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.

Comments

[Noscitur a sociis]

Good.

[Bored Lawyer]

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.

You can't make this stuff up.

[Frank Drackman]

It's Florida, Jake

[SRG]

^^^ This

[Kazinski]

Florida Men.

[bevis the lumberjack]

I could see the aggravated part clearly but I was waiting for the assault part to show up and it really never did.

[Brett Bellmore]

It's the usual; Putting somebody in fear of an attack is "assault", actually contacting them is "battery".

[John F. Carr]

A "Florida man" moment, not sure if it's the chainsaw-waver or the gun-loader who best qualifies.

[Gandydancer]

What's your objection to the gun-loader?

[Brett Bellmore]

It's not like an unloaded gun would be much use against somebody waving a chainsaw, so I'm going with the chainsaw waver.

[Flight-ER-Doc]

Load inside the house. Got it!

[Gandydancer]

Not nearly as effective.

[EscherEnigma]

I've read a "Florida Man" story where a guy set up a gun range in his backyard. The backstop was a wooden fence, and apparently he had bad aim to boot, because the neigbhor's house on the other side of the fence has bullet holes in the wall.

Sheriffs refused to do anything since no one had been hurt, and the guy was firing at his property from his property.

So yeah, Florida.

[Flight-ER-Doc]

Maybe the neighbor was a known jerk?

[Carl_N_Brown]

Where I come from, your projectiles (bullets, arrows, rocks from blasting, etc) cannot cross property lines , especially cannot cross public thoroughfares, and firing bullets into someone else's house is a huge no-no.

[Kazinski]

Well where I live you can shoot anywhere you like as long as it doesn't transect a road.

I've been known to run out of my house in the middle of the night wearing just my boxers and fire my .357 wildly into the night in the general direction of an intruder, but slightly high and to the right.

Then again I live on 15 acres of heavily forested timber and adjacent to the national forest. And the bear hasn't been back since and my garbage cans are unmolested.

[Gandydancer]

What makes you think the bullets didn't go through the bullseye and the fence?

[EscherEnigma]

Trajectory.

[Grifhunter]

Just thinking about how this would have played out in New York or New Jersey......

[Frank Drackman]

Ask Bernie Getz

[Charles Nichols - CRTC]

In California, should one merely step even one inch outside the door to his home into the curtilage of his home while carrying any loaded firearm (rifle, shotgun, handgun) then he is in violation of California Penal Code section 25850 thanks to a 1976 California appellate decision which held that the exemption for "having" a loaded firearm on one's property does not mean that it is legal to also "carry" the firearm on one's property. The only split in the court of appeals is whether or not one can carry a loaded firearm on his property if the property is enclosed by a tall, sturdy fence, or other substantial barrier to entry by the public.

[Gandydancer]

The protected freedom isn't to "have", it's to "bear".

[Bruce Hayden]

Luckily, Ultimately, these decisions were before Heller, McDonald, and Bruen.

[Charles Nichols - CRTC]

The second California appellate opinion was published in 2009, the year following Heller. There were two other post-Heller opinions that said that they were not going to recognize the 2A as an individual right until SCOTUS explicitly said that the right applies to the state.

[ReaderY]

It seems pretty obvious that in a case like this the facts could be presented in two very different ways. Perhaps, as the defense claims, the tree crew was agressively insulting the homeowner’s fiancee while he merely happened to be casually carrying a gun on his own property, as is every homeowner’s right.

But perhaps, as the tree crew folks might well claim, he was directing the gun and conducting himself in a manner which, while perhaps never actually technically pointed at them, was definitely intended to and actually did communicate a threat.

I am skeptical that the courts should accept the homeowner’s view of the facts as determining the law in a case like this.

This was not a case where a hkmeowner was merely carrying a gun on his own property. The homeowner was using a gun in the context with a heated and potentially threatening confrontation with others. I see a big, big difference between the two.

I just don’t see the facts in a case like this as being so unequivocally obvious as to warrant a writ of prohibition prohibiting the true facts from being explored based on the homeowner’s view of the facts and taking them as true.

