Florida Senate - 2014 CS for CS for SB's 130 & 122 By the Committees on Criminal Justice; and Judiciary; and Senators Simmons, Smith, and Thompson 591-02737-14 2014130c2 1 A bill to be entitled 2 An act relating to the use of deadly force; amending 3 ss. 30.60 and 166.0485, F.S.; requiring the county 4 sheriff or municipal police department to issue 5 reasonable guidelines for the operation of 6 neighborhood crime watch programs; providing that the 7 guidelines are subject to reasonable exceptions; 8 amending s. 776.032, F.S.; providing that a person who 9 is justified in using force is immune from criminal 10 prosecution and civil action initiated by the person 11 against whom the force was used; revising the 12 definition of the term “criminal prosecution”; 13 clarifying that a law enforcement agency retains the 14 authority and duty to fully investigate the use of 15 force upon which an immunity may be claimed; providing 16 that during a pretrial immunity hearing, the state 17 bears the burden of proving by a preponderance of the 18 evidence that the defendant’s use of force was not 19 lawful; amending s. 776.041, F.S.; providing that any 20 reason, including immunity, used by an aggressor to 21 justify the use of force is not available to the 22 aggressor under specified circumstances; providing 23 that provocation justifying the use of defensive force 24 must include the use of force or the threat of the use 25 of force; creating s. 776.09, F.S.; providing 26 legislative intent relating to the justifiable use of 27 force; providing an effective date. 28 29 Be It Enacted by the Legislature of the State of Florida: 30 31 Section 1. Section 30.60, Florida Statutes, is amended to 32 read: 33 30.60 Establishment of neighborhood crime watch programs.— 34 (1) A county sheriff or municipal police department may 35 establish neighborhood crime watch programs within the county or 36 municipality. The participants of a neighborhood crime watch 37 program shall include, but need not be limited to, residents of 38 the county or municipality and owners of businesses located 39 within the county or municipality. 40 (2) The county sheriff or municipal police department shall 41 issue reasonable guidelines for the operation of such programs. 42 The guidelines must include, but are not limited to, prohibiting 43 a neighborhood crime watch patrol participant, while on patrol, 44 from confronting or attempting to apprehend a person suspected 45 of improper or unlawful activity, subject, however, to those 46 circumstances in which a reasonable person would be permitted, 47 authorized, or expected to assist another person. 48 Section 2. Section 166.0485, Florida Statutes, is amended 49 to read: 50 166.0485 Establishment of neighborhood crime watch 51 programs.— 52 (1) A county sheriff or municipal police department may 53 establish neighborhood crime watch programs within the county or 54 municipality. The participants of a neighborhood crime watch 55 program shall include, but need not be limited to, residents of 56 the county or municipality and owners of businesses located 57 within the county or municipality. 58 (2) The county sheriff or municipal police department shall 59 issue reasonable guidelines for the operation of such programs. 60 The guidelines must include, but are not limited to, prohibiting 61 a neighborhood crime watch patrol participant, while on patrol, 62 from confronting or attempting to apprehend a person suspected 63 of improper or unlawful activity, subject, however, to those 64 circumstances in which a reasonable person would be permitted, 65 authorized, or expected to assist another person. 66 Section 3. Present subsection (1) of section 776.032, 67 Florida Statutes, is amended, subsections (2) and (3) are 68 renumbered as subsections (3) and (4), respectively, and a new 69 subsection (2) is added to that section, to read: 70 776.032 Immunity from criminal prosecution and civil action 71 for justifiable use of force.— 72 (1) A person who uses force as permitted in s. 776.012, s. 73 776.013, or s. 776.031 is justified in using such force and is 74 immune from criminal prosecution and civil action by the person, 75 personal representative, or heirs of the person, against whom 76 force was used for the use of such force, unless the person 77 against whom force was used is a law enforcement officer, as 78 defined in s. 943.10(14), who was acting in the performance of 79 his or her official duties and the officer identified himself or 80 herself in accordance with any applicable law or the person 81 using force knew or reasonably should have known that the person 82 was a law enforcement officer. As used in this subsection, the 83 term “criminal prosecution” includes arresting, taking into 84 custody, or
arresting, detaining in custody, andcharging or 85 prosecuting the defendant. This subsection does not restrict a 86 law enforcement agency’s authority and duty to fully and 87 completely investigate the use of force upon which an immunity 88 may be claimed or any event surrounding such use of force. 89 (2) A defendant is entitled to an evidentiary hearing on a 90 pretrial motion to dismiss an indictment or information by 91 making a prima facie showing of the justifiable use of force. 92 During the hearing, the state bears the burden of proving by a 93 preponderance of the evidence that the defendant’s use of force 94 was not lawful. For purposes of the motion, the judge shall 95 decide all factual disputes relating to the defendant’s use of 96 force, but any factual findings are not established for the 97 purposes of any subsequent trial. The defendant’s testimony is 98 not admissible in a subsequent hearing or trial except for the 99 purposes of impeachment. The denial of the defendant’s motion to 100 dismiss or any factual findings at the hearing do not preclude 101 the defendant from raising any defense or presenting any 102 evidence at trial. 103 Section 4. Section 776.041, Florida Statutes, is amended to 104 read: 105 776.041 Use of force by aggressor.—The justifications 106 justificationdescribed in the preceding sections of this 107 chapter, including, but not limited to, the immunity provided 108 for in s. 776.032, are isnot available to a person who: 109 (1) Is attempting to commit, committing, or escaping after 110 the commission of, a forcible felony; or 111 (2) Initially provokes the use of force against himself or 112 herself, unless: 113 (a) Such force is so great that the person reasonably 114 believes that he or she is in imminent danger of death or great 115 bodily harm and that he or she has exhausted every reasonable 116 means to escape such danger other than the use of force which is 117 likely to cause death or great bodily harm to the assailant; or 118 (b) In good faith, the person withdraws from physical 119 contact with the assailant and indicates clearly to the 120 assailant that he or she desires to withdraw and terminate the 121 use of force, but the assailant continues or resumes the use of 122 force. 123 124 For purposes of this subsection, provocation must include the 125 use of force or threat of force. 126 Section 5. Section 776.09, Florida Statutes, is created to 127 read: 128 776.09 Justifiable use of force; legislative intent.—The 129 use of force authorized by this chapter is not intended to 130 encourage vigilantism or acts of revenge, authorize the 131 initiation of a confrontation as a pretext to respond with 132 deadly force, or negate a duty to retreat for persons engaged in 133 unlawful mutual combat. 134 Section 6. This act shall take effect October 1, 2014.