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 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 completely misread 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: 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 case may be appealed by the State of Florida. 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.
©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Gun Watch
As long as there are gun control laws there will be people, even judges, claiming public display of a gun is against the law.
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