When Does Pointing A Gun In Florida Constitute Deadly Force?

February 9, 2026 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Two cases from Florida’s 4th District Court of Appeal provide a comprehensive explanation of when pointing a gun – without firing it – constitutes the use or threatened use of deadly force (as opposed to non-deadly force) in Florida.

In Florida, aggravated assault with a deadly weapon is a very serious offense. Aggravated assault is typically punishable by up to 5 years in prison and a $5,000 fine. 

However, aggravated assault is enhanceable to a second-degree felony (punishable by up to 15 years in prison and a $10,000 fine) if the victim was a police officer, EMT, firefighter, elderly, or member of another protected group. For more on this, click here.

For someone to be guilty of aggravated assault with a deadly weapon (including a firearm), the State must establish all of the following beyond a reasonable doubt:

• The defendant made an intentional and unlawful threat of imminent violence
• The defendant had the apparent apparent ability to carry out the threat 
• The threat was of such a nature as to create well-founded fear in the victim that violence was about to occur (these first three elements constitute simple assault)
• A deadly weapon was used in the course of making the threat (e.g. brandished, pointed, swung)

Note: Aggravated assault with a deadly weapon (such as a firearm) must be done without the intent to kill the victim. If intent to kill the victim existed (and can be proven), this is likely to result in an attempted second-degree murder or attempted manslaughter charge. For more on this, click here.

Examples of aggravated assault with a deadly weapon without intent to kill in Florida include any of the following:

• During a “road rage” incident, A gets out of his vehicle and waves his gun outside B’s window in an effort to scare him – but does not shoot him or attempt to do so
• C rushes at D with a knife as D is walking on the sidewalk in an effort to “freak him out,” but C does not stab D or otherwise touch him
• E raises a chair above his head during a heated argument with F and swings it as if he is going to hit F over the head with it, but does not do so (L.R.W. v. State, 848 So.2d 1263 (Fla. 5th DCA 2003))
• G points a loaded crossbow at H during a dispute in a parking lot and threatens to “teach him a lesson,” but never fires the crossbow or attempts to do so
• I swings a baseball bat inches from J’s head during an argument on a front porch, causing J to fear imminent harm, but I stops short of making contact
• K revs a motorcycle and deliberately accelerates toward L, swerving at the last second to avoid impact, intending only to scare L rather than strike him

It is commonly believed that someone must use a conventionally “deadly weapon,” such as a firearm or knife, to violate Florida’s aggravated assault law. But as you can see, this is not the case.

Per Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020), a deadly weapon is defined as either of the following:

• Any instrument for which causing serious bodily harm or death is “within the ordinary contemplation of its design” (e.g. guns, knives)
• Any instrument that is used or threatened to be used in a manner likely to cause death or serious bodily injury (can include BB guns, spearguns, sticks, beer bottles, rocks, chairs, bats, cars and trucks, etc.)

One of the most common forms of aggravated assault with a deadly weapon without intent to kill is someone pointing a firearm at another person, without the intent to shoot them. If someone is charged with aggravated assault for doing this, they are likely to defend against the allegation by claiming they were acting in self-defense (e.g. pursuant to Florida’s Stand Your Ground law).

Florida’s courts have been clear that if any evidence is introduced at trial to support a defendant’s self-defense (or defense of others, etc.) claim on the record, no matter how “weak or improbable” the argument is, that defendant is entitled to a self-defense jury instruction. Smith v. State, 415 So.3d 278 (Fla. 6th DCA 2025)

However, there are two types of self-defense jury instructions that may be given at a Florida criminal trial:

• Justifiable use of deadly force: Occurs when someone uses or threatens to use deadly force, which is justified if they are defending themselves or others from a reasonably perceived threat of death or great bodily injury, or fending off the imminent commission of a forcible felony (Fla. Stat. 776.012)
• Justifiable use of non-deadly force: Nondeadly force can be used or threatened when the defendant reasonably believed that the alleged victim was threatening them not just with death or great bodily injury, but the use unlawful force generally (Cunningham v. State, 159 So.3d 275 (Fla. 4th DCA 2015))

A simple example of this would be someone fearing they are about to be slapped against their will. Unless the circumstances are exceptional, this slap (if done without lawful justification) would be an act of non-deadly force. 

