A Wise 'Florida Conceal Carry' Mindset

When to go to the gun? A question you must get right.

The main objective of this Florida Gun & Self-Defense article is to educate gun owners about Florida self-defense law and use of force law. Ignorance of the state and federal laws is not an excuse for unintentionally breaking those laws.  It is gun owners’ responsibility to learn and abide by the law and practice safe gun handling accordingly. I am not a lawyer; if you need legal counsel secure a lawyer in your relevant jurisdiction. The following content is my opinion and interpretation derived from twelve years of online and self-education in Florida Self-Defense and Use-of-Force Law.

Memorize the Four Rules for Safe Firearms Handling. Mistakes will not occur by doing so. One, treat all guns as if they are always loaded with a round in the chamber, even when the gun is empty. Two, never point the muzzle at anything you ‘don’t’ want to destroy. Three, keep your finger off the trigger until your gun sights are on the intended target. Four, always be sure of your target and what is beyond it.

In addition, when you pull the trigger, think of all bullets as having a prosecutor and a very expensive lawyer attached to them. If you are unsure of any situations regarding gun usage or handling or what is lawful or unlawful, please refrain from carrying your firearm concealed until you have proper training and education. One unlawful act by mistake could ruin your life and the lives of others. Contact me, and I’ll point you in the right direction to give you the confidence to safely and legally operate your firearm.

Today’s firearms focus will be on the question every conceal carrying gun owner must answer correctly, “When do I go to the gun?” Answering this question incorrectly will ruin your life.  Today’s article will address this question only in the public domain and with the assumption that you are the innocent party. Hopefully I’ll help to produce in you a wise Florida conceal carry mindset.

The short answer to this question is obvious, you go to the gun when you believe you are facing a ‘forceable felony threat.’ However, defining what that is in accordance with Florida law is not easily accomplished, and requires learning the law so that you know exactly how to legally determine, through accurate legal reasoning, in a moment of time, what actually is, or appears to be, a deadly force threat.   

The following legal definitions must be understood to accurately apply them in the correct context within the act of a lawful use of deadly force in self-defense. I’ve put into italics sections which fall under Andrew Branca’s Five Element of Self-Defense, which I believe is the best system of reasoning use-of-force self-defense law.

The following Florida statutes set the basis for logical reasonable thinking, when determining if a perceived threat is deadly in nature, and imminent in time.

Forcible Felony. S.S. 776.08 — “Forcible felony” means treason; murder; manslaughter; sexual battery; (carjacking; home-invasion robbery; robbery); burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

Credible Threat. S.S. 784.08 (1) (c )---“Credible threat”  means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. It is not necessary to prove that the person making the threat had the intent to actually carry out the threat.  

To be able to accurately assess a situation as having a deadly threat, there needs to be evidence present which suggest death or great bodily harm. Caused either by a weapon or in the disparity of numbers of individuals that could physically attack you. And it should be noted that if there is time and enough distance, yelling commands, to “stop, stay back, let me leave, I’m leaving stay back”, will provide some indication as to the intention of the potential threat, as to whether it’s deadly or not (Proportionality). And could additionally supply information as to how soon it will occur (Imminence). And would also serve to provide evidence that you attempted to avoid the threat of deadly force (Avoidance).

If you are able to determine you’re facing a legally defined forcible felony as a credible threat, you’re ready to implement the next statute. The following Florida statute and jury instruction will enable you to understand when and how to legally use deadly force.

Use of Deadly Force in Defense of Persons S.S. 776.012 (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.”

According to Deadly Force Case Law, Imminence basically is defined as “an immediate deadly threat that is unavoidable unless something intercedes to stop it.”

Florida Jury Instruction 3.6(f) Justifiable Use or Threatened Use of Deadly Force --- “In deciding whether defendant was justified in the use or threatened use of deadly force, you must consider the circumstances by which he or she was surrounded at the time the deadly force or threat of deadly force was used. The danger need not have been actual; however, to justify the use or threatened use of deadly force, the appearance of imminent danger must have been so real that the defendant actually believed the use or threatened use of deadly force was necessary. Moreover, to justify the use or threatened use of deadly force, a reasonably cautious and prudent person under the same circumstances would have believed the use or threatened use of deadly force was necessary.”

The jury will apply this instruction-reasoning, to the evidence produced in court. Note that the circumstances surrounding you when you used your gun, or threatened to use your gun, need not be actually accurate and perfectly interpreted. But “the appearance” of a deadly threat must have seemed very real and unavoidable to you at the time, and you believed deadly force was the only option available to you. And you also believed any reasonably cautious and prudent person would do the same in the circumstances you encountered. Again, the production of evidence in court must determine there was no reasonable doubt you had no choice but to act in deadly self-defense.

