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.