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Loading and Openly Carrying Gun in Own Yard Isn't Criminal Use of Deadly Force Under Florida Law
Reason.com ^ | 5/24/23 | Eugene Volokh

Posted on 05/25/2023 9:13:57 AM PDT by CFW

From Burns v. State, decided today by the Florida Court of Appeal, in an opinion by Judge Ed Artau, joined by Judges Cory Ciklin and Burton Conner:

That a person's home is his or her "castle" is one of the most basic tenets of our jurisprudence. However, for Richard Burns …, charged with aggravated assault with a deadly weapon for openly carrying and loading his firearm in the yard of his own home, the "castle" our law entitled him to protect was relegated to a defenseless dungeon. We conclude that the trial court erred in denying his motion for immunity from prosecution pursuant to Florida's Stand Your Ground law. We therefore grant his petition for writ of prohibition because he is legally entitled to immunity from prosecution on the aggravated assault charge….

The State charged Burns with aggravated assault with a deadly weapon for his response to a verbal confrontation with a five-man tree-cutting crew that occurred in the yard of the home he leases as a residence for himself and his family, which includes his fiancée and her son.

(Excerpt) Read more at reason.com ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Extended News; US: Florida
KEYWORDS: 2ndamendment; banglist; castledoctrine; firearms; fl; florida; standyourground; threats
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To: cdnerds

Yep. The element of surprise is a powerful weapon.


21 posted on 05/25/2023 10:00:24 AM PDT by bankwalker (Repeal the 19th ...)
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To: CFW

Old joke: Be sure you know who’s coming into your yard before you shoot them.”

May cause some criminals to think twice.

That used to be what the laws were for-—until criminals said as one foreigner here on a fictional show said “America does everything possible to favor the criminal. It all goes our way to keep us out of prison. I love America for that.”


22 posted on 05/25/2023 10:07:14 AM PDT by frank ballenger (You have summoned up a thundercloud. You're gonna hear from me. Anthem by Leonard Cohen)
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To: 03A3
“Oddly enough engine blocks always seemed the no. 1 quarry for .45-70’s.”

I had a chance to shoot a buddy’s Marlin 45-70 lever action at his home range using pumpkins as targets. It was impressive. It didn’t put holes in them it vaporized them. Very deadly. Expensive ammo tho.

23 posted on 05/25/2023 10:10:47 AM PDT by circlecity
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To: cdnerds
I never understood Open carry. You're just the first person to be taken out.

This seems to be a popular opinion. Care to cite an example or two?
24 posted on 05/25/2023 10:20:43 AM PDT by rickomatic
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To: Carriage Hill

Got any rabid elephants to take down with that cannon on your hip ??


25 posted on 05/25/2023 10:22:07 AM PDT by srmanuel
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To: rickomatic

Open carry IMO is a personal preference, I don’t do it simply because I don’t want anyone to know I’m packing, others will think differently, no problem go for it, it’s just not my thing.


26 posted on 05/25/2023 10:23:49 AM PDT by srmanuel
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To: rickomatic

Open carry IMO is a personal preference, I don’t do it simply because I don’t want anyone to know I’m packing, others will think differently, no problem go for it, it’s just not my thing.


27 posted on 05/25/2023 10:23:49 AM PDT by srmanuel
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To: MeganC

“Gee, the Second Amendment actually means something in Florida!”

Something is amiss. State charged him?


28 posted on 05/25/2023 10:24:14 AM PDT by TexasGator
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To: cdnerds

If you open-carry, you must always be vigilant. You must always watch for some punk, or maniac, or druggie, or etc. who might want to grab your gun. And no one can be 100% vigilant all the time. It’s just not possible. So no open-carry for me.

But to each his own.


29 posted on 05/25/2023 10:35:26 AM PDT by Leaning Right (The steal is real.)
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To: Reno89519

I agree i would have stayed on my porch with some cover if they made a move to get in blamo


30 posted on 05/25/2023 10:35:42 AM PDT by al baby (Sarcasm )
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To: srmanuel
Loading and Openly Carrying Gun in Own Yard Isn't Criminal Use of Deadly Force Under Florida Law

It's just your "Thang? Better make sure you have the right thang when you you reach for your thang and he reaches for his.

31 posted on 05/25/2023 10:36:34 AM PDT by Fightin Whitey
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To: srmanuel

Only using 230gr HPs in the .45cal; they’re for two-legged varmints.


32 posted on 05/25/2023 10:41:01 AM PDT by Carriage Hill (A society grows great when old men plant trees, in whose shade they know they will never sit.)
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To: CFW

Interesting here in PA we are an open carry state. I would have thot FLA was as well. How do farmers shoot varmints on their property there? Like gators and pythons.


33 posted on 05/25/2023 10:45:06 AM PDT by kvanbrunt2
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To: rickomatic; cdnerds

“I never understood Open carry. You’re just the first person to be taken out.

This seems to be a popular opinion. Care to cite an example or two?”

Having carried both ways (on and off duty) I never felt safe—especially at a urinal!


34 posted on 05/25/2023 10:46:35 AM PDT by Does so ( 🇺🇦...................."Who is Ray Epps?" should be overstamped on every piece of currency.)
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To: Fightin Whitey

You do your thing, I will do mine, if that costs me my life in a gun fight, so be it, I chose to do it my way.

