May 2023

May 2023

Use of Force Not Threat of Deadly Force!

The 4th DCA joins the rest of the State.

In February of 2021, we wrote an article about changes in Florida’s Use of Force Law.  At the time, the 4th DCA had decided the case of Little v. State, in which it appeared that the 4th DCA had turned its back on long standing Florida precedent and ruled that the pointing of a firearm was the threat of deadly force instead of the use of non-deadly force.  Today, we are happy to be able to tell you that the court that gave us the decision in Little v. State, 302 So. 3d 396 (4^th DCA, 2020) clarified the meaning of their ruling in that case and additionally affirmed that the 4^th District Court of Appeals still follows the long standing precedent that the display of a firearm without more and without pulling the trigger was by law only the use of force (non-deadly).  This is the case even if you put a gun up to a person’s head.  See Rivero v. State, 871 So. 2d 953, 954 (Fla. 3d DCA 2004) and Jackson v. State, 179 So. 3d 443 (Fla. 5^th DCA 2015).

Why it matters

A person who uses or threatens to use non-deadly force is held to a lower legal burden.  Under Florida law, a person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.  However, to use or threaten deadly force a person is only justified 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.

What Changed?

On Thursday, May 25, 2023, in Burns v. State, Case No.: 4D22-3247, the Forth District Court of Appeals overturned the lower’s court denial of immunity for Mr. Burns. (The opinion can be found by searching the 4th DCA website)  The 4th DCA wrote, “[r]elying on Little v. State, 302 So. 3d 396 (Fla. 4^th DCA 2020), the trial court denied Burns’ motion on grounds that his ‘menacing’ act of chambering a round in the firearm, coupled with the display of the weapon without pointing it at anyone, constituted an unjustified threatened use of deadly force.”  After determining that the standard to be used was the deadly force standard the lower court determined that, “because Burns was not in reasonable fear of imminent death or great bodily harm at the time of the incident, his actions were not justified under the circumstances.”

The 4^th DCA disagreed.  In their analysis the 4^th DCA wrote: “the trial court’s reliance on our decision in Little, in support of its conclusion that Burns’ actions amounted to a threatened use of deadly force, was entirely misplaced… Unlike the defendant in Little, Burns merely openly carried his firearm on his home property. Burns did not point the firearm in the direction of another, nor did he threaten or physically force another to do something or risk suffering the discharge of a pointed firearm.”

The 4^th DCA concluded its opinion by writing: “Openly carrying or displaying a firearm, and loading it by advancing a bullet in its chamber for it to be ready for use if needed, does not constitute the unjustified or threatened use of deadly force as a matter of law. Moreover, Burns had a lawful right to openly carry his firearm on his home property. Thus, Burns is entitled to immunity from prosecution for his non-deadly use of his firearm during the incident.”

Pointing of a firearm non-deadly force throughout Florida

Prior to the ruling Wednesday, those located in the jurisdictional area controlled by the 4th DCA’s opinions were potentially treated differently than those in the rest of the state.  Just as the lower court in the Burn’s case understood the Little ruling, many believed the 4th DCA had declared that as a matter of law the pointing of a firearm had become the threat of deadly force, subjecting the defender to a higher legal standard of conduct than the use of non-deadly force.  It now appears that throughout the state the law is once again uniform in that the display of a firearm, even going so far as to putting it to a person’s head without more is by law only the use of force and NOT the threatened use of deadly force.  Floridians can rest easier knowing that the law will now treat them the same regardless of where in the state they are.