Senate Bill sb0436c1

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    Florida Senate - 2005                            CS for SB 436

    By the Committee on Criminal Justice; and Senators Peaden,
    Argenziano, Clary, Wise, Lawson, Crist, Baker, Bennett, Posey,
    Villalobos, Garcia, Fasano, Webster, Lynn, Haridopolos, King,
    Dockery, Diaz de la Portilla, Bullard, Campbell, Jones,
    Sebesta, Pruitt and Constantine

    591-1458-05

  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 has no duty to retreat

17         and has the right to stand his or her ground

18         and meet force with force if the person is in a

19         place where he or she has a right to be and the

20         force is necessary to prevent death, great

21         bodily harm, or the commission of a forcible

22         felony; creating s. 776.032, F.S.; providing

23         immunity from criminal prosecution or civil

24         action for using deadly force; defining the

25         term "criminal prosecution"; authorizing a law

26         enforcement agency to investigate the use of

27         deadly force but prohibiting the agency from

28         arresting the person unless the agency

29         determines that there is probable cause that

30         the force the person used was unlawful;

31         providing for the award of attorney's fees,

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    Florida Senate - 2005                            CS for SB 436
    591-1458-05




 1         court costs, compensation for loss of income,

 2         and other expenses to a defendant in a civil

 3         suit who was immune from prosecution under this

 4         section; providing an effective date.

 5  

 6         WHEREAS, the Legislature finds that it is proper for

 7  law-abiding people to protect themselves, their families, and

 8  others from intruders and attackers without fear of

 9  prosecution or civil action for acting in defense of

10  themselves and others, and

11         WHEREAS, the castle doctrine is a common-law doctrine

12  of ancient origins which declares that a man's home is his

13  castle, and

14         WHEREAS, Section 8 of Article I of the State

15  Constitution guarantees the right of the people to bear arms

16  in defense of themselves, and

17         WHEREAS, the persons residing in or visiting this state

18  have a right to expect to remain unmolested within their homes

19  or vehicles, and

20         WHEREAS, no person or victim of crime should be

21  required to surrender his or her personal safety to a

22  criminal, nor should a person or victim be required to

23  needlessly retreat in the face of intrusion or attack, NOW,

24  THEREFORE,

25  

26  Be It Enacted by the Legislature of the State of Florida:

27  

28         Section 1.  Section 776.013, Florida Statutes, is

29  created to read:

30         776.013  Home protection; use of deadly force;

31  presumption of fear of death or bodily injury.--

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    Florida Senate - 2005                            CS for SB 436
    591-1458-05




 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 and forcibly entered a dwelling,

 7  residence, or occupied vehicle, or if that person had removed

 8  or attempted to remove another against that person's will from

 9  the dwelling, residence, or occupied vehicle; and

10         (b)  The person who uses defensive force knew or had

11  reason to believe that an unlawful or forcible entry or

12  unlawful or forcible act had occurred.

13         (2)  The presumption set forth in subsection (1) is

14  inapplicable if:

15         (a)  The person against whom the defensive force is

16  used is an owner, lessee, or titleholder of the dwelling,

17  residence, or vehicle and there is not an injunction for

18  protection from domestic violence against that person;

19         (b)  The person or persons sought to be removed is a

20  child or grandchild, or is otherwise in the lawful custody or

21  under the lawful guardianship of, the person against whom the

22  defensive force is used; or

23         (c)  The person who uses defensive force was engaged in

24  an unlawful activity or using the dwelling, residence, or

25  occupied vehicle to further an unlawful activity.

26         (3)  A person who is attacked in any other place where

27  he or she has a right to be has no duty to retreat and has the

28  right to stand his or her ground and meet force with force,

29  including deadly force, if it is reasonably necessary to do so

30  to prevent death or great bodily harm to himself or herself or

31  another or to prevent the commission of a forcible felony.

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    Florida Senate - 2005                            CS for SB 436
    591-1458-05




 1         (4)  A person who unlawfully and by force enters or

 2  attempts to enter a person's dwelling, residence, or occupied

 3  vehicle is presumed to be doing so with the intent to commit

 4  an unlawful act involving force or violence.

 5         (5)  As used in this section, the term:

 6         (a)  "Dwelling" means a building or conveyance of any

 7  kind, including any attached porch, whether the building or

 8  conveyance is temporary or permanent, mobile or immobile,

 9  which has a roof over it, including a tent, and is designed to

10  be occupied by people lodging therein at night.

