The Right To Defend Yourself Under Florida Law
The Right to Defend Oneself does not come from Laws passed in a Capital Building. The Right to Defend Oneself comes from Nature. Natural Law provides every living thing, especially human beings, the most intelligent living organisms with the Natural Right to defend themselves with force; including deadly and non-deadly force, when in danger. When Judges in Florida subscribe themselves to the thinking that the right to defend oneself comes from Man, and not Natural Law, their thought process runs amuck with the societal norms that America has held, since its establishment. This was recently the case in Cunningham v. State, an appeal from Broward County, FL in which Judge Usan was again overturned by the 4th District Court of Appeals for not providing a fair trial to a criminal defendant, who was using a firearm in defense of himself.
Michael Cunningham challenged his conviction and sentence for aggravated assault with a firearm, arguing, among other things, that Judge Usan erred in failing to give a requested jury instruction of justifiable use of non-deadly force during Mr. Cunningham’s jury trial. The 4th DCA agreed and overturned the appellant’s case. The facts as applicable follow.
Mr. Cunningham was arrested and charged with aggravated assault with a firearm. Aggravated Assault with a firearm carries a minimum sentence in Florida of 3 years in prison, requiring day for day punishment with no time off of the sentence for gain or good time. Many Judges who have axes to grind, when it comes to the Second Amendment Right to Keep and Bear Arms, allow their political beliefs to creep into their judicial decision making process, and as for Mr. Cunningham standing trial in front of Judge Usan, the results were disastrous.
Mr. Cunningham was arrested for Aggravated Assault with a Firearm after a confrontation with a process server at or near his residence. A process server is a licensed individual in Florida, sworn in by the Chief Judge of their prospective County, and is in charge of serving papers like summons, evictions, lawsuits, divorces and other court documents to litigants.
The facts show in Cunningham that the process server was hanging around Mr. Cunningham’s home during the day light hours, and was actually seen circling the home during that time. The process server came back later after sunset, were he was witnessed driving aggressively, and while driving aggressively towards Mr. Cunningham and his brother was seen waiving something out the automobile window at the two men.
Mr. Cunningham, according to the trial testimony, was fearful of the process server’s actions and pointed a gun at him. Because of Mr. Cunningham’s fear cause by the actions of the process server, defense counsel requested a jury instruction of justifiable use of non-deadly force, but Judge Usan refused and allowed his Anti-Second Amendment feelings to be shown when he stated on public record that: “Non-deadly force would be something that the defendant might ask if we were talking about that he came out with a stick or lead pipe or something then there’s a question to whether that’s deadly force or non-deadly force. But since the charge involves a firearm, non-deadly force would not apply to a firearm.” Judge Usan fails to understand or realize that a firearm is a tool, no different than a hammer. Florida courts have always recognized this analogy, and have reasoned that like with any tool, it is in the manner of how the object is used by the accused, as to whether the courts should classify the act as deadly or non-deadly force.
Florida Law, as it applies to Non-Deadly Force cases, specifically states: It is a defense, defendant acted in self-defense, to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of non- deadly force. “Non-deadly” force means force not likely to cause death or great bodily harm. (Defendant) would be justified in using non-deadly force against (victim) if the following two facts are proved: 1. (Defendant) must have reasonably believed that such conduct was necessary to defend [himself] . . . [another] against (victim’s) imminent use of unlawful force against the [defendant] [another person]. 2. The use of unlawful force by (victim) must have appeared to (defendant) to be ready to take place. Fla. Std. Jury Instr. (Crim.) 3.6(g). Here, pointing a firearm at someone like a process server, who puts you in fear for your life, as Mr. Cunningham believed himself to be in, is an appropriate use of non-deadly force.
In Florida the law is clear, that merely displaying a firearm or gun without discharging it is “Non-Deadly Force,” as a matter of law! Carter v. State, 115 So. 3d. 1031, 1037 n.3 (Fla. 4th DCA 2013). Thus, a jury instruction as to the same is guaranteed. Likewise, discharging a firearm does constitute “Deadly Force,” as a matter of law, for which the jury instruction of Non-Deadly Force would be inapplicable. See Hosnedl v. State, 126 So. 3d. 400, (Fla. 4th DCA 2013).
The long and short of Florida Law is: If one displays a firearm in defense of themselves or others, without discharging it, then the jury instruction of Non-Deadly Force must be given if the facts show the defendant reasonably believes such force was necessary to defend himself or another from the use of unlawful force by the victim. If one discharges a firearm in defense of themselves or others, then the instruction of Deadly Force must be given to a jury when the facts show the defendant reasonably believes its use was necessary to prevent imminent death, great bodily harm, or the commission of a forcible felony.
In Cunningham, the 4th DCA overturned Judge’s Usan decision because he refused to properly charge the jury with the instruction of Non-Deadly Force. This common theme of trial judge’s being overturned at the appellate level, when they don’t follow Natural Law, but insist on following their political ideologies is costly to society in monetary numbers and freedoms lost.
If you or a loved one has been arrested on a criminal charge dealing with a firearm, then contact West Palm Beach Criminal Defense Attorney Andrew D. Stine at (561) 832-1170. Palm Beach Criminal Defense Lawyer Andrew D. Stine has knowledge of firearms and self-defense that surpasses most if not all in the entire practice of criminal law. Attorney Andrew D. Stine has extensive training in firearm use, firearm defense, and firearm knowledge from the top leaders in the firearm fields, including also that Andrew D. Stine served more than 12 years in the U.S. Army. During his military career in the U.S Army Attorney Andrew D. Stine carried a weapon that became no different that carrying his dog tags. Do like thousands of clients have done for over a decade in Palm Beach County, FL when arrested and charged with a crime: “Hire Stine or Do the Time!”