Florida Senate - 2021                                     SB 186
       By Senator Berman
       31-00280-21                                            2021186__
    1                        A bill to be entitled                      
    2         An act relating to domestic violence; creating s.
    3         784.04875, F.S.; prohibiting certain acts of domestic
    4         violence and dating violence; providing criminal
    5         penalties; amending s. 790.065, F.S.; revising a
    6         prohibition on the sale or transfer of firearms to
    7         persons convicted of misdemeanor domestic violence
    8         offenses; amending s. 790.233, F.S.; defining the term
    9         “misdemeanor offense of domestic violence”;
   10         prohibiting persons convicted of a misdemeanor offense
   11         of domestic violence from possessing a firearm or
   12         ammunition; requiring persons convicted of misdemeanor
   13         offenses of domestic violence, upon conviction, to
   14         surrender all firearms and ammunition in their
   15         possession; requiring a court, upon convicting a
   16         defendant of such offense, to order the defendant to
   17         surrender to the local law enforcement agency having
   18         jurisdiction all firearms and ammunition and any
   19         license to carry a concealed weapon or firearm;
   20         providing requirements for law enforcement officers
   21         carrying out the court order; requiring a law
   22         enforcement officer to take possession of all firearms
   23         and ammunition owned by the defendant and any license
   24         to carry a concealed weapon or firearm; authorizing a
   25         law enforcement officer to seek a search warrant under
   26         certain circumstances; requiring the law enforcement
   27         officer taking possession of the firearms, ammunition,
   28         and license to issue a receipt to the defendant and to
   29         file the original with the court and a copy with his
   30         or her law enforcement agency; requiring the court to
   31         make a certain determination upon a sworn statement or
   32         testimony that the defendant did not comply with the
   33         required surrender of any firearms, ammunition, or
   34         license; requiring the court to issue a warrant if it
   35         finds that probable cause exists; providing for the
   36         return of surrendered firearms, ammunition, and
   37         licenses to their lawful owner under certain
   38         circumstances; requiring all law enforcement agencies
   39         to develop certain policies and procedures;
   40         authorizing a defendant to elect to transfer all
   41         firearms and ammunition that he or she owns to another
   42         person if specified requirements are met; providing
   43         criminal penalties; creating s. 790.234, F.S.;
   44         defining the term “domestic violence”; requiring a law
   45         enforcement officer to remove firearms from the scene
   46         of an alleged act of domestic violence under certain
   47         circumstances; providing requirements for the law
   48         enforcement officer removing such firearms;
   49         authorizing the owner of the firearms to retake
   50         possession within a specified timeframe; providing an
   51         exception; providing an effective date.
   53  Be It Enacted by the Legislature of the State of Florida:
   55         Section 1. Section 784.04875, Florida Statutes, is created
   56  to read:
   57         784.04875Domestic violence.—A person who commits any act
   58  constituting domestic violence, as defined in s. 741.28, or any
   59  crime the underlying factual basis of which has been found by a
   60  court to include an act of domestic violence, knowing that the
   61  victim is in the class of persons covered by that statute, or
   62  dating violence, as defined in s. 784.046, knowing that the
   63  victim is in the class of persons covered by that statute,
   64  commits a misdemeanor of the first degree, punishable as
   65  provided in s. 775.082 or s. 775.083.
   66         Section 2. Paragraph (a) of subsection (2) of section
   67  790.065, Florida Statutes, is amended to read:
   68         790.065 Sale and delivery of firearms.—
   69         (2) Upon receipt of a request for a criminal history record
   70  check, the Department of Law Enforcement shall, during the
   71  licensee’s call or by return call, forthwith:
   72         (a) Review any records available to determine if the
   73  potential buyer or transferee:
   74         1. Has been convicted of a felony and is prohibited from
   75  receipt or possession of a firearm pursuant to s. 790.23;
   76         2. Has been convicted of a misdemeanor crime of domestic
   77  violence, and, therefore, is prohibited from purchasing a
   78  firearm under 18 U.S.C. s. 922(d)(9) or s. 790.233;
   79         3. Has had adjudication of guilt withheld or imposition of
   80  sentence suspended on any felony or misdemeanor crime of
   81  domestic violence, unless 3 years have elapsed since probation
   82  or any other conditions set by the court have been fulfilled or
   83  expunction has occurred; or
   84         4. Has been adjudicated mentally defective or has been
   85  committed to a mental institution by a court or as provided in
   86  sub-sub-subparagraph b.(II), and as a result is prohibited by
   87  state or federal law from purchasing a firearm.
