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.