Florida Senate - 2020                                    SB 1540
       
       
        
       By Senator Simmons
       
       
       
       
       
       9-01522B-20                                           20201540__
    1                        A bill to be entitled                      
    2         An act relating to domestic violence; amending s.
    3         741.2901, F.S.; requiring a court to order a defendant
    4         arrested for an act of domestic violence not to
    5         possess firearms or ammunition as a condition of bail
    6         under certain circumstances; prohibiting an individual
    7         with an outstanding warrant issued for an act of
    8         domestic violence from possessing a firearm or any
    9         ammunition; amending s. 790.065, F.S.; requiring the
   10         Department of Law Enforcement, upon receipt of a
   11         request for a criminal history record check, to review
   12         available records to determine if a potential firearm
   13         buyer or transferee has been charged with a crime of
   14         domestic violence or has an outstanding warrant issued
   15         for an act of domestic violence and is prohibited from
   16         possessing firearms or ammunition; amending s. 901.02,
   17         F.S.; authorizing a court to issue an arrest warrant
   18         for an act of domestic violence; conforming a
   19         provision to changes made by the act; amending ss.
   20         493.6108, 790.06, and 943.0583, F.S.; conforming
   21         cross-references; providing an effective date.
   22          
   23  Be It Enacted by the Legislature of the State of Florida:
   24  
   25         Section 1. Subsection (3) of section 741.2901, Florida
   26  Statutes, is amended, and subsection (4) is added to that
   27  section, to read:
   28         741.2901 Domestic violence cases; prosecutors; legislative
   29  intent; investigation; duty of circuits; first appearance.—
   30         (3) Before Prior to a defendant’s first appearance in any
   31  charge of domestic violence as defined in s. 741.28, the State
   32  Attorney’s Office shall perform a thorough investigation of the
   33  defendant’s history, including, but not limited to,: prior
   34  arrests for domestic violence, prior arrests for nondomestic
   35  charges, prior injunctions for protection against domestic and
   36  repeat violence filed listing the defendant as respondent and
   37  noting history of other victims, and prior walk-in domestic
   38  complaints filed against the defendant. This information must
   39  shall be presented for consideration by the court at first
   40  appearance, when setting bond, and when passing sentence, for
   41  consideration by the court. If When a defendant is arrested for
   42  an act of domestic violence, the defendant must shall be held in
   43  custody until he or she is brought before the court for
   44  admittance to bail in accordance with chapter 903. In
   45  determining bail, the court shall consider the safety of the
   46  victim, the victim’s children, and any other person who may be
   47  in danger if the defendant is released. If a defendant is
   48  arrested for an act of domestic violence, the court must order
   49  the defendant not to possess a firearm or any ammunition as a
   50  condition of bail if the court finds that the safety of the
   51  victim, the victim’s children, or others will likely be more
   52  adequately assured.
   53         (4)Notwithstanding subsection (3), an individual with an
   54  outstanding warrant issued pursuant to s. 901.02(3) is
   55  prohibited from possessing a firearm or any ammunition.
   56         Section 2. Paragraph (a) of subsection (2) of section
   57  790.065, Florida Statutes, is amended to read:
   58         790.065 Sale and delivery of firearms.—
   59         (2) Upon receipt of a request for a criminal history record
   60  check, the Department of Law Enforcement shall, during the
   61  licensee’s call or by return call, forthwith:
   62         (a) Review any records available to determine if the
   63  potential buyer or transferee:
   64         1. Has been convicted of a felony and is prohibited from
   65  receipt or possession of a firearm pursuant to s. 790.23;
   66         2. Has been convicted of a misdemeanor crime of domestic
   67  violence, and therefore is prohibited from purchasing a firearm;
   68         3. Has had adjudication of guilt withheld or imposition of
   69  sentence suspended on any felony or misdemeanor crime of
   70  domestic violence unless 3 years have elapsed since probation or
   71  any other conditions set by the court have been fulfilled or
   72  expunction has occurred; or
   73         4. Has been arrested for an act of domestic violence and is
   74  prohibited from possessing a firearm or any ammunition under s.
   75  741.2901(3) or has an outstanding warrant issued pursuant to s.
   76  901.02(3) and is prohibited from possessing a firearm or any
   77  ammunition; or
   78         5. Has been adjudicated mentally defective or has been
   79  committed to a mental institution by a court or as provided in
   80  sub-sub-subparagraph b.(II), and as a result is prohibited by
   81  state or federal law from purchasing a firearm.
   82         a. As used in this subparagraph, “adjudicated mentally
   83  defective” means a determination by a court that a person, as a
   84  result of marked subnormal intelligence, or mental illness,
   85  incompetency, condition, or disease, is a danger to himself or
   86  herself or to others or lacks the mental capacity to contract or
