If The McCloskeys lived in Florida

McClosky Article

If The McCloskeys lived in Florida

What if the McCloskeys lived in Florida?

By now, you are almost certainly familiar with the St. Louis couple that are accused of pointing firearms at protesters that passed by their home.  Since the incident, we have received hundreds of questions asking us what rights a Florida gun owner would have to protect their property in the event of rioting and protests.  Most have asked if the McCloskeys’ actions were legal or not.  As none of the lawyers at the Firearm Firm are licensed in Missouri, we will not comment on their situation and the legality of their actions in their home state.  However, that leads us to the important question of, “What if the McCloskeys lived in Florida?”

Justified in displaying firearms?

In Florida, the actions of the McCloskeys would be considered the use of force.  If the protesters made threat of imminent harm to the McCloskeys or their property, then in Florida they would be justified in displaying their firearms to discourage the protesters from carrying out those imminent threats of harm. Yes, even Mrs. McCloskey would have been within her rights, pointing the firearm at the protesters under those circumstances.  Let’s take a deeper look at the laws that might have applied if the McCloskeys lived in Florida.

There are varying accounts of what actually happened in St. Louis.  We will try to address all the different variables that would change the legality of the actions the McCloskeys took, if this had happened here in Florida.  We will begin with a discussion of openly possessing a firearm while standing on one’s own property, then discuss encounters with peaceful protesters and finally conclude with encounters with violent protesters and rioters. 

Open carry of a firearm at your home

Florida law generally prohibits the open carrying of a firearm of any type.  There are several important exceptions to this general prohibition however, one of which is important in the situation the McCloskeys found themselves in.  Florida Statute §790.25(3)(n) allows the open or concealed carry of firearms at a person’s home, including the property immediately surrounding the home.  Of course, if you are otherwise prohibited from possessing a firearm, this does not apply to you.  Further, it is important to note that the statute uses the word “home,” not property.  Contrary to the belief of many, you cannot carry a firearm openly or concealed because you are on property you own in Florida.  If the McCloskeys lived in Florida, they could legally stand in front of their home while openly carrying handguns and rifles.  However, if you choose to openly carry on the property of your home, it is highly likely you will encounter law enforcement.  Your neighbors may very well call 911 seeing you walking around the front of your home with your AR-15.     

Encountering Protesters in Florida – Peaceful

Now, let’s discuss peaceful protesters.  As you are likely aware, the First Amendment to the Constitution protects free speech.  It also guarantees the right to peaceably assemble and petition the government for redress of grievances.  In today’s English, that means that we as Americans have a Constitutionally protected right to peacefully protest.  If protesters were peacefully protesting on the streets in front of your home, you could not use force of any kind against them to disburse the protest or to get them to move somewhere else.

Now that we have addressed peaceful protests in the street, let’s talk about peaceful protesters who enter your private property.  Florida law (Florida Statute §776.031) allows the use of Force, but not deadly force to remove trespassers from your land.  Please see our blog posts on the difference between force and deadly force by clicking here.  Prior to using force, notice must be given to the person or people that they are not allowed to be on the property.  If they fail to leave, force may be used to remove them from your property.  Of course, this may not be the best course of action, especially in this example when you are dealing with people who are peacefully protesting.  The best thing to do would be to call the police and await their arrival to remove the trespassers.

Encountering Protesters in Florida – Violent Protesters

Finally, we must address your rights in Florida, if Like the McCloskeys you were confronted with violent protesters.  Of course, the safest course of action might be to retreat into your home and call the police.  But Florida law does not require you to do that.  First, we will focus on protesters only yelling threats at you, then we will discuss those who use actual violence.

