Florida Senate - 2014                                     SB 448
       
       
        
       By Senator Evers
       
       
       
       
       
       2-00388B-14                                            2014448__
    1                        A bill to be entitled                      
    2         An act relating to the threatened use of force;
    3         providing legislative findings and intent; amending s.
    4         776.012, F.S.; applying provisions relating to the use
    5         of force in defense of persons to the threatened use
    6         of force; amending s. 776.013, F.S.; applying
    7         presumption relating to the use of deadly force to the
    8         threatened use of deadly force in the defense of a
    9         residence and similar circumstances; applying
   10         provisions relating to such use of force to the
   11         threatened use of force; amending s. 776.031, F.S.;
   12         applying provisions relating to the use of force in
   13         defense of property to the threatened use of force;
   14         amending s. 776.032, F.S.; applying immunity
   15         provisions that relate to the use of force to the
   16         threatened use of force; amending s. 776.041, F.S.;
   17         applying provisions relating to the use of force by an
   18         aggressor to the threatened use of force; providing
   19         exceptions; amending s. 776.051, F.S.; providing that
   20         a person is not justified in the threatened use of
   21         force to resist an arrest by a law enforcement
   22         officer; providing an effective date.
   23          
   24  Be It Enacted by the Legislature of the State of Florida:
   25  
   26         Section 1. (1) The Legislature finds that persons have been
   27  criminally prosecuted and have been sentenced to mandatory
   28  minimum terms of imprisonment pursuant to s. 775.087, Florida
   29  Statutes, for threatening to use force in a manner and under
   30  circumstances that would have been justifiable under chapter
   31  776, Florida Statutes, had force actually been used.
   32         (2) The Legislature intends to:
   33         (a) Provide criminal and civil immunity to those who
   34  threaten to use force if the threat was made in a manner and
   35  under circumstances that would have been immune under chapter
   36  776, Florida Statutes, had force actually been used.
   37         (b) Clarify that those who threaten to use force may claim
   38  self-defense if the threat was made in a manner and under
   39  circumstances that would have been justifiable under chapter
   40  776, Florida Statutes, had force actually been used.
   41         (c) Ensure that those who threaten to use force in a manner
   42  and under circumstances that are justifiable under chapter 776,
   43  Florida Statutes, are not sentenced to a mandatory minimum term
   44  of imprisonment pursuant to s. 775.087, Florida Statutes.
   45         (d) Encourage those who have been sentenced to a mandatory
   46  minimum term of imprisonment pursuant to s. 775.087, Florida
   47  Statutes, for threatening to use force in a manner and under
   48  circumstances that are justifiable under chapter 776, Florida
   49  Statutes, to apply for executive clemency.
   50         Section 2. Section 776.012, Florida Statutes, is amended to
   51  read:
   52         776.012 Use or threatened use of force in defense of
   53  person.—A person is justified in using or threatening to use
   54  force, except deadly force, against another when and to the
   55  extent that the person reasonably believes that such conduct is
   56  necessary to defend himself or herself or another against the
   57  other’s imminent use of unlawful force. However, a person is
   58  justified in using or threatening to use the use of deadly force
   59  and does not have a duty to retreat if:
   60         (1) He or she reasonably believes that using or threatening
   61  to use such force is necessary to prevent imminent death or
   62  great bodily harm to himself or herself or another or to prevent
   63  the imminent commission of a forcible felony; or
   64         (2) Under those circumstances permitted pursuant to s.
   65  776.013.
   66         Section 3. Subsections (1), (2), and (3) of section
   67  776.013, Florida Statutes, are amended to read:
   68         776.013 Home protection; use or threatened use of deadly
   69  force; presumption of fear of death or great bodily harm.—
   70         (1) A person is presumed to have held a reasonable fear of
   71  imminent peril of death or great bodily harm to himself or
   72  herself or another when using or threatening to use defensive
   73  force that is intended or likely to cause death or great bodily
   74  harm to another if:
   75         (a) The person against whom the defensive force was used or
   76  threatened was in the process of unlawfully and forcefully
   77  entering, or had unlawfully and forcibly entered, a dwelling,
   78  residence, or occupied vehicle, or if that person had removed or
   79  was attempting to remove another against that person’s will from
   80  the dwelling, residence, or occupied vehicle; and
   81         (b) The person who uses or threatens to use defensive force
   82  knew or had reason to believe that an unlawful and forcible
   83  entry or unlawful and forcible act was occurring or had
   84  occurred.
   85         (2) The presumption set forth in subsection (1) does not
   86  apply if:
   87         (a) The person against whom the defensive force is used or
   88  threatened has the right to be in or is a lawful resident of the
   89  dwelling, residence, or vehicle, such as an owner, lessee, or
   90  titleholder, and there is not an injunction for protection from
   91  domestic violence or a written pretrial supervision order of no
   92  contact against that person; or
   93         (b) The person or persons sought to be removed is a child
