When Is Pulling a Gun Aggravated Assault in Florida?

August 28, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Aggravated assault is frequently charged in Florida when someone pulls out a firearm and threatens another person. However, just because someone subjectively believes they are being placed in danger does not necessarily mean an aggravated assault with a firearm has occurred.

This raises the question – when is pulling a gun on someone aggravated assault in Florida? This blog will explore the answer to this important and frequently asked question.

In Florida, aggravated assault (Fla. Stat. 784.021) is a very serious felony offense. There are two types of aggravated assault under Florida law: aggravated assault with a deadly weapon without intent to kill and aggravated assault with the intent to commit a separate felony.

For someone to be proven guilty of aggravated assault, the following must be established beyond a reasonable doubt:

• The defendant threatened, by word or act, to do imminent and unlawful violence to the victim
• The defendant had the apparent ability to carry out the threat
• The defendant’s actions were of a nature that the victim was or reasonably should have been in well-founded fear of violence
• The assault involved a deadly weapon without intent to kill, or was done with the intent to commit a separate felony

Aggravated assault is a third-degree felony punishable by up to 5 years in prison and a $5,000 fine. If the offense was committed in furtherance of a riot or aggravated riot, or the victim was a protected group under Fla. Stat. 784.07 (e.g. law enforcement, firefighters), it is a second-degree felony punishable by up to 15 years in prison and a $10,000 fine.

Note: A deadly weapon is any instrument designed to cause death or great bodily harm, or any instrument that was used in a manner likely to cause death or great bodily harm during the crime. This can include guns, knives, BB guns, pellet guns, shoes, rocks, canes, a broken beer bottle, and more. Cloninger v. State, 846 So.2d 1192 (Fla 4th DCA 2003);

However, if an object is not by design intended to cause death or bodily harm – and was not likely to do so when its use was threatened – it cannot be classified as a deadly weapon for the purpose of charging aggravated assault. D.B.B. v. State, 997 So.2d 484 (Fla 2nd DCA 2008)

Under Cloninger, a firearm is considered a deadly weapon for purposes of charging aggravated assault. This means that if a firearm is proven to have been part of the alleged aggravated assault, the “deadly weapon” element of the charge has been satisfied.

Because of this, some people mistakenly believe that if they brandish or point a firearm at another person, aggravated assault has been committed. However, this is not necessarily true.

Even if the use of a firearm has been established, the remaining elements of aggravated assault must be proven:

• The defendant must have had the apparent ability to carry out the threat associated with the use of the firearm 
• The firearm must be used or threatened to be used in a way that creates a well-founded fear that violence is about to occur
• The threat must be intentional and not lawfully justified

The first of these (apparent ability) is a subjective test. This means that from the perspective of the alleged victim, they must personally believe the defendant had the ability to use the firearm in accordance with the threat (e.g. threatening to shoot or pistol whip a victim). L.C. v. State, 799 So.2d 330 (Fla. 5th DCA 2001)

Examples of when “apparent ability” is likely to be satisfied in a case involving an allegation aggravated assault with a firearm include:

• During a bar fight, A pulls a pistol out of his pocket and points it at B, threatening to shoot him (though not actually intending to do so).
• During a road rage incident, C gets out of his car and begins swinging his firearm wildly in D’s direction while yelling threats.
• During a neighborhood dispute, E pulls a handgun on his neighbor, F, without lawful justification and points it at him.

In all of these circumstances, the alleged victim reasonably believes that the defendant is able to carry out the firearm-related threat. Thus, the “apparent ability” prong is satisfied. 

However, cases in which the apparent ability prong is likely to not be satisfied include:

• J unloads his gun while in a room with K. K sees there are no bullets in the chamber and the magazine has been removed. J then points the gun at K and yells “I’ll shoot you right now!”
• On FaceTime with X, who is hundreds of miles away in an unknown location, Y holds up a gun and tells X he will kill him that night.
•  T waves the frame of a handgun at U after removing the slide and barrel in U’s presence, then says, “I’ll put you in the ground right now!”

In the above hypotheticals, there is no “apparent ability” of the defendant to carry out imminent and unlawful threatened violence involving the firearm in question. Thus, even though a firearm was used or threatened to be used in a manner that would violate Florida law, aggravated assault has not occurred.

The second element that may be disputed if a firearm is involved in an alleged aggravated assault is the “well-founded fear” of the alleged victim (or lack thereof). Unlike the “apparent ability” prong, Florida’s courts use an objective test to determine well-founded fear of imminent and unlawful violence. 