   87  manage his or her own affairs. The phrase includes a judicial
   88  finding of incapacity under s. 744.331(6)(a), an acquittal by
   89  reason of insanity of a person charged with a criminal offense,
   90  and a judicial finding that a criminal defendant is not
   91  competent to stand trial.
   92         b. As used in this subparagraph, “committed to a mental
   93  institution” means:
   94         (I) Involuntary commitment, commitment for mental
   95  defectiveness or mental illness, and commitment for substance
   96  abuse. The phrase includes involuntary inpatient placement as
   97  defined in s. 394.467, involuntary outpatient placement as
   98  defined in s. 394.4655, involuntary assessment and stabilization
   99  under s. 397.6818, and involuntary substance abuse treatment
  100  under s. 397.6957, but does not include a person in a mental
  101  institution for observation or discharged from a mental
  102  institution based upon the initial review by the physician or a
  103  voluntary admission to a mental institution; or
  104         (II) Notwithstanding sub-sub-subparagraph (I), voluntary
  105  admission to a mental institution for outpatient or inpatient
  106  treatment of a person who had an involuntary examination under
  107  s. 394.463, where each of the following conditions have been
  108  met:
  109         (A) An examining physician found that the person is an
  110  imminent danger to himself or herself or others.
  111         (B) The examining physician certified that if the person
  112  did not agree to voluntary treatment, a petition for involuntary
  113  outpatient or inpatient treatment would have been filed under s.
  114  394.463(2)(g)4., or the examining physician certified that a
  115  petition was filed and the person subsequently agreed to
  116  voluntary treatment before prior to a court hearing on the
  117  petition.
  118         (C) Before agreeing to voluntary treatment, the person
  119  received written notice of that finding and certification, and
  120  written notice that as a result of such finding, he or she may
  121  be prohibited from purchasing a firearm, and may not be eligible
  122  to apply for or retain a concealed weapon or firearms license
  123  under s. 790.06 and the person acknowledged such notice in
  124  writing, in substantially the following form:
  125  
  126  “I understand that the doctor who examined me believes I am a
  127  danger to myself or to others. I understand that if I do not
  128  agree to voluntary treatment, a petition will be filed in court
  129  to require me to receive involuntary treatment. I understand
  130  that if that petition is filed, I have the right to contest it.
  131  In the event a petition has been filed, I understand that I can
  132  subsequently agree to voluntary treatment before prior to a
  133  court hearing. I understand that by agreeing to voluntary
  134  treatment in either of these situations, I may be prohibited
  135  from buying firearms and from applying for or retaining a
  136  concealed weapons or firearms license until I apply for and
  137  receive relief from that restriction under Florida law.”
  138  
  139         (D) A judge or a magistrate has, pursuant to sub-sub
  140  subparagraph c.(II), reviewed the record of the finding,
  141  certification, notice, and written acknowledgment classifying
  142  the person as an imminent danger to himself or herself or
  143  others, and ordered that such record be submitted to the
  144  department.
  145         c. In order to check for these conditions, the department
  146  shall compile and maintain an automated database of persons who
  147  are prohibited from purchasing a firearm based on court records
  148  of adjudications of mental defectiveness or commitments to
  149  mental institutions.
  150         (I) Except as provided in sub-sub-subparagraph (II), clerks
  151  of court shall submit these records to the department within 1
  152  month after the rendition of the adjudication or commitment.
  153  Reports shall be submitted in an automated format. The reports
  154  must, at a minimum, include the name, along with any known alias
  155  or former name, the sex, and the date of birth of the subject.
  156         (II) For persons committed to a mental institution pursuant
  157  to sub-sub-subparagraph b.(II), within 24 hours after the
  158  person’s agreement to voluntary admission, a record of the
  159  finding, certification, notice, and written acknowledgment must
  160  be filed by the administrator of the receiving or treatment
  161  facility, as defined in s. 394.455, with the clerk of the court
  162  for the county in which the involuntary examination under s.
  163  394.463 occurred. No fee shall be charged for the filing under
  164  this sub-sub-subparagraph. The clerk must present the records to
  165  a judge or magistrate within 24 hours after receipt of the
  166  records. A judge or magistrate is required and has the lawful
  167  authority to review the records ex parte and, if the judge or
  168  magistrate determines that the record supports the classifying
  169  of the person as an imminent danger to himself or herself or
  170  others, to order that the record be submitted to the department.
  171  If a judge or magistrate orders the submittal of the record to
  172  the department, the record must be submitted to the department
  173  within 24 hours.
  174         d. A person who has been adjudicated mentally defective or
  175  committed to a mental institution, as those terms are defined in
