Senate Bill sb0436
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Florida Senate - 2005 SB 436
By Senator Peaden
2-361A-05
1 A bill to be entitled
2 An act relating to the protection of persons
3 and property; creating s. 776.013, F.S.;
4 authorizing a person to use force, including
5 deadly force, against an intruder or attacker
6 in a dwelling, residence, or vehicle under
7 specified circumstances; creating a presumption
8 that a reasonable fear of death or bodily
9 injury exists under certain circumstances;
10 creating a presumption that a person acts with
11 the intent to use force or violence under
12 specified circumstances; providing definitions;
13 amending ss. 776.012 and 776.031, F.S.;
14 providing that a person is justified in using
15 deadly force under certain circumstances;
16 declaring that a person is not under a duty to
17 retreat if the person is in a place where he or
18 she has a right to be; creating s. 776.032,
19 F.S.; providing immunity from criminal
20 prosecution or civil action for using deadly
21 force; authorizing a law enforcement agency to
22 investigate the use of deadly force but
23 prohibiting the agency from arresting the
24 person unless the agency determines that
25 probable cause exists showing that the force
26 the person used was unlawful; directing the
27 court to award attorney's fees, court costs,
28 loss of income, and other expenses under
29 specified circumstances; amending s. 776.041,
30 F.S.; revising the circumstances that justify
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Florida Senate - 2005 SB 436
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1 the use of force by an aggressor; providing an
2 effective date.
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4 WHEREAS, the Legislature finds that it is necessary to
5 restore absolute rights of law-abiding people to protect
6 themselves, their families and others, and their property from
7 intruders and attackers without fear of prosecution or civil
8 action for defending that to which they are rightfully
9 entitled, and
10 WHEREAS, the castle doctrine is an ancient common-law
11 doctrine, with origins going back at least to Roman law, which
12 declares that a man's home is his castle and, thus, a person
13 may use all manner of force, including deadly force, to
14 protect it and its inhabitants from attack, and
15 WHEREAS, Section 2 of Article I of the State
16 Constitution guarantees basic rights to all natural persons,
17 including the right to defend life and protect property, and
18 WHEREAS, the residents of this state have a right to
19 expect absolute safety within their own homes or vehicles, and
20 WHEREAS, no person or victim of crime should be
21 required to surrender his or her life, health, or property to
22 a criminal, nor should a person or victim be required to
23 retreat in the face of intrusion or attack, NOW, THEREFORE,
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25 Be It Enacted by the Legislature of the State of Florida:
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27 Section 1. Section 776.013, Florida Statutes, is
28 created to read:
29 776.013 Home protection; use of deadly force;
30 presumption of fear of death or bodily injury.--
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Florida Senate - 2005 SB 436
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1 (1) A person is presumed to have held a reasonable
2 fear of imminent peril of death or bodily injury to himself or
3 herself or another when using defensive force that is intended
4 or likely to cause death or bodily injury to another if:
5 (a) The person against whom the defensive force was
6 used had unlawfully or forcibly entered or attempted to enter
7 a dwelling, residence, or vehicle or if that person had
8 removed or attempted to remove another from the dwelling,
9 residence, or vehicle; and
10 (b) The person using defensive force knew or had
11 reason to believe that an unlawful or forcible entry or
12 unlawful or forcible act had occurred.
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14 A person does not have a duty to retreat from a dwelling,
15 residence, vehicle, or place where the person has a right to
16 be.
17 (2) A person who unlawfully enters or attempts to
18 enter a person's dwelling, residence, or occupied vehicle is
19 presumed to be doing so with the intent to commit an unlawful
20 act involving force or violence.
21 (3) As used in this section, the term:
22 (a) "Dwelling" means a building or conveyance of any
23 kind, including any attached porch, whether the building or
24 conveyance is temporary or permanent, mobile or immobile,
25 which has a roof over it, including a tent, and is designed to
26 be occupied by people lodging therein at night, together with
27 the curtilage thereof.
28 (b) "Residence" means a dwelling in which a person
29 resides either temporarily or permanently or is visiting as an
30 invited guest.
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1 (c) "Vehicle" means any conveyance of any kind,
2 whether or not motorized, which is designed to transport
3 people or property.
