Florida Senate - 2013                             CS for SB 1000
       
       
       
       By the Committee on Criminal Justice; and Senator Gibson
       
       
       
       
       591-03343-13                                          20131000c1
    1                        A bill to be entitled                      
    2         An act relating to the purchase of firearms by
    3         mentally ill persons; amending s. 790.065, F.S.;
    4         providing conditions under which a person who has been
    5         voluntarily admitted to a mental institution for
    6         treatment and has undergone an involuntary examination
    7         under the Baker Act may be prohibited from purchasing
    8         a firearm; providing requirements for the examining
    9         physician; providing for judicial review of certain
   10         findings; providing specified notice requirements;
   11         providing form and contents of notice; providing
   12         requirements with respect to the filing of specified
   13         records with the court and presentation of such
   14         records to a judge or magistrate; providing lawful
   15         authority of a judge or magistrate to review specified
   16         records and order such records be submitted to the
   17         Department of Law Enforcement; providing a timeframe
   18         for submission of records to the department upon order
   19         by a judge or magistrate; providing an effective date.
   20  
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Paragraph (a) of subsection (2) of section
   24  790.065, Florida Statutes, is amended to read:
   25         790.065 Sale and delivery of firearms.—
   26         (2) Upon receipt of a request for a criminal history record
   27  check, the Department of Law Enforcement shall, during the
   28  licensee’s call or by return call, forthwith:
   29         (a) Review any records available to determine if the
   30  potential buyer or transferee:
   31         1. Has been convicted of a felony and is prohibited from
   32  receipt or possession of a firearm pursuant to s. 790.23;
   33         2. Has been convicted of a misdemeanor crime of domestic
   34  violence, and therefore is prohibited from purchasing a firearm;
   35         3. Has had adjudication of guilt withheld or imposition of
   36  sentence suspended on any felony or misdemeanor crime of
   37  domestic violence unless 3 years have elapsed since probation or
   38  any other conditions set by the court have been fulfilled or
   39  expunction has occurred; or
   40         4. Has been adjudicated mentally defective or has been
   41  committed to a mental institution by a court or as provided in
   42  sub-sub-subparagraph b. (II), and as a result is prohibited by
   43  state or federal law from purchasing a firearm.
   44         a. As used in this subparagraph, “adjudicated mentally
   45  defective” means a determination by a court that a person, as a
   46  result of marked subnormal intelligence, or mental illness,
   47  incompetency, condition, or disease, is a danger to himself or
   48  herself or to others or lacks the mental capacity to contract or
   49  manage his or her own affairs. The phrase includes a judicial
   50  finding of incapacity under s. 744.331(6)(a), an acquittal by
   51  reason of insanity of a person charged with a criminal offense,
   52  and a judicial finding that a criminal defendant is not
   53  competent to stand trial.
   54         b.  As used in this subparagraph, “committed to a mental
   55  institution” means:
   56         (I) Involuntary commitment, commitment for mental
   57  defectiveness or mental illness, and commitment for substance
   58  abuse. The phrase includes involuntary inpatient placement as
   59  defined in s. 394.467, involuntary outpatient placement as
   60  defined in s. 394.4655, involuntary assessment and stabilization
   61  under s. 397.6818, and involuntary substance abuse treatment
   62  under s. 397.6957, but does not include a person in a mental
   63  institution for observation or discharged from a mental
   64  institution based upon the initial review by the physician or a
   65  voluntary admission to a mental institution; or.
   66         (II)  Notwithstanding sub-sub-subparagraph (I), voluntary
   67  admission to a mental institution for outpatient or inpatient
   68  treatment of a person who had an involuntary examination under
   69  s. 394.463, where each of the following conditions have been
   70  met:
   71         (A) An examining physician found that the person is an
   72  imminent danger to himself or herself or others.
   73         (B) The examining physician certified that if the person
   74  did not agree to voluntary treatment, a petition for involuntary
   75  outpatient or inpatient treatment would have been filed under s.
   76  394.463(2)(i)4., or the examining physician certified that a
   77  petition was filed and the person subsequently agreed to
   78  voluntary treatment prior to a court hearing on the petition.
   79         (C) Before agreeing to voluntary treatment, the person
   80  received written notice of that finding and certification, and
   81  written notice that as a result of such finding, he or she may
   82  be prohibited from purchasing a firearm, and may not be eligible
   83  to apply for or retain a concealed weapon or firearms license
   84  under s. 790.06 and the person acknowledged such notice in
   85  writing, in substantially the following form:
   86  
   87  “I understand that the doctor who examined me believes I am a
   88  danger to myself or to others. I understand that if I do not
   89  agree to voluntary treatment, a petition will be filed in court
   90  to require me to receive involuntary treatment. I understand
   91  that if that petition is filed, I have the right to contest it.
   92  In the event a petition has been filed, I understand that I can
   93  subsequently agree to voluntary treatment prior to a court
   94  hearing. I understand that by agreeing to voluntary treatment in
   95  either of these situations, I may be prohibited from buying
   96  firearms and from applying for or retaining a concealed weapons
   97  or firearms license until I apply for and receive relief from
   98  that restriction under Florida law.”
   99         (D) A judge or a magistrate has, pursuant to sub-sub
  100  subparagraph c.(II), reviewed the record of the finding,