   88         a. As used in this subparagraph, “adjudicated mentally
   89  defective” means a determination by a court that a person, as a
   90  result of marked subnormal intelligence, or mental illness,
   91  incompetency, condition, or disease, is a danger to himself or
   92  herself or to others or lacks the mental capacity to contract or
   93  manage his or her own affairs. The phrase includes a judicial
   94  finding of incapacity under s. 744.331(6)(a), an acquittal by
   95  reason of insanity of a person charged with a criminal offense,
   96  and a judicial finding that a criminal defendant is not
   97  competent to stand trial.
   98         b. As used in this subparagraph, “committed to a mental
   99  institution” means:
  100         (I) Involuntary commitment, commitment for mental
  101  defectiveness or mental illness, and commitment for substance
  102  abuse. The phrase includes involuntary inpatient placement under
  103  as defined in s. 394.467, involuntary outpatient placement under
  104  as defined in s. 394.4655, involuntary assessment and
  105  stabilization under s. 397.6818, and involuntary substance abuse
  106  treatment under s. 397.6957, but does not include a person in a
  107  mental institution for observation or discharged from a mental
  108  institution based upon the initial review by the physician or a
  109  voluntary admission to a mental institution; or
  110         (II) Notwithstanding sub-sub-subparagraph (I), voluntary
  111  admission to a mental institution for outpatient or inpatient
  112  treatment of a person who had an involuntary examination under
  113  s. 394.463 if, where each of the following conditions have been
  114  met:
  115         (A) An examining physician found that the person is an
  116  imminent danger to himself or herself or others.
  117         (B) The examining physician certified that if the person
  118  did not agree to voluntary treatment, a petition for involuntary
  119  outpatient or inpatient treatment would have been filed under s.
  120  394.463(2)(g)4., or the examining physician certified that a
  121  petition was filed and the person subsequently agreed to
  122  voluntary treatment prior to a court hearing on the petition.
  123         (C) Before agreeing to voluntary treatment, the person
  124  received written notice of that finding and certification, and
  125  written notice that as a result of such finding, he or she may
  126  be prohibited from purchasing a firearm, and may not be eligible
  127  to apply for or retain a concealed weapon or firearms license
  128  under s. 790.06 and the person acknowledged such notice in
  129  writing, in substantially the following form:
  130         “I understand that the doctor who examined me believes I am
  131  a danger to myself or to others. I understand that if I do not
  132  agree to voluntary treatment, a petition will be filed in court
  133  to require me to receive involuntary treatment. I understand
  134  that if that petition is filed, I have the right to contest it.
  135  In the event a petition has been filed, I understand that I can
  136  subsequently agree to voluntary treatment prior to a court
  137  hearing. I understand that by agreeing to voluntary treatment in
  138  either of these situations, I may be prohibited from buying
  139  firearms and from applying for or retaining a concealed weapons
  140  or firearms license until I apply for and receive relief from
  141  that restriction under Florida law.”
  142         (D) A judge or a magistrate has, pursuant to sub-sub
  143  subparagraph c.(II), reviewed the record of the finding,
  144  certification, notice, and written acknowledgment classifying
  145  the person as an imminent danger to himself or herself or
  146  others, and ordered that such record be submitted to the
  147  department.
  148         c. In order to check for these conditions, the department
  149  shall compile and maintain an automated database of persons who
  150  are prohibited from purchasing a firearm based on court records
  151  of adjudications of mental defectiveness or commitments to
  152  mental institutions.
