Senate Bill sb0436e1

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    CS for CS for SB 436                     First Engrossed (ntc)



  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 great bodily

  9         harm 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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    CS for CS for SB 436                     First Engrossed (ntc)



 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 person's home is his

13  or her 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 great bodily harm.--


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    CS for CS for SB 436                     First Engrossed (ntc)



 1         (1)  A person is presumed to have held a reasonable

 2  fear of imminent peril of death or great bodily harm to

 3  himself or herself or another when using defensive force that

 4  is intended or likely to cause death or great bodily harm to

 5  another if:

 6         (a)  The person against whom the defensive force was

 7  used was in the process of unlawfully and forcefully entering,

 8  or had unlawfully and forcibly entered, a dwelling, residence,

 9  or occupied vehicle, or if that person had removed or was

10  attempting to remove another against that person's will from

11  the dwelling, residence, or occupied vehicle; and

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

13  reason to believe that an unlawful and forcible entry or

14  unlawful and forcible act was occurring or had occurred.

15         (2)  The presumption set forth in subsection (1) does

16  not apply if:

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

18  used has the right to be in or is a lawful resident of the

19  dwelling, residence, or vehicle, such as an owner, lessee, or

20  titleholder, and there is not an injunction for protection

21  from domestic violence or a written pretrial supervision order

22  of no contact against that person; or

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

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

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

26  defensive force is used; or

27         (c)  The person who uses defensive force is engaged in

28  an unlawful activity or is using the dwelling, residence, or

29  occupied vehicle to further an unlawful activity; or

30         (d)  The person against whom the defensive force is

31  used is a law enforcement officer, as defined in s.


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    CS for CS for SB 436                     First Engrossed (ntc)



 1  943.10(14), who enters or attempts to enter a dwelling,

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

 3  official duties and the officer identified himself or herself

 4  in accordance with any applicable law or the person using

 5  force knew or reasonably should have known that the person

 6  entering or attempting to enter was a law enforcement officer.

 7         (3)  A person who is not engaged in an unlawful

 8  activity and who is attacked in any other place where he or

 9  she has a right to be has no duty to retreat and has the right

10  to stand his or her ground and meet force with force,

11  including deadly force if he or she reasonably believes it is

12  necessary to do so to prevent death or great bodily harm to

13  himself or herself or another or to prevent the commission of

14  a forcible felony.

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

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

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

18  an unlawful act involving force or violence.

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

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

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

22  conveyance is temporary or permanent, mobile or immobile,

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

24  be occupied by people lodging therein at night.

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

26  resides either temporarily or permanently or is visiting as an

27  invited guest.

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

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

30  property.

31  


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    CS for CS for SB 436                     First Engrossed (ntc)



 1         Section 2.  Section 776.012, Florida Statutes, is

 2  amended to read:

 3         776.012  Use of force in defense of person.--A person

 4  is justified in using the use of force, except deadly force,

 5  against another when and to the extent that the person

 6  reasonably believes that such conduct is necessary to defend

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

 8  imminent use of unlawful force. However, a the person is

 9  justified in the use of deadly force and does not have a duty

10  to retreat only if:

11         (a)  He or she reasonably believes that such force is

12  necessary to prevent imminent death or great bodily harm to

13  himself or herself or another or to prevent the imminent

14  commission of a forcible felony; or.

15         (b)  Under those circumstances permitted pursuant to s.

16  776.013.

17         Section 3.  Section 776.031, Florida Statutes, is

18  amended to read:

19         776.031  Use of force in defense of others.--A person

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

21  another when and to the extent that the person reasonably

22  believes that such conduct is necessary to prevent or

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

24  criminal interference with, either real property other than a

25  dwelling or personal property, lawfully in his or her

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

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

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

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

30  she reasonably believes that such force is necessary to

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


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    CS for CS for SB 436                     First Engrossed (ntc)



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

 2  where he or she has a right to be.

 3         Section 4.  Section 776.032, Florida Statutes, is

 4  created to read:

 5         776.032  Immunity from criminal prosecution and civil

 6  action for justifiable use of force.--

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

 8  776.012, s. 776.013, or s. 776.031 is justified in using such

 9  force and is immune from criminal prosecution and civil action

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

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

12  943.10(14), who was acting in the performance of his or her

13  official duties and the officer identified himself or herself

14  in accordance with any applicable law or the person using

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

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

17  term "criminal prosecution" includes arresting, detaining in

18  custody, and charging or prosecuting the defendant.

19         (2)  A law enforcement agency may use standard

20  procedures for investigating the use of force as described in

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

22  using force unless it determines that there is probable cause

23  that the force that was used was unlawful.

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

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

26  incurred by the defendant in defense of any civil action

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

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

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

30  

31  


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