This essay is for anyone who intends legally to carry a firearm in Florida. Whether you have a Florida Concealed Weapons or Firearms License, or are merely visiting from a state enjoying reciprocity with Florida, the same laws apply. Two chapters of Florida’s criminal code are important: 776 (Justifiable Use of Force) and 790 (Weapons and Firearms).
776.012 – The stand your ground law.
Article 776.012 answers two questions: First, when may you legally shoot someone? Second, when may you merely threaten someone?
When may you legally shoot someone?
Only when it is necessary to prevent either: your own imminent death or great bodily harm, or an imminent forcible felony. In either case, you have no duty to retreat. Six words demand clarification:
necessary — Who decides whether shooting was necessary? The jury decides this, not you, not the judge. According to Florida’s standard jury instructions that judges must read:
The danger facing the defendant need not have been actual; however, to justify [shooting], the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only [by shooting].
Incidentally, some states (California, for instance) accept irrational fear as justification to downgrade a charge from murder to manslaughter. Florida does not. And other states (District of Columbia, for example) require “actual” (objectively real) danger. There, if you shoot a would-be rapist who points pistol at you, which turns out to be unloaded, you will be convicted of homicide. This is not the case in Florida. In Florida, necessity means whether the jury agrees that a cautious and prudent person under the same circumstances would have believed that the danger could be avoided only by shooting.
prevent — Not a synonym for avenge. You may not legally shoot an attacker who has finished his crime and is now fleeing. This issue often arises weeks or months later, when a parent avenges the rape of their child, but it can also happen seconds later when a purse-snatcher is fleeing.
Example: On March 10, 2010, at Miami Bridge, a temporary shelter for neglected and homeless children in Miami-Dade County, defendant “M.S.” slapped victim “K.V.” and was charged with assault and battery. The defense argued that it was self-defense because “K.V.” had slapped “M.S.” first (about 15 minutes earlier). The court disallowed the argument because the assault could not possibly “prevent” something that had happened 15 minutes earlier.
imminent — Means within the next few seconds. You may not shoot someone now who credibly says he will attack you next week.
Example: On January 31, 2010, at another Miami-Dade school, “K.S.H.” slapped a fellow student and was charged. At trial, he claimed self-defense because the victim had threatened the defendant with a future beating. The court disallowed the argument because an undefined future threat was not “imminent”.
great bodily harm — Broken bones or permanent damage.
forcible felony — Any felony that involves the use or threat of physical force or violence against an individual. (Such as: manslaughter, sexual battery, carjacking, home-invasion robbery, robbery, burglary, arson, kidnapping, aggravated assault, aggravated battery, aggravated stalking, aircraft piracy, and unlawful throwing, placing, or discharging of a destructive device or bomb.)
Example: In Anthony Santiago v. State of Florida (2011) one side argued that drug-dealing was a forcible felony because it often results in threats of force and violence. This was disallowed by the court because threats of force and violence are not an inherent component of the crime of drug-dealing.
When may you merely fire a warning shot?
Using (shooting) a deadly weapon but without intent to kill is called “aggravated assault”. Per Florida 784.021, it draws a mandatory minimum sentence of 20 years in prison. There are no exceptions.
Example 1: In May 2008, Orville (Lee) Wollard (53), a Sea World employee with no criminal history, came home from work and found his daughter on the porch with her boyfriend. When Lee asked him to leave, the boyfriend attacked him, ripping out stitches from Lee’s recent surgery. The boyfriend left with the daughter. Lee was in so much pain that he went to the bedroom to lie down. Hours later, he awoke to find the boyfriend fighting with the daughter and punching a hole with his fist in the living room wall. Lee showed a pistol and ordered the boyfriend to leave. When the boy refused, Lee fired one round into the living room wall. The boyfriend left and called the police. Lee is now serving 20 years in state prison.
Example 2: On August 1, 2010 in Jacksonville, Marissa Alexander (31) got into an argument with her estranged husband at his home. She retrieved a handgun from her car and fired a warning shot into the ceiling. She is now serving 20 years in state prison.
Example 3: In September 2009 in Keystone Heights, Ronald Joseph Thompson (65) saw a teenager and his friends loudly threatening violence againt the elderly woman who was his next-door neighbor. He went outside with a handgun, told the boys to back off, and punctuated his command by firing two rounds into the ground. The males fled. Circuit Judge Don Lester felt so strongly at the injustice of a mandatory 20-year sentence that he declared the law unconstitutional and sentenced Thompson to only 3 years. The appeals court overruled the judge, saying he lacked the authority to ignore the law, and ordered him to re-sentence Thompson to the mandatory 20 years.
In each case, the judge was distraught at having to sentence a good parent with no criminal record to 20 years’ hard time. Nevertheless, the very fact that each defendant had fired into a ceiling, wall, or floor proved that they did not fear imminent death or great bodily harm. If they had, they would have shot to kill.
Does this mean that if you fire a warning shot in Florida, you will serve 20 years in prison? Yes indeed, you better believe it!
