Defenses to Discharge of a Firearm in Public Or On Residential Property

July 18, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

If someone is accused of discharging a firearm in public or on residential property in an unlawful manner, this can be a very serious charge. Depending on the facts of the case, unlawful discharge of a firearm in public or on residential property is punishable as a first-degree misdemeanor (1 year in jail and a $1,000 fine) or even a third-degree felony (punishable by up to 5 years in prison and a $5,000 fine). This is true even if nobody is injured or killed.

Facing a charge of unlawfully discharging a firearm in public or on residential property under Fla. Stat. Section 790.15 can be very stressful. However, there are many lawful defenses to an allegation of unlawful discharge of a firearm in Florida.

For someone to be proven guilty of discharge of a firearm in public or on residential property, the following elements must be established by the State beyond a reasonable doubt:

• The defendant knowingly discharged a firearm (accidental discharges typically do not qualify)
• The firearm was discharged in a location prohibited by the statue (public places such as parks and streets, a paved public road or highway, residential property that is not one’s own, or one’s own property if the discharge is reckless or negligent)
• No lawful justification existed for the discharge

A firearm under Florida Statutes Section 790.001 is defined as any weapon which will, is designed to, or may readily be converted to:

• Expel a projectile by the action of an explosive
• Any firearm muffler or silencer
• The frame or receiver of a firearm
• Any destructive device
• Any machine gun

Discharge of a firearm in public or on residential property is typically charged as a first-degree misdemeanor, punishable by up to 1 year in jail, 1 year of probation and a $1,000 fine. This is the case when:

• The unlawful discharge of the firearm occurs at any of the above-described locations (roads, residential properties, etc.)
• The discharge occurs outdoors while target shooting in an area that has one or more “dwelling units” per acre of land

Important: A dwelling unit is a single unit providing complete, independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking, and sanitation.

If someone discharges a firearm from a vehicle within 1,000 feet of another person, or someone knowingly directs any other person to discharge any firearm from the vehicle, a violation of Fla. Stat. Section 790.15 is a third-degree felony. This is punishable by up to 5 years in prison, 5 years of probation and a $5,000 fine.

If someone is formally charged with discharge of a firearm in public or on residential property, many defenses exist. One of these is self-defense or defense of others. If someone fired the weapon to prevent death or imminent harm (such as a warning shot), this is considered a valid justification if the discharge was a proportionate and reasonable response to an imminent threat of unlawful force (Fla. Stat. Section 776.012).

Note: If the defendant offers any evidence at trial to corroborate the claim that they discharged a firearm in public or on residential property in defense of themselves or others, they are entitled to a self-defense jury instruction under Florida law. Smith v. State, 6D2023-2239 (Fla. 6th DCA 2025)

In certain discharge of a firearm in public or on residential property cases, a Stand Your Ground defense may be relied upon. A Stand Your Ground defense entitles a defendant in a discharge of a firearm case to a pretrial immunity hearing, during which they can dispute the charge (Fla. Stat. Section 776.032).

If the following occurs at the pretrial immunity hearing, the charge must be dismissed as a matter of law before trial:

• The defendant must bring a prima facie (on its face) case of self-defense or defense of others that supported the discharge of the firearm
• The defendant must establish the alleged victim was not a law enforcement officer engaged in the official performance of their duties 
• The defendant must establish they were not engaged in criminal activity and had a right to be where the use or threatened use of force occurred

If a defendant establishes all of the above facts in their case, the burden of proof then shifts to the State to provide clear and convincing evidence that discharge of the firearm was legally unjustified. If the prosecution fails to establish this, the case is dismissed before trial. Little v. State, 111 So.3d 214 (Fla. 2d. DCA 2013).

Critically, even if a Stand Your Ground defense fails at the pretrial immunity hearing, this does not prevent the defendant from raising this claim at trial. If this is argued at trial, the State must prove beyond a reasonable doubt to the jury that the firearm discharge was not a proportionate and reasonable response to an imminent threat of death or great bodily harm. Derossett v. State, 311 So.3d 880 (Fla. 5th DCA 2019). 

Another defense to discharge of a firearm in public or on residential property may be accidental discharge.