   94  or grandchild, or is otherwise in the lawful custody or under
   95  the lawful guardianship of, the person against whom the
   96  defensive force is used or threatened; or
   97         (c) The person who uses or threatens to use defensive force
   98  is engaged in an unlawful activity or is using the dwelling,
   99  residence, or occupied vehicle to further an unlawful activity;
  100  or
  101         (d) The person against whom the defensive force is used or
  102  threatened is a law enforcement officer, as defined in s.
  103  943.10(14), who enters or attempts to enter a dwelling,
  104  residence, or vehicle in the performance of his or her official
  105  duties and the officer identified himself or herself in
  106  accordance with any applicable law or the person using or
  107  threatening to use force knew or reasonably should have known
  108  that the person entering or attempting to enter was a law
  109  enforcement officer.
  110         (3) A person who is not engaged in an unlawful activity and
  111  who is attacked in any other place where he or she has a right
  112  to be has no duty to retreat and has the right to stand his or
  113  her ground and use or threaten to use meet force with force,
  114  including deadly force if he or she reasonably believes it is
  115  necessary to do so to prevent death or great bodily harm to
  116  himself or herself or another or to prevent the commission of a
  117  forcible felony.
  118         Section 4. Section 776.031, Florida Statutes, is amended to
  119  read:
  120         776.031 Use or threatened use of force in defense of
  121  property others.—A person is justified in using or threatening
  122  to use the use of force, except deadly force, against another
  123  when and to the extent that the person reasonably believes that
  124  such conduct is necessary to prevent or terminate the other’s
  125  trespass on, or other tortious or criminal interference with,
  126  either real property other than a dwelling or personal property,
  127  lawfully in his or her possession or in the possession of
  128  another who is a member of his or her immediate family or
  129  household or of a person whose property he or she has a legal
  130  duty to protect. However, a the person is justified in using or
  131  threatening to use the use of deadly force only if he or she
  132  reasonably believes that such conduct force is necessary to
  133  prevent the imminent commission of a forcible felony. A person
  134  does not have a duty to retreat if the person is in a place
  135  where he or she has a right to be.
  136         Section 5. Subsections (1) and (2) of section 776.032,
  137  Florida Statutes, are amended to read:
  138         776.032 Immunity from criminal prosecution and civil action
  139  for justifiable use or threatened use of force.—
  140         (1) A person who uses or threatens to use force as
  141  permitted in s. 776.012, s. 776.013, or s. 776.031 is justified
  142  in using such conduct force and is immune from criminal
  143  prosecution and civil action for the use or threatened use of
  144  such force, unless the person against whom force was used or
  145  threatened is a law enforcement officer, as defined in s.
  146  943.10(14), who was acting in the performance of his or her
  147  official duties and the officer identified himself or herself in
  148  accordance with any applicable law or the person using or
  149  threatening to use force knew or reasonably should have known
  150  that the person was a law enforcement officer. As used in this
  151  subsection, the term “criminal prosecution” includes arresting,
  152  detaining in custody, and charging or prosecuting the defendant.
  153         (2) A law enforcement agency may use standard procedures
  154  for investigating the use or threatened use of force as
  155  described in subsection (1), but the agency may not arrest the
  156  person for using or threatening to use force unless it
  157  determines that there is probable cause that the force that was
  158  used or threatened was unlawful.
  159         Section 6. Subsection (2) of section 776.041, Florida
  160  Statutes, is amended to read:
  161         776.041 Use or threatened use of force by aggressor.—The
  162  justification described in the preceding sections of this
  163  chapter is not available to a person who:
  164         (2) Initially provokes the use or threatened use of force
  165  against himself or herself, unless:
  166         (a) Such force or threat of force is so great that the
  167  person reasonably believes that he or she is in imminent danger
  168  of death or great bodily harm and that he or she has exhausted
  169  every reasonable means to escape such danger other than the use
  170  or threatened use of force which is likely to cause death or
  171  great bodily harm to the assailant; or
  172         (b) In good faith, the person withdraws from physical
  173  contact with the assailant and indicates clearly to the
  174  assailant that he or she desires to withdraw and terminate the
  175  use or threatened use of force, but the assailant continues or
  176  resumes the use or threatened use of force.
  177         Section 7. Subsection (1) of section 776.051, Florida
  178  Statutes, is amended to read:
  179         776.051 Use or threatened use of force in resisting arrest
  180  or making an arrest or in the execution of a legal duty;
  181  prohibition.—
  182         (1) A person is not justified in the use or threatened use
  183  of force to resist an arrest by a law enforcement officer, or to
  184  resist a law enforcement officer who is engaged in the execution
  185  of a legal duty, if the law enforcement officer was acting in
  186  good faith and he or she is known, or reasonably appears, to be
  187  a law enforcement officer.
  188         Section 8. This act shall take effect upon becoming a law.