Florida: Loading & Carrying a Firearm on Private Property is NOT Use of Deadly Force

Gun Control in Florida Costs Lives, Allexxandar-iStock-884197090
Gun Control in Florida Costs Lives, iStock-884197090

U.S.A. — On May 24, 2023, a three-judge panel of the District Court of Appeal of the State of Florida, Fourth District, which includes Broward County, found the circuit court judge, Michael I. Rothschild, to have egregiously misread Florida law. The three-judge panel, consisting of judges Artua, Ciklin and Conner, unanimously found loading and openly carrying a firearm in a person’s own yard is not use of deadly force and is protected conduct under both Florida law and the Second Amendment of the US Constitution.

Richard Burns engaged in a verbal confrontation with a five-man tree-cutting crew in his front yard. A crew member made sexually suggestive gestures toward his fiancee. Another crew member threatened his dogs with a chainsaw. Burns demanded the crew leave. When they refused, he retrieved a handgun from the home. He was in his front yard when he chambered a round. He held the handgun at his side while again demanding the tree-cutting crew leave his front yard. The State of Florida charged Burns with aggravated assault. Burns asked the circuit court to apply immunity from prosecution, citing Florida Stand Your Ground Law. The circuit court refused.

Burns then appealed the decision to the District Court of Appeal of the State of Florida, Fourth District.  The appeals court found for Richard Burns. Selected quotes from the opinion are shown below.

That a person’s home is his or her “castle” is one of the most basic tenets of our jurisprudence. However, for Richard Burns …, charged with aggravated assault with a deadly weapon for openly carrying and loading his firearm in the yard of his own home, the “castle” our law entitled him to protect was relegated to a defenseless dungeon. We conclude that the trial court erred in denying his motion for immunity from prosecution pursuant to Florida’s Stand Your Ground law. We therefore grant his petition for writ of prohibition because he is legally entitled to immunity from prosecution on the aggravated assault charge.

Richard Burns did not point his handgun at anyone.

[T]he trial court denied Burns’ motion on grounds that his “menacing” act of chambering a round in the firearm, coupled with the display of the weapon without pointing it at anyone, constituted an unjustified threatened use of deadly force. The trial court determined that, because Burns was not in reasonable fear of imminent death or great bodily harm at the time of the incident, his actions were not justified under the circumstances. We disagree

The mere display of a firearm is not the use of deadly force.

The display of a firearm constitutes non-deadly force as a matter of law. See, e.g., Cunningham v. State (Fla. Ct. App. 2015) (recognizing that “the mere display of a gun is not deadly force as a matter of law”); see also Howard v. State (Fla. Ct. App. 1997) (“[E]ven the display of a deadly weapon, without more, is not ‘deadly force.'”).

The trial court misread entirely the appeal court precedent in the Little case.

Moreover, the trial court’s reliance on our decision in Little, in support of its conclusion that Burns’ actions amounted to a threatened use of deadly force, was entirely misplaced.

The Second Amendment bars unjustified federal or state intrusion on the right to keep and bear arms.

The Second Amendment to the United States Constitution guarantees “an individual right to keep and bear arms.” Central to this right, as the Supreme Court explained in Heller, is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The federal constitutional right guaranteed by the Second Amendment stands as a barrier between the individual and any unjustified federal or state intrusion upon that right.

Florida law against open carry does not apply to a person’s home or place of business.

Florida grants to all persons who have not been legally disqualified from owning, possessing, and using firearms not only an individual state constitutional right “to keep and bear arms in defense of themselves,” but also the statutory right “to own, possess, and lawfully use” weapons, including firearms, at a person’s “home or place of business” without the restrictions against the open carrying of weapons or
firearms imposed…

Even outside a person’s home property or place of business, open carry is partially protected.

In other words, Florida provides a statutory right to openly carry a weapon or firearm while on one’s home property or place of business. Even when one is not at his or her home property or place of business, it is not unlawful in Florida to “briefly and openly display” a lawfully carried firearm “to the ordinary sight of another person,” so long as the firearm is not being “intentionally displayed in an angry or threatening manner” when the display of the firearm is “not in necessary self-defense.” These statutes recognize that a firearm is not just a collector’s item that is stored out-of-sight indefinitely. For a firearm to be useful for self-defense, it must be readily available and loaded, neither of which can be effectively and safely done if the firearm cannot be taken out of concealment or storage and openly displayed while being loaded and held.

Richard Burns had the right to display his firearm in anticipation of possible use, even if he were not on his home property.

As section 790.25(3)(n) permits, Burns had the right to openly carry the firearm he displayed and loaded because he was on his home property. Even if Burns had not been on his home property, it would not have been unlawful, as authorized by section 790.053(1), for him to “briefly and openly display” his firearm in anticipation of possibly needing to use it for his and his fiancée’s protection during his confrontation with the tree-cutting crew.

