FLORIDA FIREARMS – Law, Use & Ownership

Burns v. State – a critically important self defense case in Florida.

By:  Jon H. Gutmacher, Esq.

In what is one of the most important self defense cases to come out of the Florida appellate courts in years is Burns v. State, 48 Fla.L.Weekly D1067 (Fla. 4DCA 5/24/2023). Burns involved a charge of aggravated assault that happened in the yard of a home Mr. Burns was living in and renting with his fiancee, child, and dogs. A tree cutting crew of five men were doing work in the yard against Mr. Burns directions to stop and leave, and a verbal confrontation ensued with one of the men threatening Mr. Burns dogs with an operating chainsaw, and another making lewd comments directed to Mr. Burns fiancee. When the crew continued to refuse to leave, Burns went back into his home and retrieved his handgun, and chambered a round while continuing his demand that the tree cutting crew leave the premises. 

It is important to note that Burns never pointed the firearm at anyone, nor verbally threatened to use the firearm. The State argued the display of the firearm and chambering a round was an armed threat of using deadly force, and that there was no indication from the tree cutting crew of imminent danger of death or great bodily harm, therefore the threat was an aggravated assault. The trial court denied immunity on this basis.

 In an opinion completely rejecting the trial court’s decision, Judge Ed Artau, of the Fourth District Court of Appeals, an appointee of Governor DeSantis, held that Burns had an absolute right to open carry his firearm on his home premises per F.S. 790.25(3), and that a person has an absolute right of self defense to have a firearm in hand and loaded on their own residential or business premises in anticipation of trouble without such being a “threat” so long as the firearm is not pointed at another person, and there is no verbal threat to use it against the other(s), the opinion stating:

“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.”

The opinion goes much further than this, as it also notes that the tree cutting crew was committing at least a misdemeanor trespass when it refused to leave the premises after being ordered to do so, and that even if the situation had occurred on property that was not residential or business, a person has a right to briefly and openly display a firearm in a non threatening manner pursuant to F.S. 790.053(1). Thus, Mr. Burns was entitled to immunity as a matter of law, and the trial court was ordered to dismiss all charges.

What is critical about this case is the closure of a previous “grey area” whether the display of a firearm, alone, without pointing is always a “threat”. This is because F.S. 776.012 states that the threat or use of deadly force is not lawful except where necessary to stop or prevent imminent death or great bodily harm, or to stop or prevent the imminent commission of a forcible felony. Of course, previous case law made it clear that pointing a firearm was not the “use” of deadly force. Still, the case law indicated it could be a “threat” of using such. And, if it was a “threat”, then that would elevate the mere display of a firearm to be an aggravated assault unless the defender reasonably believed they (or another) were in imminent danger of death or great bodily harm, or it was necessary to stop or prevent the imminent commission of a forcible felony.

Now, of course – such a requirement of “non-display” is both dangerous and unworkable in the real world in real self defense situations – which normally happen in seconds, or split seconds. Likewise, almost all firearm instructors, myself included, have long argued that having a loaded firearm in hand, and at the ready – can be many things other than a “threat” – but is more akin to just “being ready” in case the firearm becomes needed, or serving as a “warning” that if necessary, the armed individual has a means of defending themself. Without these protections the right to self defense under the Second Amendment, and Florida Constitution become hollow, and treacherous. So, the Burns case has settled the question – at least that it is not unlawful to “display” or even load a firearm in a tense situation – as long as it is not pointed, nor is there a verbal threat to use it.

What is not answered, is whether having the firearm in a “low and ready” position is a threat? Whether warning someone “I have a firearm, and will use it if necessary”, or words to that effect are a “threat”, a “warning”, or just a “conditional statement” depending on future events. For now, the problem of what is or is not a “threat” continues to be an unresolved quagmire of confusion. Likewise, the 2005 addition of “threats” into the language of the self defense statutes – which is what caused this legal mess in the first place – continues to be the most serious threat to the concept of what is, or what is not self defense in Florida. It was a mistake back in 2005 when it was added to the statutes, and continues to be a horrible mistake now. The use of self defense should only be based on what is reasonable and necessary to stop or prevent imminent death or great bodily harm, or to stop or prevent the imminent commission of a forcible felony. This was the law prior to the amendment in 2005! Adding the current prohibition– makes no sense at all, and turns the Second Amendment upside down. It needs to go!