Business Law 101 / USE OF FIREARMS

By Albert Kelley

The use of a firearm in the commission of a crime will result in heightened punishment for the criminal.  In general, anytime a criminal uses or even just displays a firearm during the commission of a crime, the use of the weapon is a second degree felony.  This charge is in addition to the charge for the underlying crime. If rather than using a firearm, the criminal uses a weapon such as a knife or taser, it is a third-degree felony. If the criminal has previously been convicted of using a weapon or forearm in the commission of a crime, the punishment increases to a first-degree felony.  There are some exceptions. This rule does not apply to antitrust violations, unfair trade practices, restraints of trade, nonsupport of dependents, bigamy, or other similar offenses as these are not deemed crimes of violence. 

But there doesn’t have to be an underlying crime for the use of a weapon to be a crime. Except when doing so for self-defense, firing a weapon in a public place, over a road, or on residential private property (either indoors or out) is a first-degree misdemeanor. If a firearm is discharged from a vehicle within 1000 feet of any person, it is a second-degree felony. And the driver who allowed the forearm to be fired is guilty of a third-degree felony. Recreational shooting, including target shooting is also criminal (first-degree misdemeanor) if it occurs in a residential area that has more than one house in an acre of land.  Even just showing a weapon, in a rude, careless, angry or threatening manner, when not doing so for self-defense is a first-degree misdemeanor.

Regardless of where the person is (residential, commercial, farm-land, forest, etc.), if a person fires a weapon, or even has one in their possession that is ready to be fired and that person is under the influence of alcohol or other substance, they are guilty of a second-degree misdemeanor. 

Aside from state-militia or law enforcement, machine guns are not allowed to be fired in any public park, across any roadway or in public place where people are accustomed to gather.  If done with the intent to cause bodily harm, or even just to cause property damage, it results in a first-degree felony and can result in life imprisonment if there is bodily harm or disruption of any government function. 

The weapon does not necessarily have to be a gun for a violation to occur.  If any item, such as a rock, BB, or bottle, is shot or thrown, into a building, car, boat, train airplane or any vehicle, it is a second-degree felony. 

In some cases, the mere possession of a weapon is criminal.  Anyone in possession of a sawed-off shotgun or rifle, or machine gun (except antique firearms) is guilty of a second-degree felony. Of course, possession of any weapon by a convicted felon is unlawful, as is possession of a weapon by anyone under the age of 24, if that person as a juvenile committed a crime that would have been deemed a felony if they had been an adult. This is a second-degree felony, unless the person has previously been convicted where the charge is increased to a first-degree felony.  It is also unlawful for a person who is under an injunction for domestic violence or stalking to be in possession of a firearm (first-degree misdemeanor).

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University.  He is also the author of four law books: (“Basics of Business Law” “Basics of Florida’s Small Claims Court”, “Basics of Florida’s Landlord/Tenant Law” and “Basics of Starting a Florida Business” (Absolutely Amazing e-Books)). This article is being offered as a public service and is not intended to provide specific legal advice.  If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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