Florida Senate - 2014 SB 438
By Senator Altman
16-00223-14 2014438__
1 A bill to be entitled
2 An act relating to defense of life, home, or property;
3 creating s. 776.001, F.S.; providing legislative
4 findings and intent; defining terms; providing that
5 the defensive display of a weapon or firearm,
6 including the discharge of a firearm as a warning
7 shot, does not constitute the use of deadly force;
8 providing that a person is immune from prosecution if
9 he or she acts in defense of life, home, or property
10 from an unlawful activity or the threat of an unlawful
11 activity under certain circumstances; providing for
12 the justifiable defensive display of a weapon or
13 firearm in certain circumstances; providing
14 exceptions; providing that a person is not required to
15 defensively display a weapon or firearm or issue a
16 defensive warning before using force or deadly force
17 if the person is otherwise justified in using or
18 threatening to use force; amending s. 776.06, F.S.;
19 revising the definition of the term “deadly force” to
20 apply to a law enforcement officer or correctional
21 officer; creating s. 775.0878, F.S.; providing
22 legislative findings; requiring the sentencing court
23 to impose a downward departure from minimum sentence
24 requirements related to the possession or use of a
25 weapon or firearm by a person convicted of certain
26 offenses under specified circumstances; providing an
27 effective date.
28
29 WHEREAS, the intent of mandatory minimum sentencing laws is
30 to deter crime without discouraging the lawful defense of life,
31 home, or property, and
32 WHEREAS, the defensive display of a weapon or firearm in
33 self-defense does not constitute the use of deadly force and is
34 justified in defense of life, home, or property, and
35 WHEREAS, a person who acts to lawfully defend himself or
36 herself is, at that point, already a crime victim, NOW,
37 THEREFORE,
38
39 Be It Enacted by the Legislature of the State of Florida:
40
41 Section 1. Section 776.001, Florida Statutes, is created to
42 read:
43 776.001 Defense of life, home, or property.—
44 (1) The Legislature finds that it is unreasonable to
45 prosecute a person for acting in a lawfully defensive manner.
46 The Legislature further finds that the defensive display of a
47 weapon or firearm, including the discharge of a firearm as a
48 warning shot, is a lawfully valid method to prevent or to
49 terminate an unlawful activity. Therefore, it is the intent of
50 the Legislature that a person be immunized from prosecution if
51 he or she acts in such a manner as to protect life, home, or
52 property from an imminent or actual unlawful activity.
53 (2) As used in this section, the term:
54 (a) “Deadly force” has the same meaning as in s. 776.06.
55 (b) “Defensively displays a weapon or firearm” means to
56 overtly show or present a weapon or firearm in order to cause an
57 aggressor to believe that the person who overtly shows or
58 presents a weapon or firearm will, if necessary:
59 1. Use force or deadly force to lawfully defend from the
60 aggressor’s imminent or actual unlawful activity against the
61 life, home, or property of the person; or
62 2. Use force sufficient to effect a lawful arrest.
63
64 The term does not include the mere carrying of a weapon or
65 firearm in a manner that is not prohibited by law.
66 (c) “Defensive warning” or “defensively warned” means:
67 1. A verbal warning to place an aggressor on notice that
68 the person attacked actually possesses or has available access
69 to a weapon or firearm; or
70 2. Placement of the person’s hand on a weapon or firearm
71 while the weapon or firearm is contained in a pocket, purse,
72 holster, or other means of containment or transport.
73 (d) “Force” means:
74 1. Words or actions that reasonably convey the threat of
75 force, including, but not limited to, direct threats to cause
76 death or great bodily harm to another person; or
77 2. The application of physical force, including the use of
78 a weapon or firearm.
79 (e) “Unlawful activity” means:
80 1. Commission of a crime involving the use or threat of
81 violence;
82 2. Illegal distribution of a controlled substance; or
83 3. Use of a residence, commercial structure, or occupied
84 vehicle to commit a crime involving the use or threat of
85 violence or the illegal distribution of a controlled substance.
