F.S. 784.05(3) - Leaving a Loaded Gun Within Easy Access of a Minor

Florida law gives gun owners a wide berth in terms of when and how and where they can lawfully possess and carry their firearms. But those rights under the Second Amendment aren’t unfettered, particularly when it comes to the protection of children. As a Fort Lauderdale criminal defense lawyer can explain, F.S. 784.05(3) is about just that – protecting minors from easy access to loaded guns.

This provision is part of a larger statute that focuses on culpable negligence that results in actual or potential harm to others. The first two sections broadly outline culpability for acts that could expose someone to personal injury (a second-degree misdemeanor) or that which results in actual injury to another (a more serious first-degree misdemeanor).

The third section specifically calls out the criminal culpability for storing or leaving a loaded firearm within reach or easy access of a minor. If that minor obtains the firearm and uses it to inflict injury or death upon themselves or someone else, that is a third-degree felony. As such, it carries a maximum penalty of 5 years in a Florida state prison.

In this case, a “minor” is anyone under the age of 16.

Exceptions to this include:

• The minor obtained the firearm as a result of unlawful entry by any person.
• Injuries that were incurred resulted from target or sport shooting accidents or hunting accidents.
• To members of the Armed Forces, National Guard or State Militia or to police or other law enforcement officers, with respect to firearm possession that occurs during or incidental to the performance of their official duties.

The law also allows for a small measure of grace in cases where a minor child is accidentally shot by a family member. No arrest is to be made under F.S. 784.05(3) in that circumstance until at least 7 days have passed since the shooting. In the case of a parent or guardian of any deceased minor, investigating officers must file all findings with the state attorney’s office. It’s then the prosecutor who will evaluate the evidence and take such actions as deemed appropriate.

Although talking to a Fort Lauderdale criminal defense lawyer may feel like the absolute last thing you want to do at this moment, it is essential. Having a lawyer on your side, who can potentially intervene with prosecutors and provide mitigating circumstances before charges are filed, can go a long way toward potentially preventing those charges from being filed at all OR at the very least, negotiating for reduced charges.

Elements Prosecutors Must Prove

To convict an individual under F.S. 784.05(3), the prosecution must prove several critical elements beyond a reasonable doubt. Understanding these elements is essential for building a defense strategy.

1. Possession or Control of a Loaded Firearm

The first element the prosecution must establish is that the defendant possessed or controlled a loaded firearm. This means the defendant either owned or had access to a loaded firearm at the time of the alleged incident. It does not matter whether the firearm was in the defendant’s immediate possession; constructive possession—where the firearm is in a location the defendant controls—may be sufficient for this element.

If the firearm was not loaded at the time of the incident, this statute does not apply.

2. Failure to Secure the Firearm

The second element is that the defendant failed to secure the firearm. F.S. 784.05(3) requires that loaded firearms be stored in a secure manner, such as in a locked container, with a trigger lock, or in another location where minors cannot access them. If the firearm was stored securely and a minor still managed to access it, this element may not be satisfied, which could provide grounds for a defense.

The prosecution must prove that the defendant did not take reasonable steps to prevent unauthorized access to the firearm, particularly by minors.

3. Access by a Minor

Next, the prosecution must show that a minor under the age of 16 accessed the firearm due to the defendant’s failure to secure it. This element is critical because the statute is designed specifically to protect children from accidental injury or death due to improper firearm storage.

The minor must have had direct access to the firearm as a result of the defendant's negligence. If the minor did not actually handle or gain access to the firearm, this element cannot be met.

4. Discharge of the Firearm

The final element of the charge requires proof that the minor discharged the firearm, and as a result, caused injury or death. The mere access or possession of the firearm is not enough to constitute a violation of F.S. 784.05(3); the statute requires that the firearm was actually fired and that the discharge led to harm.

If the minor accessed the firearm but did not discharge it, the defendant cannot be convicted under this specific provision, although they may face other legal consequences.

Possible Defenses to F.S. 784.05(3) Charges

There are several defenses that a skilled criminal defense attorney can raise to challenge charges under F.S. 784.05(3). The success of any defense depends on the specific facts of the case, but here are a few common strategies:

1. The Firearm Was Properly Secured

One of the strongest defenses is to argue that the firearm was properly secured. If the defendant took reasonable steps to lock the firearm in a secure container, apply a trigger lock, or otherwise store it in a manner that would prevent a minor from accessing it, this could negate one of the key elements the prosecution must prove.

The defense may present evidence such as witness testimony or photographs to show that the firearm was not easily accessible to the minor.

2. No Access by a Minor

Another defense is that the minor did not actually access the firearm. If the minor did not handle or fire the weapon, the defendant cannot be convicted under this statute. For example, if another person accessed the firearm or if the firearm was accidentally discharged by an adult, the statute would not apply.

3. The Firearm Was Not Loaded

If the firearm was unloaded at the time of the incident, this statute does not apply. The law specifically refers to loaded firearms, so if the weapon was stored in an unloaded condition, the defendant may have grounds for dismissal of the charges.

4. Lack of Knowledge

In some cases, the defendant may not have known that the firearm was accessible to a minor. For instance, if someone else placed the firearm in a location where the minor could access it, or if the defendant was unaware that the minor was present in the home, this could serve as a defense. However, the defendant must have taken reasonable precautions to secure the firearm initially.

5. Unforeseeable Circumstances

Sometimes, unforeseeable circumstances arise that prevent the defendant from maintaining control over their firearm. For example, if a natural disaster, burglary, or other unexpected event led to the minor gaining access to the firearm, this may constitute a defense. The defense can argue that the defendant was not negligent and could not have reasonably anticipated the event that led to the firearm being accessed.

If you or someone you know is facing charges under F.S. 784.05(3), it is crucial to consult with an experienced criminal defense attorney who can help protect your rights and develop a strong defense.

If you have been charged with a gun crime or weapons offense in South Florida, contact the Fort Lauderdale Criminal Defense Lawyers at The Ansara Law Firm by calling (954) 761-4011.

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