11         (b)  "Residence" means a dwelling in which a person

12  resides either temporarily or permanently or is visiting as an

13  invited guest.

14         (c)  "Vehicle" means a conveyance of any kind, whether

15  or not motorized, which is designed to transport people or

16  property.

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18  The presumption provided for in this section does not apply in

19  circumstances in which a law enforcement officer, as defined

20  in s. 943.10, enters or attempts to enter a dwelling,

21  residence, or vehicle in the performance of his or her

22  official duties and the officer has identified himself or

23  herself in accordance with any applicable law or the person

24  using force knew or reasonably should have known that the

25  person entering or attempting to enter was a law enforcement

26  officer.

27         Section 2.  Section 776.012, Florida Statutes, is

28  amended to read:

29         776.012  Use of force in defense of person.--A person

30  is justified in using the use of force that is intended or

31  likely to cause death or bodily injury, except deadly force,

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    Florida Senate - 2005                            CS for SB 436
    591-1458-05




 1  against another when and to the extent that the person

 2  reasonably believes that such conduct is necessary to defend

 3  himself or herself or another against the such other's

 4  imminent use of unlawful force. However, the person is

 5  justified in the use of deadly force only if he or she

 6  reasonably believes that such force is necessary to prevent

 7  imminent death or great bodily harm to himself or herself or

 8  another or to prevent the imminent commission of a forcible

 9  felony. A person does not have a duty to retreat under the

10  circumstances described in s. 776.013.

11         Section 3.  Section 776.031, Florida Statutes, is

12  amended to read:

13         776.031  Use of force in defense of others.--A person

14  is justified in the use of force, except deadly force, against

15  another when and to the extent that the person reasonably

16  believes that such conduct is necessary to prevent or

17  terminate the such other's trespass on, or other tortious or

18  criminal interference with, either real property other than a

19  dwelling or personal property, lawfully in his or her

20  possession or in the possession of another who is a member of

21  his or her immediate family or household or of a person whose

22  property he or she has a legal duty to protect. However, the

23  person is justified in the use of deadly force only if he or

24  she reasonably believes that such force is necessary to

25  prevent the imminent commission of a forcible felony. A person

26  does not have a duty to retreat if the person is in a place

27  where he or she has a right to be.

28         Section 4.  Section 776.032, Florida Statutes, is

29  created to read:

30         776.032  Immunity from criminal prosecution and civil

31  action for justifiable use of force.--

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    Florida Senate - 2005                            CS for SB 436
    591-1458-05




 1         (1)  A person who uses force as described in s.

 2  776.012, s. 776.013, or s. 776.031 is justified in using such

 3  force and is immune from criminal prosecution and civil action

 4  for the use of such force, unless the person against whom

 5  force was used is a law enforcement officer, as defined in s.

 6  943.10, who was acting in the performance of his or her

 7  official duties and the officer identified himself or herself

 8  in accordance with any applicable law or the person using

 9  force knew or reasonably should have known that the person was

10  a law enforcement officer. As used in this subsection, the

11  term "criminal prosecution" includes wrongfully arresting,

12  detaining in custody, and charging or prosecuting the

13  defendant.

14         (2)  A law enforcement agency may use standard

15  procedures for investigating the use of force as described in

16  subsection (1), but the agency may not arrest the person for

17  using force unless it determines that there is probable cause

18  that the force that was used was unlawful.

19         (3)  The court shall award reasonable attorney's fees,

20  court costs, compensation for loss of income, and all expenses

21  incurred by the defendant in defense of any civil action

22  brought by a plaintiff if the court finds that the defendant

23  is immune from prosecution as provided in subsection (1).

24         Section 5.  This act shall take effect October 1, 2005.

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    Florida Senate - 2005                            CS for SB 436
    591-1458-05




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 436

 3                                 

 4  -    The CS re-instates language striken in the original bill
         that eliminated the justifiable use of force defense by
 5       the initial aggressor in certain circumstances.

 6  -    The CS eliminates the potential financial liability the
         original bill imposed upon law enforcement and state
 7       attorneys in cases where a person is arrested or
         prosecuted for use of force that is later found to be
 8       justifiable.

 9  -    The CS creates certain exceptions where the immunity from
         prosecution for justifiable use of force does not apply.
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