Florida Senate - 2013                                    SB 1446
       
       
       
       By Senator Altman
       
       
       
       
       16-00799A-13                                          20131446__
    1                        A bill to be entitled                      
    2         An act relating to defense of life, home, and
    3         property; creating s. 776.001, F.S.; providing
    4         legislative finding and intent; providing that the
    5         defensive display of a weapon or firearm, including
    6         the discharge of a firearm for the purpose of a
    7         warning shot, does not constitute the use of deadly
    8         force; providing immunity from prosecution for persons
    9         acting in defense of life, home, and property from
   10         violent attack or the threat of violent attack through
   11         certain displays of or uses of force; creating s.
   12         776.0011, F.S.; providing definitions; creating s.
   13         776.033, F.S.; providing for the justifiable defensive
   14         display of a firearm or weapon in certain
   15         circumstances; amending s. 776.06, F.S.; limiting a
   16         provision authorizing use of deadly force by law
   17         enforcement or correctional officers; creating s.
   18         775.0878, F.S.; providing an exemption from minimum
   19         sentence requirements related to use of a weapon or
   20         firearm for persons acting in self-defense or defense
   21         of others; authorizing a departure from minimum
   22         sentence requirements related to use of a weapon or
   23         firearm for persons convicted of certain offenses who
   24         meet specified requirements; providing an effective
   25         date.
   26  
   27         WHEREAS, the intent of mandatory minimum sentencing
   28  requirements is to deter crime without discouraging the lawful
   29  defense of life, home, and property, and
   30         WHEREAS, the defensive display of a means of self-defense
   31  does not constitute the application of lethal force and is
   32  justified in defense of life, home, and property, and
   33         WHEREAS, people acting to lawfully defend themselves are,
   34  at that point, already victims of crime, NOW, THEREFORE,
   35  
   36  Be It Enacted by the Legislature of the State of Florida:
   37  
   38         Section 1. Section 776.001, Florida Statutes, is created to
   39  read:
   40         776.001 Legislative findings and intent; defensive display
   41  of weapon or firearm; defense of life, home, and property.—
   42         (1) The Legislature finds that it is unreasonable to
   43  prosecute a person for acting in a defensive manner. The
   44  Legislature intends to clarify that the defensive display of a
   45  weapon or firearm, including the discharge of a firearm for the
   46  purpose of a warning shot, does not constitute the use of deadly
   47  force and is a valid method of preventing or terminating an
   48  imminent or actual violent criminal attack.
   49         (2) It is the intent of the Legislature to immunize a
   50  person from prosecution who acts in defense of life, home, and
   51  property from violent attack or the threat of violent attack by:
   52         (a) Defensively displaying a weapon or firearm, if the
   53  person reasonably believes that it is necessary to warn an
   54  attacker to prevent or terminate an imminent or actual violent
   55  criminal attack, including by the firing of a warning shot;
   56         (b) Using force, if the person reasonably believes that it
   57  is necessary to prevent or terminate an imminent or actual
   58  violent criminal attack; or
   59         (c) Using deadly force, if the person reasonably believes
   60  that it is necessary to prevent death or great bodily harm or to
   61  prevent or terminate the imminent or actual commission of a
   62  forcible felony.
   63         Section 2. Section 776.0011, Florida Statutes, is created
   64  to read:
   65         776.0011 Definitions.—As used in this chapter, the term:
   66         (1) “Defensive display” means the overt presentation of a
   67  weapon or the overt presentation, use, or discharge of a
   68  firearm, so long as the purpose of such action is limited to
   69  creating an apprehension that a person will, if necessary:
   70         (a) Use force in lawful defense of life, home, and
   71  property;
   72         (b) Lawfully defend against imminent or actual unlawful
   73  violence to a person; or
   74         (c) Use force to effect a lawful arrest.
   75         (2) “Unlawful activity” means any or all of the following:
   76         (a) Being engaged in the commission of a crime involving
   77  the use or threat of violence;
   78         (b) The illegal distribution of a controlled substance; or
   79         (c) Use of a dwelling, residence, or occupied vehicle to
   80  further activities described in paragraph (a) or paragraph (b).
   81         (3) “Use of deadly force” is not the lawful carrying or
   82  possession of a weapon or firearm, but means the application of
   83  any physical force described in subsection (4) which is
   84  reasonably known to be likely to cause death or great bodily
   85  harm. The term “use of deadly force” does not include a threat
   86  to cause death or great bodily harm, including, but not limited
