Recently, the Fourth District Court of Appeals (4th DCA) turned Florida self-defense law upside down. It has been a long-standing principle of Florida law that if you draw your weapon, even going so far as to put it up to a person’s head without pulling the trigger, you have only used non-deadly force. On the other hand, Florida courts have stated that the accidental discharge of a firearm while drawing it from a holster in a self-defense situation is considered the use of deadly force.
It Began With One Small Change
In 2014 Florida’s deadly force self-defense statute was amended. The legislature changed the wording of our self-defense statutes to allow a person to not only use, but also to threaten to use deadly force when faced with death, serious bodily injury, or the imminent commission of a forcible felony.
In relevant part Florida Statute 776.012(2) (as amended in 2014) now reads:
A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
Charged for Protecting His Own Truck
Fast forward to the present. While sitting on his front porch one night, Mr. Little saw an unknown person approach his neighbor’s mailbox. The person then walked up to Little’s car and tried to open the door. At this point, fearing his property was going to be stolen, Little yelled to the person to get away from his truck, drew his firearm, and ordered the individual to get on the ground at gunpoint, holding him there until the police arrived.
Little was charged with Aggravated Assault.
The trial court determined that the actions of the unknown person (simply opening a mailbox and pulling a door handle) did not amount to burglary or the imminent commission of a burglary.
On appeal after his conviction, the Court of Appeal was faced with two issues:
- Was Little’s attorney ineffective because he failed to argue at Little’s Immunity hearing that Little’s actions were lawful non-deadly force to protect his property?
- Did the trial court commit error in giving both the deadly and non-deadly force instruction to the jury before they deliberated?
In its decision, the 4th DCA relied on the added threat language found in the post-2014 amended statute. They decided that Little’s counsel was effective in arguing that Little had used or threatened to use deadly force to stop the imminent commission of a forcible felony, since pointing a gun is the implied threat to fire, thereby threatening to use deadly force if the targeted individual does not comply with verbal commands. Further, they held that the trial court was correct in giving both the non-deadly force and the use or threat of use of deadly force instruction, instead of only the non-deadly force instruction as Little requested.
Because of this decision, we can no longer confidently say that a person can, without firing, draw a firearm to protect themselves or their property when faced with non-deadly force or the theft of their property. Though Florida has treated the drawing of a firearm as a use of non-deadly force for decades, it appears that this may now be treated as a threat of deadly force. This decision has the potential to severely limit self-defense rights, as the threat of deadly force can only be used to answer the threat or use of deadly force or the imminent commission of a forcible felony. Floridians beware!
For any questions regarding your self-defense rights as a law-abiding gun owner, contact U.S. LawShield and ask to speak to your Independent Program Attorney.
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In the case described, Little actually pointed the firearm at the person suspected of attempting a crime. It seems the appeals court focused on that, believing that pointing the weapon was the implied threat of deadly force.
But what if a person simply armed himself as a precaution? Florida law allows for open carry of firearms on your own property. What if a citizen who straps on a holstered pistol to investigate a noise outside? Or, what if some misguided citizen follows Joe Biden’s advice, and carries a double-barreled shotgun with him to see what his watchdog is barking at, but keeps the barrels pointed in a safe direction?
Does the court intend that the mere presence of a firearm is to be interpreted as a threat to use deadly force?
Although I disagree with the way this case was handled I do somewhat understand it. Having a Concealed Weapons Carry permit and being armed is a huge responsibility and with questionable decisions comes unforgivable punishment. I am a Concealed Weapons holder and I do carry but in this circumstance I wouldn’t have drawn my firearm the only way I would ever draw my pistol would be because my life or someone else’s life was in imminent danger. And in my eyes sitting on the porch while someone was about to steal my car does not satisfy that requirement. Being able to carry a firearm Concealed legally does not make me a Law Enforcement Officer and my car can be replaced but a human life can’t and im not willing to carry someone’s ghost for the rest of my life simply because he wanted to steal something of mine. Now if I was in that car that’s a forcible Felony and most thieves who carjack are armed, now my life would be in imminent danger and then I would use whatever force necessary to protect myself. It would have been easier to dial 911 and tell the dispatch what was going on and let the Police do there job. If we are going to take on the responsibility to carry our firearms Concealed then we should be expected to act responsibly. This is why I think all Concealed Weapons holders (including myself) should be required to have continued training a certain amount of hours a month and we should also be required range time on a monthly basis. That’s just my personal opinion but doing that would teach us the right time and wrong time to act with our firearms
Great post – I agree with you; shooting someone, or threatening to do so, not to mention potential false arrest, aren’t worth the trouble for someone checking to see if the car was unlocked. If those are the only facts, threatening deadly force then holding the person at gunpoint are over reactions. As you said, if you had been in your car, and the person appeared to try to gain entry, that would be a different situation. We have enough macho cop-wannabes giving responsible concealed gun carriers a bad rep. Some legal training would be a plus.