Also note that the element of “Avoidance” is brought into the evaluation process in the Jury Instruction “IF” the element of an Imminent Deadly Threat, was present and that you could not escape, as determined by the evidence, which is weighed or reasoned by the jury’s ability, per the evidence, to put themselves in your shoes so they could answer the question, “could they have avoided it or would they have been forced to go to the gun to save their lives, the same way you did.” This is the Reasonableness element applied to the element of Imminence per instruction by the jury.

Now let’s review and apply Andrew Branca’s system of five elements of self-defense, in this real-time scenario. You’ve identified a threat and have determined if it is deadly in nature, (element of Proportionality). And have determined it is imminent (Branca’s second element). And you came to conclude these two factors and that it’s a deadly force threat beginning to occur. If you’ve applied the law accurately, you now have every legal right to use deadly force to end the deadly threat.

But I personally do not have this in my decision-making process as my first response. My response when I have the legal right to use deadly force is to decide which one of the following four responses, I believe is safest for me and for the threat for me to implement. I conclude which of the following four uses of the gun I will use as I analyzed the situation from the start, based on the conduct of the threat and my many years of training and experiences.     

One, reveal my holstered gun and quickly back up several steps, only if there is sufficient time and distance to safely achieve this without increasing my level of jeopardy. Two, draw the gun from concealment and bring it to the high ready position, which means it’s not pointed at the individual yet and shout a warning. Three, draw the gun, bring it to line of sight on the subject without firing the gun, opting to give one last warning of, stop or I’ll shoot. These three options provide the attacker a chance to stop their advancement toward me and perhaps they’ll back up and end their threat and I won’t have to fire a shot. Four, draw the gun, bring it to line of sight or not if time does not allow, and shoot several rounds as I create distance from the attacker, and if required continue putting rounds on the individual until the threat ends.

My strategy will not work for the overwhelming majority of conceal carry gun owners. Because unless you have practiced putting tens of thousands of rounds into tactical training scenarios on a regular basis over an extended period of time, you’ll probably not survive attempting the first three options, so I recommend just using option four. I haven’t shot at a stationary target, standing still, for many years. I always move as I shoot and primarily use multiple moving targets, as if there’s someone shooting back at me. And I’m always increasing my failure rate, always pushing myself to fail. Then I fix that failure. I know my weaknesses and understand my jeopardy tolerances. And I know what it’s like to be under rapid fire but not outgunned.

It's this type of rigorous training that all conceal carrying gun owners need should they face a real deadly threat. But the real benefit is being able to learn enough avoidance strategies that reduce the odds of being surprised by a deadly threat. Instead developing the ability to identify potential threats from enough distance to act to reduce your jeopardy level to zero if possible. And also develop a posture that conveys to everyone observing you that, “I’m well prepared” causing the criminal element of society to select someone else.

If people who don’t know you, aren’t asking you if you’re law enforcement when you interact with them, then you’re doing it all wrong. Appear as the ‘man with no sense of humor’ until you’re in a place where it’s safe to laugh unguarded. Once you’ve been targeted as a victim, there’s no way to bring yourself to ‘casually carry the gun, as if you’re not carrying the gun’.    

But let’s back up and address an all-too-common mistake gun carriers make. Which is, they misread the level of threat. It’s essential to proper development of a self-defense mindset to understand the consequences of getting the entire situation wrong. So, let’s change your evaluation in this scenario to an incorrect evaluation at the moment you determined that it was a deadly threat. Instead let’s say it was a non-deadly threat and it wasn’t about to occur. You either pulled out your gun in a defensive aggressive manner needlessly, or in error you threatened to use your gun and then found out the threat was not deadly. In this case you will have failed four of the five elements of self-defense, having only innocence to claim, which isn’t enough for a legal claim of self-defense. All it takes is one failure to prove any one of the five elements and you lose the legal claim of self-defense and most likely will be charged with Aggravated Assault. So, let’s consider this Florida statue.  

Aggravated Assault. S.S. 784.021 --- (paraphrased) An “Assault” is an intentional, unlawful threat by word or act to do violence to the person, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear that such violence is imminent and becomes “Aggravated Assault” when it occurs with a deadly weapon without intent to kill; or with an intent to commit a felony.

So, if you commit this serious error, you have transformed yourself from a law abiding conceal carry gun owner who mistakenly used your gun into a felony criminal within a few seconds. But actually, your error didn’t occur in just a few seconds, it developed during the time you perceived the potential threat to the moment you brought your gun to bear on the situation you misread. Because you lacked the adequate ‘wise conceal carry mindset’ to enable you to not make this very serious life-changing mistake.