   87  to, a defensive display, made when a person reasonably believes
   88  that such conduct is necessary to defend themselves or another
   89  against the actual or imminent use of unlawful force or to
   90  prevent or terminate the imminent or actual commission of a
   91  forcible felony.
   92         (4) “Use of force” is not the lawful carrying or possession
   93  of a weapon or firearm, but means any or all of the following
   94  directed at or upon another person or thing:
   95         (a) Words or actions that reasonably convey the threat of
   96  force, including, but not limited to, threats to cause death or
   97  great bodily harm to a person;
   98         (b) The presentation or display of a means of force that
   99  reasonably conveys the threat of force; or
  100         (c) The application of physical force, including
  101  application by a weapon or firearm, or through the actions of
  102  another.
  103         Section 3. Section 776.033, Florida Statutes, is created to
  104  read:
  105         776.033 Defensive display of a firearm or weapon.—
  106         (1)(a) For the purposes of this section, the term
  107  “defensive display of a firearm or weapon” includes:
  108         1. Verbally informing another person that the person
  109  possesses or has available a firearm or weapon.
  110         2. Exposing or displaying a firearm or weapon in a manner
  111  that a reasonable person would understand was meant to convey
  112  that it would be used, if necessary, to protect against the
  113  commission of a forcible felony, the use or attempted use of
  114  unlawful force or unlawful deadly force.
  115         3. Overtly placing the person’s hand on a firearm or weapon
  116  while the firearm or weapon is contained in a pocket, purse,
  117  holster, or other means of containment or transport.
  118         (b) For the purposes of this section, the term “defensive
  119  display of a firearm or weapon” does not include the mere
  120  carrying of a firearm or weapon in any manner not prohibited by
  121  law.
  122         (2) A person is justified in the defensive display of a
  123  firearm or weapon when the person reasonably believes that such
  124  conduct is necessary to defend themselves or another against the
  125  actual or imminent use of unlawful force or to prevent or
  126  terminate the imminent or actual commission of a forcible
  127  felony. A person does not have a duty to retreat if the person
  128  is in a place where he or she has a right to be.
  129         (3) This section does not apply to a person who:
  130         (a) Intentionally provokes another person to use or attempt
  131  to use unlawful force; or
  132         (b) Is attempting to commit, committing, or escaping
  133  immediately after the commission of a forcible felony.
  134         (4) This section does not require the defensive display of
  135  a firearm or weapon before the use of force or the threat of
  136  force by a person who is otherwise justified in the use or
  137  threatened use of force.
  138         Section 4. Subsection (1) of section 776.06, Florida
  139  Statutes, is amended to read:
  140         776.06 Deadly force by law enforcement or correctional
  141  officers.—
  142         (1) As applied to a law enforcement officer or correctional
  143  officer who acts during and within the scope of his or her
  144  official duties, the term “deadly force” means force that is
  145  likely to cause death or great bodily harm and includes, but is
  146  not limited to:
  147         (a) The firing of a firearm in the direction of the person
  148  to be arrested, even though no intent exists to kill or inflict
  149  great bodily harm; and
  150         (b) The firing of a firearm at a vehicle in which the
  151  person to be arrested is riding.
  152         Section 5. Section 775.0878, Florida Statutes, is created
  153  to read:
  154         775.0878 Exemption from minimum sentence requirement.—
  155         (1) The Legislature finds that s. 775.087 is not intended
  156  to apply to persons who are defending or attempting to defend
  157  themselves or others from violent criminal attack. The
  158  Legislature intends to establish that s. 775.087 does not apply
  159  to persons who act in self-defense or defense of others and that
  160  those persons are not subject to sentencing under s. 775.087.
  161         (2) Notwithstanding any other provision of law, when
  162  sentencing a defendant convicted of aggravated assault or
  163  aggravated battery, the sentencing court shall depart downward
  164  from the mandatory minimum sentence prescribed in s. 775.087(2),
  165  provided that the sentencing or trial court finds the following
  166  by a preponderance of the evidence:
  167         (a) The defendant did not act in the furtherance of another
  168  criminal act;
  169         (b) The defendant had established a prima facie case at
  170  trial, during any proceeding, by stipulation, or at any stage of
  171  the investigation that the act alleged was committed with
  172  defensive intent; and
  173         (c) The mandatory minimum sentence is not compelled for the
  174  protection of the public.
  175         (3) The state may appeal a departure from a mandatory
  176  minimum sentence under this section.
  177         Section 6. This act shall take effect upon becoming a law.