Does this mean that if you pull a gun on someone in Florida, you had damned well better be ready to shoot them? Yes again. In Florida you may display a weapon only if you can convince a jury that it was necessary to prevent the imminent commission of a forcible felony or to prevent your own imminent death or great bodily harm. Shooting into the ground or into the air destroys your credibility in that regard. Use a weapon to intimidate someone and you will go to prison.
776.013 – The castle doctrine.
If someone: breaks into a house or car that you are in, or tries to drag you out of a house or car, then you will be presumed (conclusive presumption) to be in danger of “imminent death or great bodily harm”. “Conclusive presumption” means that danger of imminent death or great bodily harm will be a given in court, and no evidence or testimony to the contrary will be admitted.
Example: On July 1, 2006 in Fountain (Bay County), Florida, Laurie Lynn Bartlett (37) stabbed to death her boyfriend Ernest Lamar (47). At trial, she claimed that he had entered her trailer uninvited and attacked her, so she killed him in self-defense. The prosecution did not dispute that Lamar had broken in. Instead, they focused on forensic evidence showing that the stabbing was not self-defense. (He was using both hands to carry a boxed pizza when she stabbed him.) Ms. Bartlett was convicted and sentenced to 10 years. She appealed and her conviction was overturned. The appeals court ruled that, since Lamar had entered the trailer uninvited, article 776.013 demanded the conclusive presumption that her life was in danger. Hence, no testimony nor evidence to the contrary should have been admitted at the trial. The judge wrote:
Before the enactment of… 776.013, a person was justified in using deadly force when… attacked in his or her home and reasonably believed deadly force was necessary to prevent imminent death or great bodily harm. [But] the creation of section 776.013 eliminated the burden of proving that the defender had a reasonable belief that deadly force was necessary by providing a conclusive presumption of such.
The prosecution thereupon tried her again, this time focusing on evidence that Bartlett had in fact invited Lamar into the trailer. Her invitation negated 776.013, she was convicted a second time, lost on appeal, and is now serving a 10-year sentence.
The four exceptions to the castle doctrine (776.013) are if:
- The person you shot had the right to be in the house,
- The person was retrieving their own child or grandchild from the house,
- The person was an on-duty cop, or …
- You were engaged in criminal activity in the house.
790.001(2) — Definition of Concealed
concealed — Means “carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.” Note the words “ordinary sight”. You are not at fault if someone merely sees a suspicious outline or bulge, or if, without permission, they touch you or lift your shirt or jacket to reveal it. Also, article 790.053 says that it is okay to, “briefly and openly display the firearm to the ordinary sight of another person” as long as you do not do it “in an angry or threatening manner.” Finally, you are allowed openly to carry a gun when hunting, fishing, or at a shooting range.
A truism among armed citizens in Florida is “concealed means concealed”. The law demands concealment because most people are afraid of guns in civilian hands. If a fearful person sees your gun, they may call the police. If they do, you will be arrested and prosecuted even if you followed the law.
Keep in mind that many Florida police officers oppose laws allowing citizens to own guns. The Florida Sheriffs’ Association has gone on record to this effect, and some sheriffs have publicly stated that their men are likely to shoot anyone other than fellow police officers whom they spot carrying a gun. Concealed means concealed.
Finally, be aware that many Florida police officers are ignorant of the laws. Some do not know the laws because, through no fault of their own, they have not been trained in the laws. Others are deliberately ignorant because of their opposition to the laws. This means that you can do everything right and still be arrested and prosecuted. In fact, in the twelve months after June 30, 2011 (when 790.053 took effect) fifteen legally licensed Florida citizens have been arrested and prosecuted in blatant defiance of 790.053 because someone caught a glimpse of an accidentally exposed gun. They now have criminal arrest records. Concealed means concealed.
Example: On August 25, 2011 in Miami-Dade county, Hueris Mora (23) was a passenger in the back seat of a car stopped by police. Apparently, the police had been informed that Mora was armed, so they ordered him out of the vehicle to be searched. Mora immediately informed the officers that he was carrying a legally licensed firearm and offered his license for their inspection. Upon examining his valid license the police were so enraged that they ordered him at gunpoint to raise his arms over his head, thus lifting his jacket and exposing his sidearm, whereupon they arrested him for exposing his gun. He was charged and prosecuted for not concealing his gun. Although the judge threw out the obviously illegal prosecution, Mora now has a serious criminal arrest record as well suffering as tens of thousands of dollars in legal expenses.
790.06(12)(a) — Forbidden Places
You may not take your gun into:
- 1. Any place of nuisance as defined in s. 823.05
- 2. Any police, sheriff, or highway patrol station;
- 3. Any detention facility, prison, or jail;
- 4. Any courthouse;
- 5. Any courtroom (unless ordered to by the judge);
- 6. Any polling place;
- 7. Any meeting of the governing body of a county, public school district, municipality, or special district;
- 8. Any meeting of the Legislature or a committee thereof;
- 9. Any school, college, or professional athletic event not related to firearms;
- 10. Any elementary or secondary school facility or administration building;
- 11. Any career center;
- 12. Any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose;
- 13. Any college or university facility;
- 14. The inside of the passenger terminal of any airport; or
- 15. Any place where the carrying of firearms is prohibited by federal law.
