What do you do when you inadvertently carry your concealed firearm into a place you’re not supposed to, and you need to use your gun in self-defense?
GIRLS’ NIGHT OUT
Ladies, imagine you head to the bar to meet some friends. You are not drinking because you are the designated driver, but you meet your friends at the local watering hole for a night out. While you sit at the bar, you realize that you did not take your firearm out of your purse and are carrying it in a bar. You decide to finish your conversation and thentake the firearm to your car, but on your way to the door, you see a man break a bottle on the bar and threaten a woman with the broken glass. He approaches her, screaming that he is going to kill her. You yell for him to stop, as you open your purse. He turns on you, approaching you threateningly with the broken beer bottle, telling you that you should have minded your own business. What do you do?
DUTY TO RETREAT
Florida law allows you to use deadly force to protect against deadly force without attempting to retreat, in many circumstances. This is not one of them.
Florida Statute §776.012(2) states that: 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 a 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.
Unfortunately, because you are engaged in a criminal activity—carrying a concealed weapon into a bar—and are not in a place you have a right to be by virtue of having the firearm concealed with you, the stand your ground language of the statute would not apply to you. Before using deadly force, you would be required to attempt to flee if you could do so safely.
Now, let’s say you live next door to the local elementary school. One afternoon, on a day you have called in ill from work, you’re lying in bed and you hear shots fired from the direction of the school. You grab your firearm and go outside, where you see a masked gunman entering the school. Wanting to protect those inside, you follow the gunman into the school, shooting and killing him right before he opens fire on a classroom full of students.
We all know that you are not allowed to carry a firearm onto school property. Does the law offer you any protection from being convicted for carrying onto school property? For not attempting to retreat prior to opening fire on the gunman? The answer is yes.
Florida law has an affirmative defense called “necessity.” Necessity is a defense to a crime, including laws regulating firearm use. It provides a defense to criminal liability, including criminal liability for firearms-related offenses. In order for the necessity defense to apply, a person must meet the following requirements:
- The actor reasonably believed a danger or an emergency existed which was not intentionally caused by himself or herself;
- The danger or emergency threatened significant harm to himself, herself, or a third person;
- The threatened harm must have been real, imminent, and impending;
- The actor had no reasonable means to avoid the danger or emergency, except by committing the crime;
- The crime charged must have been committed out of a necessity to avoid the danger or emergency; and
- The harm the actor avoided must outweigh the harm caused by committing the crime.
Necessity is an affirmative defense, which means you may be prosecuted for the crime. However, you can raise the defense of necessity, and a jury can find you “not guilty,” because through the necessity defense, they can determine that your actions were justified.
For more information about where you can legally carry your firearm and what to do when you inadvertently carry a firearm into a gun-free zone, call U.S. LawShield and ask to speak to your Independent Program Attorney.