Threats of Violence

Ok, so you find yourself in a situation like the McCloskeys, but you are in Florida.  Angry protesters have entered your neighborhood and are yelling threats at you.  What can you legally do to protect yourself and your property (which includes your pets), in Florida?  “WHOA, wait a second!” you think to yourself, “Did he just call my precious little ‘poopsie whoopsie fluffy baby’ property?  How dare he!”  YES! Under Florida law your fur babies are ONLY property and are treated as such when it comes to self-defense and defense of property cases.  You have no greater right to protect your dog or cat (or any other pet) then you do your car, watch, jewelry, or other property.  Under the law you could use force, but not deadly force to protect your property against a person attempting to harm your pets or destroy your property.  So, if a protest is passing by and one of the protesters runs over to your dog that is chained up on your property and kicks it, Florida law would not allow you to answer by opening fire. 

Further, if unarmed protesters were walking past you home and began yelling threats at you, generally, you would not be justified in using force to stop the threats.  The key above is that the protesters are yelling the threats as they continue to walk past.  A review of Florida’s use of Force Statute would be helpful.  Florida Statute 776.012 reads:

776.012 Use or threatened use of force in defense of person.

(1) 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. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

(2) 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.

Under Florida law, you are only justified in using force if you reasonably believe it is necessary to defend against the imminent (immediate) use of force against you or another by an attacker.  If people are standing still or moving away from you and are at a distance to far to carry out the threats they are yelling, you cannot use force against only their words. 

Remember, I mentioned at the beginning of this article that if the slightest fact changed, the answer might change.  Well, consider the above scenario, but instead of standing still, or walking away from you while yelling the threat, the protesters are getting closer.  Now imagine one starts running toward you.  If they are a football field away, it is not likely reasonable to believe an attack is imminent, but you do not need to wait until they reach you and start hitting you before you have a right to defend yourself.  Ultimately, it may come down to a jury’s decision if your action and the timing of when you acted was reasonable under the circumstances. 

Encountering Protesters – Armed and violent

What if the protesters are armed and threatening you with deadly force?  For instance, yelling threats to kill you and pointing a gun at you.  Under Florida law, you would be justified in using or threatening to use deadly force to answer the threat of imminent deadly force being used against you.  Again, please note, that the threat must be an immediate threat.  If an unarmed protester yelled to you that they were going to go home, get their gun and comeback and kill you tomorrow, you would NOT be justified in using deadly force to protect against the future threat of deadly force.

The Castle Doctrine

Assume that you retreated into your home or onto your attached porch when the demonstrators approached.  Further, like the McCloskeys, assume you were armed. If the protesters began to try to enter your porch or your home, illegally and forcefully under the Castle Doctrine, you would be presumed to be justified in using deadly force against them.    

Under Florida Statute 776.013, a person is presumed to be in fear of death or great bodily harm when using defensive deadly force against another who is in the process of illegally and forcefully attempting to enter or has already entered a person’s residence (among other places).  The person who is attempting to or has already forcefully and illegally entered your residence is presumed to have done so to commit violent acts, therefore the law presumes it reasonable to use deadly force in defense.  To learn more about the Castle Doctrine, please click here.

Finally, we need to discuss exhibiting a firearm in a rude, careless, or threatening manner not in necessary self-defense and like Mrs. McCloskey pointing a firearm at people.  To analyze this topic, we need to know some case law.  In Florida, the Courts have ruled that as a matter of law, the display of a firearm, even if held up to someone’s head, as long as the trigger is not pulled, is only the use of force. See Jackson v. State, 179 So.3d.443 (5th DCA 2015).

If you are standing on your property open carrying and a protest happens by, as long as you do not make any threatening motions with the firearm, you have not broken Florida law.  But if you are carrying concealed and you display the firearm to the protesters, without lawful justification as discussed above, you will likely face a misdemeanor charge of Improper Exhibition of a Firearm.  See Florida Statute §790.10.  Finally, if without lawful justification, you point a firearm at someone, including a protester, you would likely be charged with Aggravated Assault under Florida Statute §784.021. 

Based on the laws in Florida we have just discussed, it is clear that if the McCloskeys lived in Florida, their actions would be justified if there was an imminent threat of harm to themselves or their property.   

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