Once Richard Burns told the tree-cutting crew to leave, and they refused, they became trespassers. The trespass and the threat to his dogs both justified his actions.

In addition, after Burns asked the tree-cutting crew to leave his property, and they refused to immediately do so, they became trespassers, justifying his legal right to use non-deadly force, including his constitutional and statutory right to openly carry or display his loaded firearm, to assist him in not only terminating the trespass, but also in preventing the reasonably perceived tortious and criminal interference with his dogs, which are his personal property.

Conclusion: The trial court ordered to dismiss the charges against Burns.

Openly carrying or displaying a firearm, and loading it by advancing a bullet in its chamber for it to be ready for use if needed, does not constitute the unjustified or threatened use of deadly force as a matter of law. Moreover, Burns had a lawful right to openly carry his firearm on his home property. Thus, Burns is entitled to immunity from prosecution for his non-deadly use of his firearm during the incident with the tree-cutting crew. See § 776.032(1), Fla. Stat. (2020) (granting “immun[ity] from criminal prosecution” for any use or threatened use of force “permitted in s. 776.012, s. 776.013, or s. 776.031” (emphasis added)). We therefore grant Burns’ petition for writ of prohibition and direct the trial court to grant his motion to dismiss, thereby discharging him from further criminal prosecution on the aggravated assault charge.

The State of Florida may appeal the case. This opinion is straightforward. In some jurisdictions, the mere display of a firearm has been, at times, viewed as an aggravated assault. This opinion is a step promoting the commonsense concept of the practical need for defensive display of firearms in situations where deadly force is not immediately required.


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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gregs

judges should be scored on the number of overturned decisions for them to be allowed to remain as a judge. if you cannot interpret the law correctly, you should not be allowed to adjudicate legal actions. seems simple enough.
same thing should also happen to law enforcement officers, leo’s. after they violate a said number of individuals civil right they should forfeit the right to enforce laws.

swmft

jailed for violating rights 3 strikes law for cops

TGP389

In Florida, judges are voted in for a term. At the end of the term, they are put on the ballot with the question, “Shall John Schmuck (insert real name here) be retained as judge in the 5th Circuit?”

I ALWAYS vote no, unless I happen to know them personally and approve of them. Let them run again if they were any good. Unfortunately, they’re almost never voted out.

Toxic Deplorable Racist SAH

Another citizen enjoining his rights to protect himself against those who would do him (possible) harm – and that includes the state.

Hazcat

Yet another reason we must push back against the RINOs and NRA (Marion Hammer) and get open carry passed in Florida.

KenW

I wouldn’t throw Hammer under the bus so quickly as she did oppose the assault weapons ban that they gun-grabbers tried to get put on the ballot, where it would have been an amendment.
The tourism lobby probably has more to do with open carry not being passed than Hammer.

Hazcat

In 2016 she flat out opposed it.

BTW I did not down vote you.

Last edited 9 months ago by Hazcat
Jaque

Florida AG Ashley Moody brought the case against Richard Burns. Thats puzzling to me as Moody recieved high marks on her defense of the 2nd Amendment.

Maybe shes a Trojan Horse

As a Floridian I open carry on my residential property all the time, and have yet to be challanged by a “Karen” or “Fud.”

KenW

It seems to me that this case would have been brought forward by the local DA not necessarily the AG.
On the other hand, AG Bondi as well as Gov. Scott both had high marks on 2A, and Bondi was gleeful when the Parkland bill was passed.

Jaque

Read the opinion. Moody and her assistabt AG are named as the “respondant”

totbs

I think AG Moody should have to make a rather large deposit from her personal bank account(not the state), into Burns’ bank account for injury to Burns” 2A rights and punitive damages for making such an asinine decision to charge him.

Grigori

The judge in error’s last name was Rothschild. What could possibly go wrong, there?

Boom

Grigori gets it.

hippybiker

“Oy Vey! We’re so persecuted!” Yeah! You should be prosecuted! You know who you are.

Ledesma

Leftist doctrine makes no distinction between the peaceful silent gun and the raging criminal gun. No distinction.

Link

Just wondering what was the tree service reason for being there.
Getting rid of dead trees, clearing power utility lines ??
It’s not like FL is a big firewood need area.

I’m not disagreeing in any way.

Hazcat

Probably clearing power lines. Many of the contractors will butcher your trees when performing this ‘service’.

hippybiker

You’re spot on. Most of the tree cutting service where I live in Florida use illegal aliens. They could care less about butchering trees!

KenW

Florida unlike California keeps the power lines cleared.

FL-GA

I wonder the same thing. FPL does have the legal right to enter or direct others to enter private property to perform work. However, even then the work must be performed in a “workmanlike” manner. I’d be interested to learn more about this case.