86 (3) A person acting in defense of life, home, or property
87 from an unlawful activity or the threat of an unlawful activity
88 is immune from prosecution if he or she:
89 (a) Defensively displayed a weapon or firearm if the person
90 reasonably believed that displaying the weapon or firearm was
91 necessary to prevent an unlawful activity or to terminate an
92 actual unlawful activity;
93 (b) Defensively warned the aggressor that he or she was
94 prepared to use force or, if necessary, deadly force by having
95 possession of or access to a weapon or firearm;
96 (c) Fired a warning shot if the person firing the shot
97 believed that discharging the weapon or firearm would prevent an
98 unlawful activity or terminate an actual unlawful activity;
99 (d) Used force in defense of life, home, or property if the
100 person reasonably believed that using force was necessary to
101 prevent an aggressor from committing an unlawful activity or to
102 terminate an ongoing unlawful activity; or
103 (e) Used deadly force if the person reasonably believed
104 that using deadly force was necessary to prevent death or great
105 bodily harm to himself or herself or to prevent an aggressor
106 from continuing an ongoing unlawful activity.
107 (4) This section does not require a person to defensively
108 display a weapon or firearm or to issue a defensive warning
109 before using force or deadly force if the person is otherwise
110 justified in using or threatening to use force.
111 (5) This section does not immunize a person from
112 prosecution if the person:
113 (a) Intentionally provoked another person into using or
114 attempting to use force or deadly force without cause; or
115 (b) Attempted to commit, committed, or escaped immediately
116 after the commission of, an unlawful activity.
117 Section 2. Section 776.06, Florida Statutes, is amended to
118 read:
119 776.06 Deadly force by law enforcement or correctional
120 officers.—
121 (1) As used in this section and as applied to a law
122 enforcement officer or correctional officer who acts during and
123 within the scope of his or her official duties, the term “deadly
124 force” means force that is likely to cause death or great bodily
125 harm and includes, but is not limited to:
126 (a) The firing of a firearm in the direction of the person
127 to be arrested, even though no intent exists to kill or inflict
128 great bodily harm; and
129 (b) The firing of a firearm at a vehicle in which the
130 person to be arrested is riding.
131 (2)(a) The term “deadly force” does not include the
132 discharge of a firearm by a law enforcement officer or
133 correctional officer during and within the scope of his or her
134 official duties which is loaded with a less-lethal munition. As
135 used in this subsection, the term “less-lethal munition” means a
136 projectile that is designed to stun, temporarily incapacitate,
137 or cause temporary discomfort to a person without penetrating
138 the person’s body.
139 (b) A law enforcement officer or a correctional officer is
140 not liable in any civil or criminal action arising out of the
141 use of any less-lethal munition in good faith during and within
142 the scope of his or her official duties.
143 Section 3. Section 775.0878, Florida Statutes, is created
144 to read:
145 775.0878 Exemption from minimum sentence requirement.—
146 (1) The Legislature finds that s. 775.087 does not apply to
147 a person who acts in self-defense or in defense of others and
148 that such person is not subject to sentencing under s. 775.087.
149 (2) Notwithstanding any other law, when sentencing a
150 defendant convicted of aggravated assault or aggravated battery,
151 the sentencing court shall impose a downward departure from the
152 mandatory minimum sentence prescribed in s. 775.087(2) if the
153 sentencing court finds the following by a preponderance of the
154 evidence:
155 (a) The defendant did not act in the furtherance of another
156 criminal act;
157 (b) The defendant established a prima facie case at trial,
158 during any proceeding, by stipulation, or at any stage of the
159 investigation that the act alleged was committed with defensive
160 intent; and
161 (c) The mandatory minimum sentence is not compelled for the
162 protection of the public.
163 (3) The state may appeal a downward departure from a
164 mandatory minimum sentence under this section.
165 Section 4. This act shall take effect upon becoming a law.