4 Section 2. Section 776.012, Florida Statutes, is
5 amended to read:
6 776.012 Use of force in defense of person.--A person
7 is justified in using the use of force that is intended or
8 likely to cause death or bodily injury, except deadly force,
9 against another when and to the extent that the person
10 reasonably believes that such conduct is necessary to defend
11 himself or herself or another against the such other's
12 imminent use of unlawful force. However, the person is
13 justified in the use of deadly force only if he or she
14 reasonably believes that such force is necessary to prevent
15 imminent death or great bodily harm to himself or herself or
16 another or to prevent the imminent commission of a forcible
17 felony. A person does not have a duty to retreat if the person
18 is in a place where he or she has a right to be.
19 Section 3. Section 776.031, Florida Statutes, is
20 amended to read:
21 776.031 Use of force in defense of others.--A person
22 is justified in the use of force, except deadly force, against
23 another when and to the extent that the person reasonably
24 believes that such conduct is necessary to prevent or
25 terminate the such other's trespass on, or other tortious or
26 criminal interference with, either real property other than a
27 dwelling or personal property, lawfully in his or her
28 possession or in the possession of another who is a member of
29 his or her immediate family or household or of a person whose
30 property he or she has a legal duty to protect. However, the
31 person is justified in the use of deadly force only if he or
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1 she reasonably believes that the such force is necessary to
2 prevent the imminent commission of a forcible felony. A person
3 does not have a duty to retreat if the person is in a place
4 where he or she has a right to be.
5 Section 4. Section 776.032, Florida Statutes, is
6 created to read:
7 776.032 Immunity from criminal prosecution and civil
8 action for justifiable use of force.--
9 (1) A person who uses force as described in s.
10 776.012, s. 776.013, or s. 776.031 is justified in using such
11 force and is immune from criminal prosecution and civil action
12 for the use of such force.
13 (2) A law enforcement agency may use standard
14 procedures for investigating the use of the force, but the
15 agency may not arrest the person for using force unless it
16 determines that probable cause exists showing that the force
17 that was used was unlawful.
18 (3)(a) The court shall award attorney's fees, court
19 costs, compensation for loss of income, and all expenses
20 incurred by the defendant in defense of the criminal
21 prosecution if the court finds that the defendant is immune
22 from prosecution as provided in subsection (1).
23 (b) As used in this subsection, the term "criminal
24 prosecution" includes wrongfully arresting, detaining in
25 custody, and charging or prosecuting the defendant. The law
26 enforcement agency or state attorney that brought the criminal
27 prosecution is liable to the defendant for the payment of fees
28 and costs.
29 (4) The court shall award attorney's fees, court
30 costs, compensation for loss of income, and all expenses
31 incurred by the defendant in defense of any civil action
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1 brought by a plaintiff if the court finds that the defendant
2 is immune from prosecution as provided in subsection (1). The
3 plaintiff and the plaintiff's attorney are jointly and
4 severally liable to the defendant for the payment of fees and
5 costs.
6 Section 5. Section 776.041, Florida Statutes, is
7 amended to read:
8 776.041 Use of force by aggressor.--The justification
9 described in the preceding sections of this chapter is not
10 available to a person who:
11 (1) Is attempting to commit, committing, or escaping
12 after the commission of, a forcible felony; or
13 (2) Initially provokes the use of force against
14 himself or herself, unless:
15 (a) Such force is so great that the person reasonably
16 believes that he or she is in imminent danger of death or
17 great bodily harm and that he or she has exhausted every
18 reasonable means to escape such danger other than the use of
19 force which is likely to cause death or great bodily harm to
20 the assailant; or
21 (b) in good faith, the person withdraws from physical
22 contact with the assailant and indicates clearly to the
23 assailant that he or she desires to withdraw and terminate the
24 use of force, but the assailant continues or resumes the use
25 of force.
26 Section 6. This act shall take effect upon becoming a
27 law..
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2 SENATE SUMMARY
3 Provides that a person may use force, including deadly
force, against an intruder or attacker in a dwelling,
4 residence, or vehicle under specified circumstances.
Creates a presumption that a reasonable fear of death or
5 bodily injury exists under certain circumstances. Creates
a presumption that a person acts with the intent to use
6 force or violence under specified circumstances. Provides
that a person is justified in using deadly force.
7 Declares that a person is not under a duty to retreat if
the person is in a place where he or she has a right to
8 be. Provides that a person is immune from criminal
prosecution and civil action for using deadly force.
9 Authorizes a law enforcement agency to investigate the
use of deadly force but prohibits the agency from
10 arresting the person unless the agency determines that
probable cause exists showing that the force that was
11 used was unlawful. Directs the court to award attorney's
fees, court costs, loss of income, and other expenses
12 under specified circumstances. Revises the circumstances
that justify the use of force by an aggressor.
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