James, thanks for reading!
I’d like to know what county/city this was in? Sounds like a liberal Sheriff to me because I don’t see my county officers arresting the man in the first place.
You are not allowed to draw on someone, just because they are stealing your property. I learned this in my FL CCW class. You have to be drawing your weapon “to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” Theft of a vehicle alone is not considered a forcible felony. It would only be a forcible felony if the defendant had been in the vehicle, which he was not. There was no imminent threat of death or great bodily harm to the defendant and the person he shot was not committing a forcible felony. The defendant was not even justified to unholster his firearm. I do not understand why U.S. LawShield is defending his actions.
Will Phillips,
Mr. Little did not shoot anyone. He only detained the would-be thief until law enforcement arrived. The arrest of Mr. Little was ridiculous and unnecessary.
Do so only rewarded the roving bands of teens who continue to pull auto door handles and steal anything they find.
These young hoodlums should be arrested for trespassing, the checking of door handles should become a felony, and the almost always “trailing” vehicle working with the thug on foot should also be charged.
I think these guys missed the point completely… I’m not an attorney, but I am a well educated senior citizen who can read and understand the plain language of the law.
Is opening a mailbox the commission of a forcible felony? No! Is trying the door handle on an unoccupied car the commission of a forcible felony? No!
Heck, folks in our subdivision routinely check the mailboxes of elderly neighbors to see if they are bringing in their mail, and if not, why not? Some check the doors on the cars and garage doors of the elderly and infirmed, who often forget to lock cars or close garage doors. I wouldn’t want somebody pointing a gun at me for simply being a good neighbor. Of course, much of neighborhood knows that some residents do this.
Nonetheless, while such activity may appear suspicious to those uninformed, it sure as heck isn’t a forcible felony. Stealing mail isn’t a forcible felony. Entering an unlocked and unoccupied car isn’t a forcible felony. Where’s the force? If when confronted, and the man attempting to enter the car then attempted to approach or threaten the owner, that could reasonably be interpreted as a forcible felony. If one now has a reasonable belief of being the victim of an assault that threatens one’s life or may inflict great bodily harm, you can draw a firearm and threaten under 776.012(2). It seems to me that US LawShield missed the point made by the judge. I believe the attorney had a guilty client and knew it, but had to offer some type of defense. I don’t see where the law permits one to threaten use of deadly force with a firearm for simple suspicion. The threshold of “a person is justified in using or threatening to use deadly force if he or she REASONABLY believes that using or threatening to use such force is necessary to prevent IMMINENT death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony”, simply wasn’t met. Mr. Little reacted too much.
Florida has very citizen friendly self-defense law. Especially when applied to seniors. Nonetheless, many Florida residents don’t know the law, and some apparently suppose they have cart blanche in wielding firearms in such manner that is inappropriate and illegal. What can you do legally? My County Sheriff has told me that one can legally place their hand on their firearm while it remains holstered. This is not a threat of deadly force, but rather an implication that potential deadly force exists and can be employed if need be. A display of readiness is NOT a threat of deadly force if one reasonably perceives a RISK of a forcible felony. Knowing the difference may prevent serious errors and associated legal consequences.
So in short, one can display the ability to exercise the threat of deadly force, but the actual threat or use of deadly force can only be applied when one has a reasonable belief that a forcible felony is imminent. Thus, good judgement is essential. Circumstances will obviously vary greatly.
Well put – thanks for the sensible commentary! So many self-appointed police wannabes give responsible gun owners a bad name!
How dose this go along with 790.053? Specifically #2 the second paragraph, with that said I don’t believe what Mr. Little did constitutes a forcible felony and I would not have done that, however I would have intermediately call the police to advise them of the situation… Please explain how I can “briefly and openly display the firearm to the ordinary sight of another person” legally and be within the law?
Thanks for the Info…
790.053 Open carrying of weapons.—
(1) Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device. It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.
(2) A person may openly carry, for purposes of lawful self-defense:
(a) A self-defense chemical spray.
(b) A nonlethal stun gun or dart-firing stun gun or other nonlethal electric weapon or device that is designed solely for defensive purposes.
(3) Any person violating this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
T Gray, I believe this portion of the law describes something like leaning over and having a shirt rise and unknowingly display a portion of your concealed weapon for instance