This means someone can lawfully use or threaten to use non-deadly force to protect themselves against the slap (e.g. ensuring they do not get slapped), such as pushing a person away. Williams v. State, 238 So.3d 915 (Fla. 1st DCA 2018)

However, that person would likely be guilty of a crime if they used or threatened deadly force – because:

• There is not an objectively reasonable belief that they are at an imminent risk of serious bodily injury or death
• They are not defending others from such a risk, and 
• There is no forcible felony about to be committed (unless they are seated in their vehicle, which would be a burglary-battery)

Now, let’s return to the original question – is pulling a firearm out (or even pointing it) – but not discharging it – considered a use or threatened use of deadly force or nondeadly force in Florida? The answer is… it depends on the circumstances.

Two cases from Florida’s 4th District Court of Appeal (Southeast Florida) make this clear. The first case, Cunningham v. State, 159 So.3d 275 (Fla. 4th DCA 2015), involved a man who was handed legal documents by a process server at his home. An argument ensued, and the process server stormed off.

Later, the process server returned to the property and began to reengage with Cunningham. After he allegedly threatened Cunningham, Cunningham produced a gun and allegedly pointed it at or in the direction of the process server. Cunningham was charged with aggravated assault with a deadly weapon (Fla. Stat. 784.021(1)(a)).

At trial, Cunningham moved to instruct the jury on justifiable use of non-deadly force (pursuant to Florida’s Stand Your Ground law). The proposed instruction read:

“An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of nondeadly 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.”

However, the judge denied this – finding that Cunningham used deadly force when he pointed his gun at (or in the direction of) the process server, even though he did not fire. As a result, the judge instructed the jury on justifiable use of deadly force – requiring that Cunningham have imminently feared death or great bodily injury to be found not guilty.

The jury convicted Cunningham. But he appealed his aggravated assault conviction to the 4th DCA and his conviction was reversed. The 4th DCA found that Cunningham used non-deadly force as a matter of law. According to the 4th DCA, the trial judge misapplied the rule that firing a gun is automatically considered deadly force – this is not the case for simply pulling one out:

“It is now well established by this court that the discharge of a firearm constitutes deadly force as a matter of law. Hosnedl v. State, 126 So.3d 400, 404 (Fla. 4th DCA 2013) (citations omitted). Likewise, we also have established that the mere display of a gun is not deadly force as a matter of law. See Carter v. State, 115 So.3d 1031, 1037 n. 3 (Fla. 4th DCA 2013) (“Apparently the firearm was not discharged and deadly force did not apply as a matter of law.”); Howard v. State, 698 So.2d 923, 925 (Fla. 4th DCA 1997) (“[E]ven the display of a deadly weapon, without more, is not ‘deadly force.’ ”).”

However, Cunningham v. State, 159 So.3d 275 (Fla. 4th DCA 2015) stands in (partial) contrast to a 2020 decision by the 4th DCA – Little v. State, 302 So.3d 396 (Fla. 4th DCA 2020). In Little, the defendant pointed a loaded firearm at a boy he suspected was attempting to burglarize his car, ordering him to get on the ground and threatening to shoot him.

According to the 4th DCA, it appeared Little racially profiled the alleged “burglar,” and there was scant evidence to support Little’s claim that the teenager he held at gunpoint was actually attempting to break into his vehicle. Thus, even if Little used non-deadly force, this may have still been unlawful.

Little nevertheless argued he had pretrial immunity pursuant to Florida’s Stand Your Ground law. As Little’s vehicle was not occupied at the time, any attempted burglary would not have justified the use of deadly force. 

However, the use of non-deadly force to deter the alleged “burglar” would have been permissible if the trial judge concluded that Little was in reasonable fear of a burglary of his car taking place.

