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Residential backyard shooting - what you can and can't do


Published:   |   Updated: March 23, 2014 at 06:37 AM

Florida Law

F.S.S. 790.15Discharging firearm in public or on residential property.

(1)Except as provided in subsection (2) or subsection (3), any person who knowingly discharges a firearm in any public place or on the right-of-way of any paved public road, highway, or street, who knowingly discharges any firearm over the right-of-way of any paved public road, highway, or street or over any occupied premises, or who recklessly or negligently discharges a firearm outdoors on any property used primarily as the site of a dwelling as defined in s. 776.013 or zoned exclusively for residential use commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. This section does not apply to a person lawfully defending life or property or performing official duties requiring the discharge of a firearm or to a person discharging a firearm on public roads or properties expressly approved for hunting by the Fish and Wildlife Conservation Commission or Florida Forest Service.

(2)Any occupant of any vehicle who knowingly and willfully discharges any firearm from the vehicle within 1,000 feet of any person commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3)Any driver or owner of any vehicle, whether or not the owner of the vehicle is occupying the vehicle, who knowingly directs any other person to discharge any firearm from the vehicle commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

SEBRING - Sebring Police Department's Commander Steve Carr remembered a time residents couldn't fire guns within city limits.

Many towns and cities in Florida had local ordinances restricting or outrightly banning use of weapons within their jurisdictions.

That changed in many municipalities in 2011 when the Florida Legislature added penalties for local governments who over-rode state laws on gun ownership and use, called state preemption.

Sebring became one of the towns that tweaked its ordinances. The city repealed Sec. 19-1(b), which had permitted firearms "on city parks, beaches, swimming areas and cemeteries only pursuant to Florida Statutes."

Once Sebring found out the Legislature had "criminalized" the enforcement or even the presence of a local ordinances regulating guns, they decided to do away with that section of the ordinance, City Attorney Bob Swaine said.

Ironically, even though there had been a state law on the books since 1987 that made gun laws - except those dealing with local zoning issues - a state responsibility, there had been no teeth in the law until three years ago when it became law Oct. 1, 2011. Any local official who now tries to enforce a local gun ordinance can face a $5,000 fine and removal from office.

Law enforcement agencies defer to the state law, which makes firing of weapons on residential properties legal in several instances as long as it is not done recklessly or negligently.

The issue came to the forefront when neighbors of Floyd Gene Hodge, a 31-year Plantation Drive resident killed in a shootout with Highlands County Sheriff's Office, complained they had called authorities several times because Hodge used to frequently shoot on his 10-acre property.

At that time, Sheriff Susan Benton explained that after the complaints were investigated, Hodge was found to have done nothing illegal.

The Sheriff's Office's Maj. David Paeplow said Florida has "basic, straight up laws" regarding when it's legal and when it's not to shoot a firearm.

"You can't fire on a road, a right of way or over a dwelling," he said. And when you are in the presence of somebody else, you can't use the weapon in a "rude, careless way" that can injure the person.

Consider a few scenarios:

Person A sees a deer dart by and fires a weapon in the right of way of a paved public road that is not approved for hunting.

Person B target shoots in his 10-acre backyard, which is not surrounded by any homes.

Person C wants to welcome in the New Year's and shoots his rifle in the air.

Which of these would be violation of Florida law?

Person C's peccadillo could be described as a non-brainer. It is a demonstration of "recklessly" and "negligently" discharging a firearm, Carr and Paeplow said. After all, what goes up has to come down and that bullet could kill or hurt someone.

For those who think that both Person A and Person B are violating the law, the answer is yes and no. Under Florida State Statute 790.15, anybody who "knowingly" discharges a firearm in any "public place or on the right-of-way of any paved public road, highway, or street" is committing a first-degree misdemeanor unless he or she is lawfully defending "life or property," or is in a spot approved for hunting.

With Person B, it gets a little involved. If he fires over an "occupied premise," he is breaking the law unless it's a "justifiable" use of force.

If he "recklessly" or "negligently" shoots outdoors on any property used primarily as a home or zoned residential, he is also breaking the law.

But if he fires his shot gun in his 10-acre backyard with an adequate backstop to prevent bullets from straying, there are no occupied homes close by, and he is not shooting recklessly or negligently and not breaking any other laws, he is within his rights to target shoot, experts say.

Recreational backyard shooting is not a problem within the boundaries of Sebring, Avon Park or Lake Placid, said Carr, Avon Park Public Safety Director Jason Lister and Lake Placid Police Chief James Fansler, except on New Year's Eve with people firing shots in the air.

"State statutes always supersede municipal ordinances," Fansler said. "We have had only one issue of shooting in the back yard that I can recall and he was using a BB gun to shoot at wooden post, which then ricocheted and struck him in the abdomen. Nothing more than a flesh wound. Thankfully, shootings are not common in Lake Placid city limits; neither at people or other targets."

Paeplow said they get frequent calls from residents about hearing shots fired in the area and go out to investigate. Sometimes, those shooting could be guilty of other laws - such as trespassing on private property or criminal negligence.

It is also illegal to shoot a weapon or have it loaded in hand, while under the influence of alcohol, any prohibited substance or prescribed medication.

If the police suspect someone of doing that, they can ask that person to submit to a chemical test, which becomes mandatory if the use of the firearm causes death or serious injury. This does not apply to those using lawful self-defense or defense of one's property, uslawshield.com states.

State law does not have any mandatory safeguard mechanisms spelled out but Paeplow said those who want to shoot in their backyards should consider having an adequate backstop to stop projectiles for going somewhere unintended.

"If it (the bullet) doesn't hit anything, you are probably not going to violate any laws," he said.

While Delia Payne Backyard feels shooting of firearms should not be allowed in a residential area or within the city limits, Mark Conner suggests changing the law to allow shooting on a minimum of 2 acres with a backstop made of sand to be no less than 4 feet high, 10 feet wide and 4 feet thick deep.

Jeri Canale, who owns Boom Boom's Gun &Ammo in Sebring, has been trying to get the county to lease a mined-out clay pit in Avon Park for a gun range for the public.

She said people feel it's unsafe to shoot in their backyards and want to target practice in a safe area, surrounded by bunkers, with certified instructors they can ask for help.

"There is no place for them to go. People don't want to shoot at the back of Golf Hammock," she said. "They don't want to shoot at the back of Sun 'n Lake. You can shoot in your backyard and that bullet can ricochet and hit you," she said.

She said she's heard of stories where a stray bullet went through a front window, hit a kitchen cabinet and ended on the floor of the living room.

She said the proposed gun range, which would charge reasonable rates and have certified NRA instructors on hand, would be a good way to be proactive and give people a safe place to "shoot their hearts out."

Stetson University Law Professor Bruce Jacob said from his reading of the law it seems it would be up to the police officer to decide if the shooting on private property was negligent or reckless.

"If you are shooting, it would depend on what (firearm) you are shooting, if there are houses around, it depends on how much land you have...," he said.

A shot-gun's range and impact would be different from a rifle, he explained, and shooting on a 10-acre property also would not be the same as target practicing on a smaller piece of land.

Florida State Statute 790.33, the one that determines state preemption over local governments on gun control laws, exempts zoning ordinances that "encompass firearms businesses along with other businesses, except that zoning ordinances that are designed for the purpose of restricting or prohibiting the sale, purchase, transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition are in conflict with this subsection and are prohibited."

Would a neighbor be able to complain that someone's shooting habits is causing a noise nuisance?

Swaine said it could be argued that it is a zoning issue and within local purview.

"You probably can if the discharge could raise a noise ordinance violation," he said.

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