destructive devices. Attorney General Bondi has asked me to respond.

Your letter states that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is charged with enforcing the National Firearms Act, Title 26, United States Code, section 5801, et seq., which requires the filing of an application to make or transfer certain firearms, including destructive devices, that are not in the possession of the United States. An application to make or transfer such firearms shall be denied if the making, possession, transfer, or receipt of such firearm will place the person making, possessing, transferring, or receiving the firearm in violation of state law.

In 1975, your office received a letter from the Florida Department of Legal Affairs stating that we found "no provision in Florida Statutes which makes it unlawful for a person to possess a destructive device as defined in section 790.001(4), Florida Statutes." Your letter recognizes that the Florida Legislature has enacted additional provisions regulating the possession of destructive devices since 1975 and the ATF has requested assistance in determining whether Florida law continues to allow the possession of destructive devices in light of changes in the law since 1975.

Section 790.161, Florida Statutes (1975), made it "unlawful for any person to throw, place, discharge, or attempt to discharge any destructive device, as defined herein, with intent to do bodily harm to any person or with intent to do damage to property, and any person convicted thereof shall be guilty of a felony and punished" as provided therein. No mention of "possession" of a destructive device was made.

Section 790.161, Florida Statutes (2010), provides that:

"A person who willfully and unlawfully makes, possesses, throws, projects, places, discharges, or attempts to make, possess, throw, project, place, or discharge any destructive device:

(1) Commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.084.

(2) If the act is perpetrated with the intent to do bodily harm to any person, or with the intent to do property damage, or if the act results in a disruption of governmental operations, commerce, or the private affairs of another person, commits a felony of the second degree, punishable as provided in s. 775.082 or s. 775.084.

(3) If the act results in bodily harm to another person or in property damage, commits a felony of the first degree, punishable as provided in s. 775.082 or s. 775.084.

(4) If the act results in the death of another person, commits a capital felony, punishable as provided in s. 775.082. In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment if convicted of murder in the first degree or of a capital felony under this subsection, and such person shall be ineligible for parole. No sentence of death shall be reduced as a result of a determination that a method of execution is held to be unconstitutional under the State Constitution or the Constitution of the United States."

Thus, the statute makes the unlawful possession of a destructive device a criminal act.

Further, section 790.1612, Florida Statutes, makes it clear that governmental entities may authorize the manufacture, possession, and use of destructive devices:

"Authorization for governmental manufacture, possession, and use of destructive devices.—

The governing body of any municipality or county and the Division of State Fire Marshal of the Department of Financial Services have the power to authorize the manufacture, possession, and use of destructive devices as defined in s. 790.001(4)."

Section 790.1612, Florida Statutes, was enacted in 1990.[1]

A review of the legislative history surrounding the changes made in 1990 to section 790.161, Florida Statutes, and the creation of section 790.1612, Florida Statutes, indicates that the intent of this legislation was to strengthen laws regarding explosive devices by changing the levels of punishment for violations of the statute, not to criminalize the legal possession of such devices. There are also statements made during legislative committee hearings that the changes to the bill "would not violate the rights of those who have these devices legally."[2]

Thus, it continues to be the position of this office that Florida law allows the lawful possession of destructive devices as defined in section 790.001(4), Florida Statutes, as is currently evidenced by sections 790.161 and 790.1612, Florida Statutes.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

[1] See s. 6, ch. 90-124, Laws of Fla., and s. 6, ch. 90-176, Laws of Fla.

[2] See House Criminal Justice Committee Subcommittee on Prosecution and Punishment, April 5, 1990, considering HB 1645, audio tape, side B, series 414, box 909.