Not specifically you, but I reject all the preaching by people who tell other people the right and wrong way to carry a gun and what gun to carry, when most of them have never pulled a gun on anyone in their life.

It’s a matter of personal preference and should be left at that.


35 posted on 05/25/2023 10:47:47 AM PDT by srmanuel
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To: Reno89519

Open carry is so common in NV, except in Clark County.

So where is that Costco surveillance tape from the Henderson store? What was the final outcome of that? Or is that still “under investigation?

Nevada (Clark County anyway) isn’t any better about open or concealed carry than New York City.

(Exaggeration I know...)


36 posted on 05/25/2023 10:48:14 AM PDT by Don W (When blacks riot, neighborhoods and cities burn. When whites riot, nations and continents burn)
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To: TexasGator

““Gee, the Second Amendment actually means something in Florida!”

Something is amiss. State charged him?”


I would assume it was some anti-2nd Amendment prosecutor that brought the charges on behalf of the state. All crimes are captioned as “State vs “*****”.


37 posted on 05/25/2023 10:48:24 AM PDT by CFW (old and retired)
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To: CFW

Who is going to pay all his legal fees?

Seems reasonable to make the arresting officers, the DA staff, and the original judge and all their relatives pay quadruple penalty...


38 posted on 05/25/2023 11:18:10 AM PDT by SuperLuminal (Where is the next Sam Adams when we so desperately need him)
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To: cdnerds
I never understood Open carry. You're just the first person to be taken out.

Tell that to Wyatt Earp.

39 posted on 05/25/2023 11:30:00 AM PDT by higgmeister (In the Shadow of The Big Chicken!)
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To: CFW
Agreed a very solid ruling and a good learning moment for many on Free Republic.

Every firearm owner should know their particular state and local laws with regards to self defense, used of deadly force, brandishing, etc. I applaud the firearm owner and their attorney for the way the information was presented and summarized by the court.

The tree service people should have all been charged with a variety of crimes.

Some of the lessons;

Brandishing a firearm is often a crime, which involves displaying a firearm for the purpose of intimidating another. He didn't point his weapon at anyone, didn't yell or threaten anyone. Note the later language which says a brief display of a firearm is OK "....so long as the firearm is not being "intentionally displayed in an angry or threatening manner" when the display of the firearm is "not in necessary self-defense."....."

Self-defense usually requires an immediate and urgent fear for one's life or the great bodily harm or the defender or someone else.

After asking the tree cutting service to leave, they became trespassers and he had a "non-deadly force right to urge them to leave." Self defense is often voided if the person claiming the right to self defense is the first person to escalate things and bring or threaten to use deadly force. Yes, the chainsaw might have been considered a deadly force weapon the way it was used, but the remained calm.

Then again, the "reasonable man" rule comes into play where the court said a reasonable man would have anticipated he might have to use deadly force to defend himself in getting the trespassers to leave.

[T]he 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. The trial 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. We disagree….

The display of a firearm constitutes non-deadly force as a matter of law. See, e.g., Cunningham v. State (Fla. Ct. App. 2015) (recognizing that "the mere display of a gun is not deadly force as a matter of law"); see also Howard v. State (Fla. Ct. App. 1997) ("[E]ven the display of a deadly weapon, without more, is not 'deadly force.'"). ..

it is not unlawful in Florida to "briefly and openly display" a lawfully carried firearm "to the ordinary sight of another person," so long as the firearm is not being "intentionally displayed in an angry or threatening manner" when the display of the firearm is "not in necessary self-defense."

....In addition, after Burns asked the tree-cutting crew to leave his property, and they refused to immediately do so, they became trespassers, justifying his legal right to use non-deadly force, including his constitutional and statutory right to openly carry or display his loaded firearm, to assist him in not only terminating the trespass, but also in preventing the reasonably perceived tortious and criminal interference with his dogs, which are his personal property. See § 776.031(1), Fla. Stat. (2020) (justifying the use or threatened use of non-deadly force, "when and to the extent" necessary, "to prevent or terminate" another's "trespass on, or other tortious or criminal interference with," the non-dwelling portions of one's "real" or "personal property"); see also § 810.09(1)(a)2., Fla. Stat. (2020) ("trespass on property other than a structure or conveyance" occurs when a person "willfully enters or remains in any property other than a structure or conveyance" if the property "is the unenclosed curtilage of a dwelling") (emphasis added); § 828.12(1), Fla. Stat. (2020) ("A person who … unnecessarily mutilates, or kills any animal, or causes the same to be done … in a cruel or inhumane manner, commits animal cruelty, a misdemeanor of the first degree[.]"); § 828.12(2), Fla. Stat. (2020) ("A person who intentionally commits any act to any animal … which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, commits aggravated animal cruelty, a felony of the third degree[.]"). Furthermore, after the confrontation had ensued, it was reasonable for Burns to have anticipated the possibility that he would need to act in self-defense while verbally directing trespassers off his property.

One additional side note about trespass. Often times many, many people do have a legal right to be on someone's property through either jurisdictional or easement rights. For example, Surveyor's, Electrical Inspectors, other inspectors do have rights to go on property to check for property corners, electrical or building code violations. Similarly, Water utilities, natural gas utilities, and electric utilities usually require as a condition of providing utility services an easement so that their employees (and sometimes contractors or agents) to access the property for the purposes of reading meters, performing maintenance, and repair.

40 posted on 05/25/2023 11:36:09 AM PDT by Robert357
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