This is a “double-edged sword.” Even if the victim was not personally in fear of imminent violence but a reasonable person would have been, this can support a conviction. However, it also means that if fear was unreasonable, a conviction cannot be supported. Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020)

Examples of when an alleged aggravated assault with a firearm involves a “well-founded fear” of imminent and unlawful violence may include:

• C, a stranger, pulls a gun on D and threatens to shoot him. D runs away and immediately calls the police.
• R walks up to the sidewalk in front of B’s house while he is mowing the lawn and flashes his pistol, threatening to kill him.
• During a heated argument outside a restaurant, A takes out his gun and begins charging at B while waving the gun above his head.

Under these circumstances, the alleged victims developing a well-founded fear would almost certainly be reasonable due to the context.

However, examples of cases where the fear (even if real) would not be well-founded due to the lack of truly threatening conduct include:

• J is cleaning his unloaded gun on a table. D walks into the house and, without realizing what is happening, sees the firearm. D is subjectively in fear of violence.
• L is lawfully carrying a firearm. G, who strongly dislikes weapons, sees the gun and jumps back before calling the police.
• M is legally carrying his pistol under his shirt at the store, with the outline visible. O sees this and contacts the authorities, believing a mass shooting is about to occur.

Despite the involvement of a firearm in the above cases, the fear developed by the alleged victims is not “well-founded” for purposes of supporting an aggravated assault charge. The fear must be developed based on a threat of imminent, unlawful violence that the defendant had the apparent ability to carry out. 

Finally, the State must prove that the firearm-related threat at the center of an aggravated assault case (if it occurred) was intentional and unlawful. Someone pulling a firearm is not by itself aggravated assault, as there are many circumstances where this could be legally justified (such as a home invasion, etc.).

Examples of when an aggravated assault with a firearm charge are likely to fail because of the lack of intent to make a threat of imminent and unlawful violence include:

• T is in the supermarket and his lawfully-carried gun accidentally slips out of his waistband as he is walking. G, a passerby, panics and alerts the authorities. (No intentional threat by T = no aggravated assault)
• H is cleaning his unloaded gun at the dining room table. J enters the room and is immediately fearful, mistakenly believing H is threatening him. (No intentional threat by H = no aggravated assault)
• G is sleeping at home when an intruder, K, climbs through his window. When G grabs his gun and points it at K, K panics and runs. (Threat of violence was lawful to deter a home invasion = no aggravated assault)
• N hears glass break and sees a stranger approaching his child’s bedroom window. N points his gun toward the figure and yells, “Don’t you come near my house!” (Threat of violence was lawful to protect the child = no aggravated assault)

Critically, the threat made with the firearm must be both intentional and unlawful in nature. The State must prove that the defendant intentionally made a firearm-related threat and did not have legal justification to do so beyond a reasonable doubt for a conviction to be obtained.

There are various defenses to aggravated assault with a firearm in Florida, one or more of which may apply depending on the facts of a case. These include:

• Self-defense/defense of others: If the conduct was a reasonable and proportionate response to the threat faced under Florida’s Stand Your Ground law, this is a total defense (Fla. Stat. 776.012 and 776.032). This is a common defense in firearm-related cases.
• Lack of intent to threaten or cause fear to the victim (e.g. a gun accidentally falling out of someone’s waistband)
• No apparent ability to carry out the threat 
• Procedural challenges (motions to suppress, Miranda waiver issues, etc.)
• False allegations (especially strong if a lack of corroborating evidence and victim has a motive to fabricate)
• Involuntary intoxication: Uncommon but can serve as a defense under Brancaccio v. State, 698 So. 2d 597 (Fla. 4th DCA 1997). However, voluntary intoxication is not a defense, per Fla. Stat. 775.051.
• Alibi/mistaken identity (an especially effective defense with GPS/phone data, witness accounts disputing the defendant’s presence, etc.)
• Necessity/duress (under limited circumstances)

So, is pulling a gun an aggravated assault in Florida? The answer is – it depends on whether 1) the defendant had the apparent ability to carry out the firearm-related threat 2) the threatened violence was imminent and without lawful justification, and 3) the fear of unlawful and imminent violence was objectively reasonable.

If someone makes a threat of imminent and unlawful violence involving a firearm with the apparent ability to carry it out, causing the victim to develop a well-founded fear of violence, aggravated assault has been committed. However, if even one of these elements is not proven beyond a reasonable doubt, a conviction cannot be legally supported.

Aggravated assault with a deadly weapon is a very serious charge in Florida that 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 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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