DDS

I’m not sure how wide spread the practice is, but pretty much everywhere I’ve lived in Florida provides utility easements where power, phone internet, cable, gas, and other utility providers are allowed to place and maintain their equipment. Property owners are supposed to allow and provide access to utility crews and/or designated contractors who need to conduct that work. Property owners are also supposed to keep their landscaping away from overhead utilities and avoid placing large trees in those easements. So property owners have the option of having a certified arborist of their choosing come by keep their trees clear… Read more »

Boom

DDS — That’s absolutely right. More than likely, they weren’t even on his property… A lot of homeowners tend to think they own all the way up to the edge of the road….nope. wrong. But they do have an assumption of maintenance… Meaning that it’s not theirs, but they are expected to keep it up…(I’m mainly talking about the grass) And guess what? If they “have” trees in the right of way….nah beeotch, you mean the city has trees in the right of way. …THOZE MY TREES PUNK. muahahHaah…. Yeah I get it… It was an unsettling experience, to be… Read more »

Hazcat

Nope. You do own your property to the boundary markers. In my case that is to the edge of the road.

However the municipality in which you reside most likely has an easement .This is for side walks, road widening etc..

You are taxed on that property. In those places where you are charged for rainwater run off you would be charged if you have made that part of your land impervious to soaking in rain water. You are also responsible for upkeep of improvements made to that area such as deicing the sidewalks and keeping them free from obstructions.

Boom

Hazcat — not quite. That’s not an easement… It’s a right of way .. an easement is when the gov entity has a “path”, or area they can cut through; to get to something. Unless that’s a private road (as in a private neighborhood/hoa, etc), you most certainly do NOT own all the way up to it… Whether it’s a municipality, or county gov, or the State… Some one ‘owns’ the right of way, as part of the ‘roadWAY’….and it’s not you. Sorry to burst your bubble. Your boundary ends at the edge of the roadWAY, yes… According to the… Read more »

Hazcat

What I was getting at is: My property markers are at the edge of the road. The city has an easement (right of way) to another ten feet or so to my side of the side walk, yet I am responsible for and pay taxes on that 10 feet.

Boom

Musicman — That doesn’t happen around here. But I’m sure it might in some places

Boom

Musicman — It’s funny you brought that up ..we were just talking about that the other day… about how “you don’t see to much of that anymore” …. I remember about 25yrs ago, my friends father owned a veterinarian clinic… The state was redoing some highways, and linking some that hadn’t been before… Well, they tried to get the property and he fought fought fought it… well, he finally gave in. They paid him 100s of thousands of dollars, and essentially gave him covered parking…. They put an overpass / ramp over his place.. But I’m sure not all cases… Read more »

Last edited 9 months ago by Boom
Boom

Musicman — Dang it, I got censored for some reason…oh well, it’ll come through eventually.

The state I’m in is Louisiana

Boom

Musicman — I’ve been trying to respond to this for days, phone is messed up…anyway, I was gonna say…. there are plenty of times/places for Mardi gras, that aren’t New Orleans…, all along the I-10 corridor… obviously, new Orleans is the original…

Nighttime is okay, just use your situational awareness…no different than anywhere else… if you walk, cover the top of your drink with your hand… holding by the top would be fine… don’t get hammered.

Boom

Music — Ho..lee smokes… No, I haven’t seen that…

Yes, there are three lists… the green list, the amber list, and the red list.

….im willing to bet you’re at least on the amber list… :/

Boom

OPE — your comment dissappeared… opsec I guess… I can’t fault you….anyways… yeah, that’s gonna be a great time… ya know, Lafayette is my home town… there’s no other place like it.. a little big city… good vibes.

I live further north now… you’ll probably pass thru my area on your way…unless you take east Texas down to 10… but if you take 49S.. you be in my area.

I hope yall have a great time.

TStheDeplorable

If open carry constituted an “assault” just because it scares people, police would have to arrest each other every single day. Hoplophobia is in one person is not assault by the other. What about very muscular people, or people wearing martial arts black belts; are they “assaulting” everyone simply because they are frightful for some people to behold?

hippybiker

Florida! ‘The Gun Shine State! And, we here in Florida are proud of that and like it that way!

TGP389

Oh, man. In legal circles, the trial judge just got a well-deserved beat-down. Unfortunately, it was verbal instead of physical.

No trial judge wants to be reversed, certainly not with such strong language.

Boom

Shout Show Shove Shoot.

Topsyturvy

Can someone clarify the specific legal definition of “private property” in the context of Florida’s laws regarding loading and carrying firearms? Are there any exceptions or limitations to this definition?

Get Out

Burns should have called the police when he asked the crew to leave and let them handle it.