[ReaderY]

The right to keep and bear arms does not include the right to use them to threaten others. The tree crew folks were not robbers. They had an initial right to be there. It’s true they were obnoxious, annoying, and insulting, but they made no threat of violence. They may have been civilly trespassing once the homeowner ordered them off the property, but there was no aggravated or criminal trespass.

The homeowner just does not have a constitutional right to threaten them with a gun under these circumstances.

[Absaroka]

"They may have been civilly trespassing once the homeowner ordered them off the property, but there was no aggravated or criminal trespass."

Isn't refusing to leave when told (or entering in violation of signage or other notice) criminal trespass?

"Criminal trespass involves entering or remaining in a place knowing one is there without a license or privilege."

Source.

"The homeowner just does not have a constitutional right to threaten them with a gun under these circumstances."

IMHO, that would depend on details that we don't have. A 5v1 confrontation could well rise to the point of a deadly threat, depending on a lot of things. Or not.

[ReaderY]

The decision didn’t say the homeowner acted in self-defense or to deter a crime. It reversed the trial court’s decision that the homeowner acted menacingly because it held that, as a matter of law, carrying a gun openly and loading a bullet in the chamber on ones own property are never legally menacing acts as a matter of law, regardless of the details.

If it depends on the details, the writ of prohibition was wrongly issued.

[ReaderY]

More fundamentally, it would turn constitutional norms utterly on their head, it would be outrageous, to accept that the First Amendment protects true threats made by speech, yet the Second Amendment protects true threats made by guns.

The constitution would not protect the homeowner if he had threatened the tree crew with words on his own property. It does not protect him from threatening with a gun.

Guns are more serious than sticks and stones. When words are not protected, guns cannot be either. The right to keep and bear arms as interpreted by the Supreme Court’s recent cases does not apply to use of a gun to threaten others, in the absence of a true self-defense situation, which this was most definitely not. Rudeness, annoyance, insults, nastiness do not create a self-defense situation.

[MeanGene]

Are guns more serious than chainsaws? We're not given many facts here, but waving a running chainsaw, even at a dog, could imply a threat of violence.

[ReaderY]

The decision didn’t say the homeowner acted in any justifiable self-defense. It reversed the trial court’s decision that the homeowner acted menacingly because, as a matter of law, carrying a gun openly and loading a bullet in the chamber on ones own property are never legally menacing acts as a matter of law, regardless of the circumstances.

If it depends on the circumstances, the writ of prohibition was wrongly issued.

[Harvey Mosley]

They threatened his dogs with a chainsaw and sexually harassed his fiancee before committing criminal trespass by refusing to leave after he told them to get out. He did not point the gun at them. His only "threat" was showing them that he would be able to protect himself if they escalated from threats to actual violence.
Should he have waited until he was beaten unconscious before having the means to protect himself at hand?
It seems to me that five vs. one is enough of a threat to arm oneself. Factor in the chainsaw and it is obvious that a knee jerk reaction such as yours is only about animosity to gun owners.

[Ruqt]

Clarifying notes from a Florida resident. It is more likely than not that all of the crew did not speak or understand English at least as their first language and the crew would not share the same cultural respect for women and dogs and possibly not take a firearm seriously. A Florida fact for new construction, yard crews, etc. young males some of whom have families South. I have always found all such workers polite, hardworking, very friendly however an outlier - even if temporarily acting macho- is possible.

[Ruqt]

I have to clarify one thing. All of my many Hispanic friends and co workers (over a 50 year period) have had genuine appreciation for women - wives, friends, daughters, or not.

[Krayt]

I was about to say, most immigrant cultures are from more socially conservative lands, where an employee making sexual suggestions to the employer's wife, out of the blue, is ridiculously out of bounds, and the employee would never dare.

[Kenneth Almquist]

The opinion doesn't state who hired the tree cutting crew. I would guess they were hired by the property owner, partly because it is not common for landlords to allow tenants to cut down trees, and partly because (as you indicate) their interaction with the tenant doesn't seem like an interaction with an employer.