At the Stand Your Ground pretrial immunity hearing, the trial judge concluded Little had used or threatened to use deadly force by pulling his loaded firearm and ordering the teenager to get on the ground (while allegedly yelling racial slurs). 

Thus, Little’s actions were unjustified unless he was reasonably protecting himself or others from death or great bodily harm or preventing the commission of a forcible felony. Since none of this applied to Little’s case, the judge ruled he did not have Stand Your Ground immunity for his use of deadly force. 

The case proceeded to trial, where Little was convicted of aggravated assault with a firearm. On appeal to the 4th DCA, Little argued the trial judge misapplied the law. Citing Cunningham v. State, 159 So.3d 275 (Fla. 4th DCA 2015) and its ancestors, Little claimed his act of simply pulling the gun (without discharging it) was non-deadly force as a matter of law. 

Thus, according to Little, the jury should have been instructed on justifiable use of non-deadly force. Little argued the judge’s failure to give that instruction (e.g. deciding to give the deadly force instruction) was reversible error.

But the 4th DCA disagreed and affirmed Little’s conviction. The 4th DCA found that in 2014 (after Cunningham went to trial), Florida’s Stand Your Ground law was amended to eliminate the distinction between when the actual use and threatened use of deadly force are justified:

“Pointing a firearm at another individual without discharging it is not “use of” deadly force, and that was the pertinent issue in an asserted defense of property case prior to the effective date of the 2014 amendments to Florida’s self-defense/SYG statutes. Defendant’s actions at issue in this case occurred after the effective date, and therefore our inquiry turns to the added language, focusing on whether Defendant’s actions constitute justifiable “threatened use of” deadly force. As explained above, we answer that question in the affirmative and find neither ineffective assistance of counsel nor fundamental error in, respectively, the trial court’s and jury’s consideration of Defendant’s conduct as a “threatened use” of deadly force. As Defendant received a fair trial, with the State responsible for proving guilt beyond a reasonable doubt, we agree with the First District that there is no need to remand this case for another SYG hearing, though we certify conflict with the Second District’s Nelson opinion.”

The 4th DCA found Little’s conduct could not be reasonably viewed in any way other than the threatened use of deadly force. Because the threatened use of deadly force (post-2014 Stand Your Ground amendment) required Little to have been:

• In objectively reasonable fear or death or great bodily harm, or
• Protecting others from what he objectively feared to be imminent death or great bodily harm, or
• Preventing the imminent commission of a forcible felony

Little’s threatened use of deadly force against the alleged victim was not legally justified. As a result, his aggravated assault with a firearm conviction was affirmed.

So, what does this all mean in practical terms? As of 2026, someone pointing a firearm is likely to be considered a threatened use of deadly force. 

If the State proves by clear and convincing evidence at a SYG pretrial immunity hearing (and at trial beyond a reasonable doubt) that none of the above justifications for use or threatened use of deadly force apply in an aggravated assault case, a defendant is guilty of aggravated assault with a firearm.

However, there appears to be a difference between Little’s case and Cunningham’s. Little’s gun was loaded, and he was making threats to the alleged victim that he would kill him if he did not comply with his demands immediately. 

By contrast, in Cunningham, the defendant appeared to use his firearm as a “deterrent” against what he believed to be a threat to his personal safety. 

Going forward, will Florida courts evaluate the context in which a firearm is pulled using the totality of the circumstances? 

In other words, will courts always consider the display of a firearm a “threatened use of deadly force” – or will brandishing a firearm as a “deterrent” to potential violence (Cunningham) be seen differently than pointing a loaded gun directly at a person and threatening them (Little)? 

The answer is not entirely clear – and the issue will likely be debated by Florida’s courts in the years to come. What is clear – however, is that aggravated assault with a deadly weapon can carry lengthy prison sentences and heavy financial penalties. 

If someone is charged, it is vital to find experienced and aggressive legal representation as soon as possible. 

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 criminal 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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