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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