Under Fla. Stat. Section 790.015(4)(c), the statute does not apply to someone who accidentally fired their weapon if there was no reckless or negligent handling. Example cases of this may include:

• Alex is cleaning his pistol in his home, believing it to be unloaded. He accidentally discharges this and the round goes through his wall, without injuring or killing anyone.
• John is at a shooting range and believes the gun is jammed. As he is handling it, the jam unexpectedly clears and the gun accidentally fires.

However, a defense of accident does not cover all unintentional discharges of a firearm. For example, if someone is waving around a loaded gun at a crowded party and it accidentally fires, the law still permits a charge to be brought. Even an accidental discharge is considered use of deadly force if done in sufficient proximity to others. Hosnedl v. State, 126 So.3d 400 (Fla. 4th DCA 2013)

Another defense to a charge of discharging a firearm in public is that the person was engaged in lawful duties that require the discharge of a firearm.

This defense is likely to be particularly effective in cases where someone was operating in any of the following capacities at the time of the discharge:

• Law enforcement (police, sheriffs, corrections officers, federal agents)
• Licensed private security officers
• Certified firearms instructors
• Active duty military (such as the 21-gun salute at a funeral)

Critically, this does not mean that individuals who have any of the above titles are exempt from the statute if they are not engaged in their lawful duty when the discharge takes place (and the remaining elements of the offense are satisfied).

Another defense is that the discharge of the firearm did not pose a foreseeable risk to life or property under the circumstances. This defense is codified in Fla. Stat. Section 790.15(4)(b), and examples may include:

• Someone discharges a firearm on a large, multi-acre property with a safe backstop and no nearby homes, roads or occupied vehicles
• Someone discharges a firearm on a friend’s rural property in a remote area with permission and all safety measures in place
• A homeowner discharges a firearm after building a dirt berm on their rural land to safely shoot into a backstop away from the direction of any neighboring properties

In certain cases, another defense may be alibi or mistaken identity. If there is no strong evidence linking the defendant to the alleged discharge of the firearm – and the only corroboration offered for this is grainy surveillance footage or unreliable eyewitness accounts – a mistaken identity defense may be useful. 

For an alibi defense, evidence that the defendant was present in another location at the time can be very helpful. This may include:

• GPS data
• Surveillance footage
• Text or phone records

In addition to the various lawful defenses that exist to discharge of a firearm in public or on residential property, there are some “defenses” that are considered invalid under Florida law and thus cannot be used (non-defenses). These include:

• “Nobody got hurt”: The law criminalizes the discharge of the firearm in a manner that violates the statute regardless of if an injury occurred.
• “I didn’t know it was illegal”: Ignorance of the law is not a defense, including if accused of discharging a firearm unlawfully.
• “I was drunk/high”: Florida does not recognize voluntary intoxication as a defense. However, involuntary intoxication is a valid defense if the intoxication took place due to coerced or accidental ingestion, unexpected reaction, or medical misprescription – and this caused the defendant to be unable to form specific intent to commit the offense. Brancaccio v. State, 698 So. 2d 597 (Fla. 4th DCA 1997)
• “I had a concealed carry permit”: If the firearm is discharged in a manner that violates Fla. Stat. Section 790.15, the fact that someone was licensed to carry is not a defense.
• “Everyone else was doing it/we were celebrating”: Though celebratory gunfire may occur during events such as New Year’s, this is illegal regardless of the occasion.
• No property damage: Property damage is not required to violate the statute.

In sum, discharging a firearm in public or on residential property is a serious crime in Florida. It is typically classified as a first-degree misdemeanor (punishable by up to 1 year in jail and a $1,000 fine). It is a third-degree felony (punishable by up to 5 years in prison and a $5,000 fine) if someone discharges a firearm from a vehicle within 1,000 feet of another person, or someone instructs another to do so. 

However, various defenses to this charge exist. These include lawful discharge (self-defense or in a setting such as a shooting range), accidental discharge (under many circumstances), working in a capacity at the time where discharge was part of lawful duty (such as police officers or firearms instructors), alibi or mistaken identity, lack of foreseeable threat to others, and more.

If someone is arrested and formally charged with discharging a firearm in public or on residential property, it is critical to find experienced and trusted legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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