  153         (I) Except as provided in sub-sub-subparagraph (II), clerks
  154  of court shall submit these records to the department within 1
  155  month after the rendition of the adjudication or commitment.
  156  Reports shall be submitted in an automated format. The reports
  157  must, at a minimum, include the name, along with any known alias
  158  or former name, the sex, and the date of birth of the subject.
  159         (II) For persons committed to a mental institution pursuant
  160  to sub-sub-subparagraph b.(II), within 24 hours after the
  161  person’s agreement to voluntary admission, a record of the
  162  finding, certification, notice, and written acknowledgment must
  163  be filed by the administrator of the receiving or treatment
  164  facility, as defined in s. 394.455, with the clerk of the court
  165  for the county in which the involuntary examination under s.
  166  394.463 occurred. No fee shall be charged for the filing under
  167  this sub-sub-subparagraph. The clerk must present the records to
  168  a judge or magistrate within 24 hours after receipt of the
  169  records. A judge or magistrate is required and has the lawful
  170  authority to review the records ex parte and, if the judge or
  171  magistrate determines that the record supports the classifying
  172  of the person as an imminent danger to himself or herself or
  173  others, to order that the record be submitted to the department.
  174  If a judge or magistrate orders the submittal of the record to
  175  the department, the record must be submitted to the department
  176  within 24 hours.
  177         d. A person who has been adjudicated mentally defective or
  178  committed to a mental institution, as those terms are defined in
  179  this paragraph, may petition the court that made the
  180  adjudication or commitment, or the court that ordered that the
  181  record be submitted to the department pursuant to sub-sub
  182  subparagraph c.(II), for relief from the firearm disabilities
  183  imposed by such adjudication or commitment. A copy of the
  184  petition shall be served on the state attorney for the county in
  185  which the person was adjudicated or committed. The state
  186  attorney may object to and present evidence relevant to the
  187  relief sought by the petition. The hearing on the petition may
  188  be open or closed as the petitioner may choose. The petitioner
  189  may present evidence and subpoena witnesses to appear at the
  190  hearing on the petition. The petitioner may confront and cross
  191  examine witnesses called by the state attorney. A record of the
  192  hearing shall be made by a certified court reporter or by court
  193  approved electronic means. The court shall make written findings
  194  of fact and conclusions of law on the issues before it and issue
  195  a final order. The court shall grant the relief requested in the
  196  petition if the court finds, based on the evidence presented
  197  with respect to the petitioner’s reputation, the petitioner’s
  198  mental health record and, if applicable, criminal history
  199  record, the circumstances surrounding the firearm disability,
  200  and any other evidence in the record, that the petitioner will
  201  not be likely to act in a manner that is dangerous to public
  202  safety and that granting the relief would not be contrary to the
  203  public interest. If the final order denies relief, the
  204  petitioner may not petition again for relief from firearm
  205  disabilities until 1 year after the date of the final order. The
  206  petitioner may seek judicial review of a final order denying
  207  relief in the district court of appeal having jurisdiction over
  208  the court that issued the order. The review shall be conducted
  209  de novo. Relief from a firearm disability granted under this
  210  sub-subparagraph has no effect on the loss of civil rights,
  211  including firearm rights, for any reason other than the
  212  particular adjudication of mental defectiveness or commitment to
  213  a mental institution from which relief is granted.
  214         e. Upon receipt of proper notice of relief from firearm
  215  disabilities granted under sub-subparagraph d., the department
  216  shall delete any mental health record of the person granted
  217  relief from the automated database of persons who are prohibited
  218  from purchasing a firearm based on court records of
  219  adjudications of mental defectiveness or commitments to mental
  220  institutions.
