Florida Senate - 2014 SB 438 By Senator Altman 16-00223-14 2014438__ 1 A bill to be entitled 2 An act relating to defense of life, home, or property; 3 creating s. 776.001, F.S.; providing legislative 4 findings and intent; defining terms; providing that 5 the defensive display of a weapon or firearm, 6 including the discharge of a firearm as a warning 7 shot, does not constitute the use of deadly force; 8 providing that a person is immune from prosecution if 9 he or she acts in defense of life, home, or property 10 from an unlawful activity or the threat of an unlawful 11 activity under certain circumstances; providing for 12 the justifiable defensive display of a weapon or 13 firearm in certain circumstances; providing 14 exceptions; providing that a person is not required to 15 defensively display a weapon or firearm or issue a 16 defensive warning before using force or deadly force 17 if the person is otherwise justified in using or 18 threatening to use force; amending s. 776.06, F.S.; 19 revising the definition of the term “deadly force” to 20 apply to a law enforcement officer or correctional 21 officer; creating s. 775.0878, F.S.; providing 22 legislative findings; requiring the sentencing court 23 to impose a downward departure from minimum sentence 24 requirements related to the possession or use of a 25 weapon or firearm by a person convicted of certain 26 offenses under specified circumstances; providing an 27 effective date. 28 29 WHEREAS, the intent of mandatory minimum sentencing laws is 30 to deter crime without discouraging the lawful defense of life, 31 home, or property, and 32 WHEREAS, the defensive display of a weapon or firearm in 33 self-defense does not constitute the use of deadly force and is 34 justified in defense of life, home, or property, and 35 WHEREAS, a person who acts to lawfully defend himself or 36 herself is, at that point, already a crime victim, NOW, 37 THEREFORE, 38 39 Be It Enacted by the Legislature of the State of Florida: 40 41 Section 1. Section 776.001, Florida Statutes, is created to 42 read: 43 776.001 Defense of life, home, or property.— 44 (1) The Legislature finds that it is unreasonable to 45 prosecute a person for acting in a lawfully defensive manner. 46 The Legislature further finds that the defensive display of a 47 weapon or firearm, including the discharge of a firearm as a 48 warning shot, is a lawfully valid method to prevent or to 49 terminate an unlawful activity. Therefore, it is the intent of 50 the Legislature that a person be immunized from prosecution if 51 he or she acts in such a manner as to protect life, home, or 52 property from an imminent or actual unlawful activity. 53 (2) As used in this section, the term: 54 (a) “Deadly force” has the same meaning as in s. 776.06. 55 (b) “Defensively displays a weapon or firearm” means to 56 overtly show or present a weapon or firearm in order to cause an 57 aggressor to believe that the person who overtly shows or 58 presents a weapon or firearm will, if necessary: 59 1. Use force or deadly force to lawfully defend from the 60 aggressor’s imminent or actual unlawful activity against the 61 life, home, or property of the person; or 62 2. Use force sufficient to effect a lawful arrest. 63 64 The term does not include the mere carrying of a weapon or 65 firearm in a manner that is not prohibited by law. 66 (c) “Defensive warning” or “defensively warned” means: 67 1. A verbal warning to place an aggressor on notice that 68 the person attacked actually possesses or has available access 69 to a weapon or firearm; or 70 2. Placement of the person’s hand on a weapon or firearm 71 while the weapon or firearm is contained in a pocket, purse, 72 holster, or other means of containment or transport. 73 (d) “Force” means: 74 1. Words or actions that reasonably convey the threat of 75 force, including, but not limited to, direct threats to cause 76 death or great bodily harm to another person; or 77 2. The application of physical force, including the use of 78 a weapon or firearm. 79 (e) “Unlawful activity” means: 80 1. Commission of a crime involving the use or threat of 81 violence; 82 2. Illegal distribution of a controlled substance; or 83 3. Use of a residence, commercial structure, or occupied 84 vehicle to commit a crime involving the use or threat of 85 violence or the illegal distribution of a controlled substance. 