Loading and Openly Carrying Gun in Own Yard Isn't Criminal Use of Deadly Force Under Florida Law

"[O]ne [tree-cutting] crew member made sexually suggestive gestures towards his fiancée and another waved a running chainsaw towards his dogs with the apparent threat to dismember them ...."

From Burns v. State, decided today by the Florida Court of Appeal, in an opinion by Judge Ed Artau, joined by Judges Cory Ciklin and Burton Conner:

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….

The State charged Burns with aggravated assault with a deadly weapon for his response to a verbal confrontation with a five-man tree-cutting crew that occurred in the yard of the home he leases as a residence for himself and his family, which includes his fiancée and her son.

After one crew member made sexually suggestive gestures towards his fiancée and another waved a running chainsaw towards his dogs with the apparent threat to dismember them, Burns demanded that the crew members leave his property. Following their refusal to immediately leave, Burns retrieved his handgun from his residence and openly carried it in his yard while loading it by advancing a bullet into its chamber.

Burns moved to dismiss the aggravated assault charge on grounds that he used a justifiable level of force during the incident. After considering the evidence presented at the immunity hearing prompted by the motion, the trial court found that Burns neither pointed the firearm at any member of the tree-cutting crew nor did he verbally threaten any of them after loading the weapon. Instead, as the trial court determined, Burns simply "held the firearm by his side and continued to engage in a verbal confrontation demanding that the workers leave." …

[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 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.'").

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. In Little, we decided only that ineffective assistance of counsel did not appear on the face of the direct appeal record based on defense counsel's failure to argue, at the defendant's pretrial Stand Your Ground hearing, that the case involved the use of non-deadly force rather than deadly force….

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 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 by section 790.053, Florida Statutes (2020), or the requirements of a concealed carry license imposed by section 790.06, Florida Statutes (2020).

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.

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.

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. See § 776.031(1), Fla. Stat. (2020) (justifying the use or threatened use of non-deadly force, "when and to the extent" necessary, "to prevent or terminate" another's "trespass on, or other tortious or criminal interference with," the non-dwelling portions of one's "real" or "personal property"); see also § 810.09(1)(a)2., Fla. Stat. (2020) ("trespass on property other than a structure or conveyance" occurs when a person "willfully enters or remains in any property other than a structure or conveyance" if the property "is the unenclosed curtilage of a dwelling") (emphasis added); § 828.12(1), Fla. Stat. (2020) ("A person who … unnecessarily mutilates, or kills any animal, or causes the same to be done … in a cruel or inhumane manner, commits animal cruelty, a misdemeanor of the first degree[.]"); § 828.12(2), Fla. Stat. (2020) ("A person who intentionally commits any act to any animal … which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, commits aggravated animal cruelty, a felony of the third degree[.]"). Furthermore, after the confrontation had ensued, it was reasonable for Burns to have anticipated the possibility that he would need to act in self-defense while verbally directing trespassers off his property.

{Notably, the plain language of section 776.031(1) would not have prohibited Burns from using non-deadly force before the tree-cutting crew became trespassers as the statute allows the use of non-deadly force when a person "reasonably believes that such conduct is necessary to prevent or terminate the other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property."} …

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.

Congratulations to Ari S. Goldberg and Lawrence M. Meltzer of Meltzer & Bell, P.A., who represent Burns.