  221         f. The department is authorized to disclose data collected
  222  pursuant to this subparagraph to agencies of the Federal
  223  Government and other states for use exclusively in determining
  224  the lawfulness of a firearm sale or transfer. The department is
  225  also authorized to disclose this data to the Department of
  226  Agriculture and Consumer Services for purposes of determining
  227  eligibility for issuance of a concealed weapons or concealed
  228  firearms license and for determining whether a basis exists for
  229  revoking or suspending a previously issued license pursuant to
  230  s. 790.06(10). When a potential buyer or transferee appeals a
  231  nonapproval based on these records, the clerks of court and
  232  mental institutions shall, upon request by the department,
  233  provide information to help determine whether the potential
  234  buyer or transferee is the same person as the subject of the
  235  record. Photographs and any other data that could confirm or
  236  negate identity must be made available to the department for
  237  such purposes, notwithstanding any other provision of state law
  238  to the contrary. Any such information that is made confidential
  239  or exempt from disclosure by law shall retain such confidential
  240  or exempt status when transferred to the department.
  241         Section 3. Section 790.233, Florida Statutes, is amended to
  242  read:
  243         790.233 Possession of firearm or ammunition prohibited when
  244  person is subject to an injunction against committing acts of
  245  domestic violence, stalking, or cyberstalking; misdemeanor
  246  domestic violence offenses; surrender of firearms and
  247  ammunition; penalties.—
  248         (2)As used in this section, the term “misdemeanor offense
  249  of domestic violence” means a misdemeanor conviction for a
  250  violation of s. 784.04875.
  251         (3)(1) A person may not have in his or her care, custody,
  252  possession, or control a any firearm or any ammunition if the
  253  person:
  254         (a) Has been issued a final injunction that is currently in
  255  force and effect, restraining that person from committing acts
  256  of domestic violence, as issued under s. 741.30, or from
  257  committing acts of stalking or cyberstalking, as issued under s.
  258  784.0485; or
  259         (b)Has been convicted of a misdemeanor offense of domestic
  260  violence.
  261         (4)A person convicted of a misdemeanor offense of domestic
  262  violence must, upon conviction, surrender all firearms and
  263  ammunition in his or her possession as provided in subsection
  264  (5).
  265         (5)(a)Upon convicting a defendant of a misdemeanor offense
  266  of domestic violence under s. 784.04875, the court shall order
  267  the defendant to surrender to the local law enforcement agency
  268  having jurisdiction over the defendant all firearms and
  269  ammunition owned by the defendant which are in the defendant’s
  270  custody, control, or possession, except as provided in
  271  subsection (6), and any license to carry a concealed weapon or
  272  firearm issued to the defendant under s. 790.06.
  273         (b)The law enforcement officer carrying out the court
  274  order shall request that the defendant immediately surrender all
  275  firearms and ammunition owned by the defendant which are in his
  276  or her custody, control, or possession and any license to carry
  277  a concealed weapon or firearm issued under s. 790.06. The law
  278  enforcement officer shall take possession of all such
  279  surrendered firearms and ammunition and any such license.
  280  Alternatively, if personal service by a law enforcement officer
  281  is not possible or is not required because the defendant was
  282  present at the court hearing when the judge entered the order,
  283  the defendant must surrender in a safe manner any such firearms
  284  and ammunition and any such license to the control of the local
  285  law enforcement agency immediately after being served with the
  286  order by service or immediately after the hearing at which the
  287  defendant was present, as applicable. Notwithstanding ss. 933.02
  288  and 933.18, if a law enforcement officer has probable cause to
  289  believe that the defendant has not surrendered all firearms or
  290  ammunition owned by the defendant which are in his or her
  291  custody, control, or possession, the law enforcement officer may
  292  seek a search warrant from a court of competent jurisdiction to
  293  conduct a search for such firearms or ammunition.
  294         (c)At the time of surrender, a law enforcement officer
  295  taking possession of any such firearm, ammunition, or license
  296  shall issue a receipt identifying all firearms surrendered, the
  297  quantity and type of any ammunition surrendered, and any license
  298  surrendered and shall provide a copy of the receipt to the
  299  defendant. Within 72 hours after service of the order, the law
  300  enforcement officer serving the order shall file the original
  301  receipt with the court and a copy of the receipt with his or her
  302  law enforcement agency.