  101  certification, notice, and written acknowledgement classifying
  102  the person as an imminent danger to himself or herself or
  103  others, and ordered that such record be submitted to the
  104  department.
  105         c. In order to check for these conditions, the department
  106  shall compile and maintain an automated database of persons who
  107  are prohibited from purchasing a firearm based on court records
  108  of adjudications of mental defectiveness or commitments to
  109  mental institutions.
  110         (I) Except as provided in sub-sub-subparagraph (II), clerks
  111  of court shall submit these records to the department within 1
  112  month after the rendition of the adjudication or commitment.
  113  Reports shall be submitted in an automated format. The reports
  114  must, at a minimum, include the name, along with any known alias
  115  or former name, the sex, and the date of birth of the subject.
  116         (II) For persons committed to a mental institution pursuant
  117  to sub-sub-subparagraph b.(II), within 24 hours after the
  118  person’s agreement to voluntary admission, a record of the
  119  finding, certification, notice, and written acknowledgement must
  120  be filed by the administrator of the receiving or treatment
  121  facility, as defined in s. 394.455, with the clerk of the court
  122  for the county in which the involuntary examination under s.
  123  394.463 occurred. No fee shall be charged for the filing under
  124  this sub-sub-subparagraph. The clerk must present the records to
  125  a judge or magistrate within 24 hours after receipt of the
  126  records. A judge or magistrate is required and has the lawful
  127  authority to review the records ex parte and, if the judge or
  128  magistrate determines that the record supports the classifying
  129  of the person as an imminent danger to himself or herself or
  130  others, to order that the record be submitted to the department.
  131  If a judge or magistrate orders the submittal of the record to
  132  the department, the record must be submitted to the department
  133  within 24 hours.
  134         d. A person who has been adjudicated mentally defective or
  135  committed to a mental institution, as those terms are defined in
  136  this paragraph, may petition the circuit court that made the
  137  adjudication or commitment, or the court that ordered that the
  138  record be submitted to the department pursuant to sub-sub
  139  subparagraph c.(II), for relief from the firearm disabilities
  140  imposed by such adjudication or commitment. A copy of the
  141  petition shall be served on the state attorney for the county in
  142  which the person was adjudicated or committed. The state
  143  attorney may object to and present evidence relevant to the
  144  relief sought by the petition. The hearing on the petition may
  145  be open or closed as the petitioner may choose. The petitioner
  146  may present evidence and subpoena witnesses to appear at the
  147  hearing on the petition. The petitioner may confront and cross
  148  examine witnesses called by the state attorney. A record of the
  149  hearing shall be made by a certified court reporter or by court
  150  approved electronic means. The court shall make written findings
  151  of fact and conclusions of law on the issues before it and issue
  152  a final order. The court shall grant the relief requested in the
  153  petition if the court finds, based on the evidence presented
  154  with respect to the petitioner’s reputation, the petitioner’s
  155  mental health record and, if applicable, criminal history
  156  record, the circumstances surrounding the firearm disability,
  157  and any other evidence in the record, that the petitioner will
  158  not be likely to act in a manner that is dangerous to public
  159  safety and that granting the relief would not be contrary to the
  160  public interest. If the final order denies relief, the
  161  petitioner may not petition again for relief from firearm
  162  disabilities until 1 year after the date of the final order. The
  163  petitioner may seek judicial review of a final order denying
  164  relief in the district court of appeal having jurisdiction over
  165  the court that issued the order. The review shall be conducted
  166  de novo. Relief from a firearm disability granted under this
  167  sub-subparagraph has no effect on the loss of civil rights,
  168  including firearm rights, for any reason other than the
  169  particular adjudication of mental defectiveness or commitment to
  170  a mental institution from which relief is granted.
  171         e. Upon receipt of proper notice of relief from firearm
  172  disabilities granted under sub-subparagraph d., the department
  173  shall delete any mental health record of the person granted
  174  relief from the automated database of persons who are prohibited
  175  from purchasing a firearm based on court records of
  176  adjudications of mental defectiveness or commitments to mental
  177  institutions.
  178         f. The department is authorized to disclose data the
  179  collected pursuant to this subparagraph data to agencies of the
  180  Federal Government and other states for use exclusively in
  181  determining the lawfulness of a firearm sale or transfer. The
  182  department is also authorized to disclose this any collected
  183  data to the Department of Agriculture and Consumer Services for
  184  purposes of determining eligibility for issuance of a concealed
  185  weapons or concealed firearms license and for determining
  186  whether a basis exists for revoking or suspending a previously
  187  issued license pursuant to s. 790.06(10). When a potential buyer
  188  or transferee appeals a nonapproval based on these records, the
  189  clerks of court and mental institutions shall, upon request by
  190  the department, provide information to help determine whether
  191  the potential buyer or transferee is the same person as the
  192  subject of the record. Photographs and any other data that could
  193  confirm or negate identity must be made available to the
  194  department for such purposes, notwithstanding any other
  195  provision of state law to the contrary. Any such information
  196  that is made confidential or exempt from disclosure by law shall
  197  retain such confidential or exempt status when transferred to
  198  the department.
  199         Section 2. This act shall take effect July 1, 2013.