Several of the above prohibitions are confusing. Unfortunately, there is little caselaw to resolve their ambiguities because most Florida gun owners take “concealed means concealed” seriously. Nevertheless, here are some possible clarifications:
place of nuisance — Means an illegal brothel, gambling parlor, or drug house.
police station — Some malls have sheriffs’ substations inside the mall. In this context, the “police station” is the individual bay, not the entire mall.
government meeting — Places where meetings are held are okay, as long as no meeting is underway. It is the meeting itself that is forbidden, not the building. Warning: I have yet to meet a police officer who understands paragraph 8. They will arrest and prosecute you for entering city hall, even when no meetings are scheduled. The case will be thrown out, but it will cost you tens of thousands of dollars in legal expenses and you will have a criminal arrest record.
career center — I cannot find anyone who knows what this means.
bar — Note that Florida lets you carry into a restaurant that serves alcohol as long as you do not enter the bar area. In some restaurants (Applebee’s, for example) you must walk through the bar area to reach the restrooms. Technically, this would be illegal but no one has ever been arrested for it. In one case, a lifelong member of a VFW post was convicted of carrying a gun into a bar because the jury decided that the entire building in which the VFW was located was a bar. Concealed means concealed. Also note that many states (NC and SC, for example) forbid your even entering a restaurant that serves beer, wine, or liquor.
college facility — This probably means buildings, but not grounds or parking lots. Unfortunately, the people affected most are students or teachers, who are subject to the college’s policies. And so for example, while it may be legal as far as the state is concerned, to leave a gun locked in your car trunk in a college parking lot, it may be grounds for expulsion if you are a student or being fired if you are a teacher, regardless of the law.
federal law — Federal law says that you cannot carry into a federal building where federal employees work. Two things to keep in mind: First, mom-and-pop franchise USPS counters are not federal buildings, and their postal clerks are not federal employees. Second, national parks routinely post signs to indicate which buildings are forbidden (gift shops, for example) and which are okay (restrooms). After carrying for a while, your noticing such signs will become second nature.
County and Municipal Gun-Free Zones
Article 790.33 explicitly makes null and void every local law, ordinance, or regulation regarding firearms. Chapter 790 is the totality of Florida firearms law.
Nevertheless, countless Florida counties and municipalities post signs forbidding firearms in certain places (parks, museums, libraries). The signs are illegal. If you are arrested or prosecuted for ignoring them, the individual members of the legislative body responsible may be personally sued by the political action group, Florida Carry, Inc. and they may also be personally criminally charged and prosecuted. (See article 790.33(3) paragraphs (b-f).)
Private Gun-Free Zones
Some private businesses (Disney World, Cinemark movie theaters, some banks, some churches) post signs prohibiting concealed carry on the premises.
Example 1: Starting in 2009, Cinemark Holdings, Inc. was repeatedly warned that their policy of denying movie admittance to legally armed citizens was creating gun-free zones that would attract mass murderers. The July 20, 2012 mass murder at a Cinemark theater in Aurora, CO has triggered discussion of class action lawsuit by victims who were disarmed by the Cinemark corporation.
Example 2: In April 2012, a Colorado church was the target of a similar would-be mass murderer. The church was not a gun-free zone, and legally armed churchgoers were welcomed. The murderer got off one round before he was shot to death.
In Florida, such “gun-free zone” signs have no legal weight and you may safely ignore them, just as you may ignore municipal or county signs. Concealed means concealed. On the other hand, since such premises are private, not public, if someone in charge orders you to leave the premises for any reason whatsoever (including for carrying a gun in defiance of the signs), you must leave immediately. Do not argue. Do not ask why. Just leave. Immediately. Otherwise, you commit a serious felony: armed trespass.
Finally, there are many obsolete prohibitions against sidearms (in bus stops, hospitals, and other places) scattered throughout Florida’s penal code outside of Chapter 790. No one knows whether they are still valid, given 790.33. Most of these prohibitions say “unless authorized”. Hence, until a court rules otherwise, holders of the Florida Concealed Weapons and Firearms License assume that they are thereby “authorized”.
For more on Florida laws of interest to armed citizens, I recommend Florida Firearms Law, Use, and Ownership by Jon Gutmacher.
Next Time: Videotaping Police — The Issue of Qualified Immunity
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Frank W. Sweet is an NRA-certified firearms instructor who teaches the safe and effective use of handguns for self-defense. He was awarded an M.A. in Civil War Studies in military history from American Military University in 2001. He is the author of Legal History of the Color Line (ISBN 9780939479238), Six Gems of Forgotten Civil War History (ISBN 9780939479023), and of numerous published historical essays. To receive a schedule of his firearms training courses, email to firstname.lastname@example.org. The information above should not be construed as legal advice.
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