  303         (d)Notwithstanding ss. 933.02 and 933.18, upon the sworn
  304  statement or testimony of any person alleging that the defendant
  305  has failed to surrender any such firearms, ammunition, or
  306  license as required by an order issued under this subsection,
  307  the court shall determine whether probable cause exists to
  308  support the allegation of failure to surrender. If the court
  309  finds that probable cause exists that the defendant has failed
  310  to comply with the order, the court must issue a warrant
  311  describing the firearms, ammunition, or license that the
  312  defendant failed to surrender, authorizing a search of the
  313  locations where such firearms, ammunition, or license are
  314  reasonably believed to be located, and requiring the seizure of
  315  any such firearms, ammunition, or license discovered pursuant to
  316  the search.
  317         (e)If a person other than the defendant claims title to
  318  any firearms or ammunition surrendered pursuant to this section
  319  and that person is determined by the law enforcement agency to
  320  be the lawful owner of the firearms or ammunition, the firearms
  321  or ammunition must be returned to that person if:
  322         1.The lawful owner agrees to store the firearms or
  323  ammunition in a manner that prevents the defendant from having
  324  access to or control of the firearms or ammunition; and
  325         2.The firearms or ammunition are not otherwise unlawfully
  326  possessed by the owner.
  327         (f)All law enforcement agencies shall develop policies and
  328  procedures regarding the acceptance, storage, and return of
  329  firearms, ammunition, and licenses required to be surrendered
  330  under this section.
  331         (6)A defendant may elect to transfer all firearms and
  332  ammunition that he or she owns which have been surrendered to or
  333  seized by a local law enforcement agency pursuant to subsection
  334  (5) to another person who is willing to receive the defendant’s
  335  firearms and ammunition. The law enforcement agency must allow
  336  such a transfer only if it is determined that the designated
  337  recipient:
  338         (a)Is eligible to own or possess a firearm and ammunition
  339  under federal and state law, after confirmation through a
  340  background check;
  341         (b)Agrees to store the firearms and ammunition in a manner
  342  that prevents the defendant from having access to or control of
  343  the firearms and ammunition; and
  344         (c)Agrees not to transfer the firearms or ammunition back
  345  to the defendant.
  346         (7)(2) A person who violates this section subsection (1)
  347  commits a misdemeanor of the first degree, punishable as
  348  provided in s. 775.082 or s. 775.083.
  349         (1)(3) It is the intent of the Legislature that the
  350  disabilities regarding possession of firearms and ammunition are
  351  consistent with federal law. Accordingly, this section does not
  352  apply to a state or local officer as defined in s. 943.10(14),
  353  holding an active certification, who receives or possesses a
  354  firearm or ammunition for use in performing official duties on
  355  behalf of the officer’s employing agency, unless otherwise
  356  prohibited by the employing agency.
  357         Section 4. Section 790.234, Florida Statutes, is created to
  358  read:
  359         790.234Domestic violence; temporary custody of firearms.—
  360         (1)As used in this section, the term “domestic violence”
  361  means an act constituting domestic violence, as defined in s.
  362  741.28, and includes acts of domestic violence between dating
  363  partners as provided in s. 784.046(1)(d).
  364         (2)When at the scene of an alleged act of domestic
  365  violence, a law enforcement officer must remove a firearm from
  366  the scene if:
  367         (a)The law enforcement officer has probable cause to
  368  believe that an act of domestic violence has occurred; and
  369         (b)The firearm is in plain view or is discovered during a
  370  consensual or other lawful search.
  371         (3)If a firearm is removed from the scene under subsection
  372  (2), the law enforcement officer must:
  373         (a)Provide to the owner a receipt identifying all firearms
  374  seized and information concerning the process for retaking
  375  possession of the firearm; and
  376         (b)Provide for the safe storage of the firearm during the
  377  pendency of any proceeding related to the alleged act of
  378  domestic violence.
  379         (4)Within 14 days after the conclusion of a proceeding on
  380  the alleged act of domestic violence or dating violence, the
  381  owner of the firearm may retake possession of the firearm unless
  382  ordered to surrender the firearm pursuant to s. 790.233.
  383         Section 5. This act shall take effect October 1, 2021.