86 (3) A person acting in defense of life, home, or property 87 from an unlawful activity or the threat of an unlawful activity 88 is immune from prosecution if he or she: 89 (a) Defensively displayed a weapon or firearm if the person 90 reasonably believed that displaying the weapon or firearm was 91 necessary to prevent an unlawful activity or to terminate an 92 actual unlawful activity; 93 (b) Defensively warned the aggressor that he or she was 94 prepared to use force or, if necessary, deadly force by having 95 possession of or access to a weapon or firearm; 96 (c) Fired a warning shot if the person firing the shot 97 believed that discharging the weapon or firearm would prevent an 98 unlawful activity or terminate an actual unlawful activity; 99 (d) Used force in defense of life, home, or property if the 100 person reasonably believed that using force was necessary to 101 prevent an aggressor from committing an unlawful activity or to 102 terminate an ongoing unlawful activity; or 103 (e) Used deadly force if the person reasonably believed 104 that using deadly force was necessary to prevent death or great 105 bodily harm to himself or herself or to prevent an aggressor 106 from continuing an ongoing unlawful activity. 107 (4) This section does not require a person to defensively 108 display a weapon or firearm or to issue a defensive warning 109 before using force or deadly force if the person is otherwise 110 justified in using or threatening to use force. 111 (5) This section does not immunize a person from 112 prosecution if the person: 113 (a) Intentionally provoked another person into using or 114 attempting to use force or deadly force without cause; or 115 (b) Attempted to commit, committed, or escaped immediately 116 after the commission of, an unlawful activity. 117 Section 2. Section 776.06, Florida Statutes, is amended to 118 read: 119 776.06 Deadly force by law enforcement or correctional 120 officers.— 121 (1) As used in this section and as applied to a law 122 enforcement officer or correctional officer who acts during and 123 within the scope of his or her official duties, the term “deadly 124 force” means force that is likely to cause death or great bodily 125 harm and includes, but is not limited to: 126 (a) The firing of a firearm in the direction of the person 127 to be arrested, even though no intent exists to kill or inflict 128 great bodily harm; and 129 (b) The firing of a firearm at a vehicle in which the 130 person to be arrested is riding. 131 (2)(a) The term “deadly force” does not include the 132 discharge of a firearm by a law enforcement officer or 133 correctional officer during and within the scope of his or her 134 official duties which is loaded with a less-lethal munition. As 135 used in this subsection, the term “less-lethal munition” means a 136 projectile that is designed to stun, temporarily incapacitate, 137 or cause temporary discomfort to a person without penetrating 138 the person’s body. 139 (b) A law enforcement officer or a correctional officer is 140 not liable in any civil or criminal action arising out of the 141 use of any less-lethal munition in good faith during and within 142 the scope of his or her official duties. 143 Section 3. Section 775.0878, Florida Statutes, is created 144 to read: 145 775.0878 Exemption from minimum sentence requirement.— 146 (1) The Legislature finds that s. 775.087 does not apply to 147 a person who acts in self-defense or in defense of others and 148 that such person is not subject to sentencing under s. 775.087. 149 (2) Notwithstanding any other law, when sentencing a 150 defendant convicted of aggravated assault or aggravated battery, 151 the sentencing court shall impose a downward departure from the 152 mandatory minimum sentence prescribed in s. 775.087(2) if the 153 sentencing court finds the following by a preponderance of the 154 evidence: 155 (a) The defendant did not act in the furtherance of another 156 criminal act; 157 (b) The defendant established a prima facie case at trial, 158 during any proceeding, by stipulation, or at any stage of the 159 investigation that the act alleged was committed with defensive 160 intent; and 161 (c) The mandatory minimum sentence is not compelled for the 162 protection of the public. 163 (3) The state may appeal a downward departure from a 164 mandatory minimum sentence under this section. 165 Section 4. This act shall take effect upon becoming a law.