To help reduce the chances of an Aggravated Assault, I recommend what I call Preventative Options, such as Personal Avoidance, which in most cases negates the need to draw the gun, thereby avoiding going to the gun when the possibility of a deadly threat is not yet apparent because there was no evidence of a weapon. Or simply that you were unsure of the level of the threat for whatever reason.

These options are, backing up, communicating you want to leave, signally you’re breaking contact, and conveying you don’t want to engage. You could also announce that you quit, you’re sorry, etc. Defusing the situation is your best option. Even running away, if you can, but only if it is safe to do so. Generally, it is not a good idea to turn your back on someone you believe could be a threat.  

Note this one absolute fact, you cannot verbally threaten to use a gun, nor reveal a concealed gun, nor even mention you own, possess, or carry a gun, when the threat level is non-deadly. To do so is a sure charge of Aggravated Assault with a weapon. A serious felony with serious jail time will be your fate.

Having said that let me provide a HOWEVER for further consideration. Florida law offers seemingly contradictory provisions, which are ambiguously written (poorly written and mentally frustrating to reasonably process in order to come to a legal conclusion) and could be used to deter someone from starting to threaten you with deadly force, although I can’t come up with a scenario which would illustrate this in a commonsensical way. But that said, if you can accurately define the underlined sections of the following two statutes, I’d love to hear your definition, explanation and interpretation. It troubles me that legislators approved this and made it law. I wonder how much money jurisdictions have made because of how these two statutes are worded.

Briefly Open Display of Firearm. S.S. 790.053 ----"………It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.”

The level of ambiguity is off the charts. Everyone who wrote and supported this statute should be imprisoned for life, especially when you factor in that they are lawyers who did not make a mistake here. They knew exactly what they created for the law abiding conceal carrying gun owners of Florida. I have serious doubts that any of the creators were pro second amendment. The next statute is just about as bad.  

Improper Exhibition of Dangerous Weapons or Firearms. S.S. 790.10 ---- “If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.”

It should be noted in this last statute that you cannot be legally arrested unless the officer is present and witnessed all the elements involved in the alleged violation. And he can’t arrest you on what someone else said unless he has a warrant. This is because it’s a misdemeanor and not a criminal act, and in this case it’s your word against someone else’s word.

My advice is to err on the side of extreme caution and ignore these statutes when you form your self-defense strategies. In the past and even in articles I’ve published recently, I have encouraged using these statutes as methods of not using deadly force immediately, but today, I’m walking that position back. Depending on the jurisdiction you’re in, both statutes could be used as traps, designed to bring you kicking and screaming into the legal meat grinder machine. And for the reason that you didn’t want to go to the gun, because you didn’t want to kill anyone, even a felon which meant you certain harm.  

Therefore, the only way to conceal-carry a gun on a daily basis is to know your weaknesses in various situations imposed on you by a trainer or training partner. You must be tested, and retested, consistently, so that your gun becomes part of your legal mind and body; operating responsibly within the law and knowing when the ambiguity of the law requires you to operate with the least degree of risk both legally and physically. Being able to think like a self-defense lawyer and run a gun fast and accurately, under extreme duress should be every conceal carrier’s aspiration.

If you would like assistance with this endeavor, give me a call and I’ll customize exactly what you’ll need to achieve your goal.

Article Information Sources: Andrew Branca, Jon H. Gutmacher, and Rory Miller. And by the way, all three of these excellent professionals I’m sure would find my article lacking in some form. I am not a lawyer and have learned from their publications over the past fifteen years—started with Rory Miller before I found Branca and Gutmacher. Have I reproduced their publications 100% accurately? No, I’m certain that I haven’t. Hopefully my errors and mistakes will inspire you to scrutinize, with a critical eye, my content and therefore surpass me in competency.

This article’s purpose is to incentivize the reader to learn the laws required for lawful gun usage. My hope is that all conceal carry gun owners will become legally proficient and physically capable to “Aim to Win the Physical and Legal Battles” should a self-defense situation occur.” Know the Law, Learn to Shoot.”

Today’s article is also published at FloridaGunSelfDefense.com which is my business website.

Florida Gun & Self-Defense offers firearms and self-defense training and education. Single or group classes or customized training is available. Visit FloridaGunSelfDefense.com for more information. Or call Dave Douglass at 863-381-8474 

Dave has been a firearms instructor and trainer since 2012. He is skilled in advanced tactical-gun and self-defense gun operation, in accordance with Florida gun law and use-of-force self-defense law. He is not a lawyer but has studied Florida Use-of-Force Law and Gun Law for the last twelve years. Dave’s articles are his interpretation and opinion and do not constitute legal advice for you. If you need legal advice, secure legal counsel in your relevant jurisdiction. Dave is an adamant supporter of an original historical literal interpretation of the Second Amendment. You can contact him at davidpdouglass@hotmail.com