  176  this paragraph, may petition the court that made the
  177  adjudication or commitment, or the court that ordered that the
  178  record be submitted to the department pursuant to sub-sub
  179  subparagraph c.(II), for relief from the firearm disabilities
  180  imposed by such adjudication or commitment. A copy of the
  181  petition shall be served on the state attorney for the county in
  182  which the person was adjudicated or committed. The state
  183  attorney may object to and present evidence relevant to the
  184  relief sought by the petition. The hearing on the petition may
  185  be open or closed as the petitioner may choose. The petitioner
  186  may present evidence and subpoena witnesses to appear at the
  187  hearing on the petition. The petitioner may confront and cross
  188  examine witnesses called by the state attorney. A record of the
  189  hearing shall be made by a certified court reporter or by court
  190  approved electronic means. The court shall make written findings
  191  of fact and conclusions of law on the issues before it and issue
  192  a final order. The court shall grant the relief requested in the
  193  petition if the court finds, based on the evidence presented
  194  with respect to the petitioner’s reputation, the petitioner’s
  195  mental health record and, if applicable, criminal history
  196  record, the circumstances surrounding the firearm disability,
  197  and any other evidence in the record, that the petitioner will
  198  not be likely to act in a manner that is dangerous to public
  199  safety and that granting the relief would not be contrary to the
  200  public interest. If the final order denies relief, the
  201  petitioner may not petition again for relief from firearm
  202  disabilities until 1 year after the date of the final order. The
  203  petitioner may seek judicial review of a final order denying
  204  relief in the district court of appeal having jurisdiction over
  205  the court that issued the order. The review shall be conducted
  206  de novo. Relief from a firearm disability granted under this
  207  sub-subparagraph has no effect on the loss of civil rights,
  208  including firearm rights, for any reason other than the
  209  particular adjudication of mental defectiveness or commitment to
  210  a mental institution from which relief is granted.
  211         e. Upon receipt of proper notice of relief from firearm
  212  disabilities granted under sub-subparagraph d., the department
  213  shall delete any mental health record of the person granted
  214  relief from the automated database of persons who are prohibited
  215  from purchasing a firearm based on court records of
  216  adjudications of mental defectiveness or commitments to mental
  217  institutions.
  218         f. The department is authorized to disclose data collected
  219  pursuant to this subparagraph to agencies of the Federal
  220  Government and other states for use exclusively in determining
  221  the lawfulness of a firearm sale or transfer. The department is
  222  also authorized to disclose this data to the Department of
  223  Agriculture and Consumer Services for purposes of determining
  224  eligibility for issuance of a concealed weapons or concealed
  225  firearms license and for determining whether a basis exists for
  226  revoking or suspending a previously issued license pursuant to
  227  s. 790.06(10). When a potential buyer or transferee appeals a
  228  nonapproval based on these records, the clerks of court and
  229  mental institutions shall, upon request by the department,
  230  provide information to help determine whether the potential
  231  buyer or transferee is the same person as the subject of the
  232  record. Photographs and any other data that could confirm or
  233  negate identity must be made available to the department for
  234  such purposes, notwithstanding any other provision of state law
  235  to the contrary. Any such information that is made confidential
  236  or exempt from disclosure by law shall retain such confidential
  237  or exempt status when transferred to the department.
  238         Section 3. Present subsections (3) and (4) of section
  239  901.02, Florida Statutes, are redesignated as subsections (4)
  240  and (5), respectively, a new subsection (3) is added to that
  241  section, and present subsection (3) of that section is amended,
  242  to read:
  243         901.02 Issuance of arrest warrants.—
  244         (3) Notwithstanding subsection (2), the court may issue an
  245  arrest warrant for an act of domestic violence in the same
  246  manner as in subsection (1).
  247         (4)(3) A judge may electronically sign an arrest warrant if
  248  the requirements of subsection (1), or subsection (2), or
  249  subsection (3) are met and the judge, based on an examination of
  250  the complaint and proofs submitted, determines that the
  251  complaint:
  252         (a) Bears the affiant’s signature, or electronic signature
  253  if the complaint was submitted electronically.
  254         (b) Is supported by an oath or affirmation administered by
  255  the judge or other person authorized by law to administer oaths.
  256         (c) If submitted electronically, is submitted by reliable
  257  electronic means.
  258         Section 4. Subsection (3) of section 493.6108, Florida
  259  Statutes, is amended to read:
  260         493.6108 Investigation of applicants by Department of
  261  Agriculture and Consumer Services.—
  262         (3) The department must also investigate the mental history
  263  and current mental and emotional fitness of any Class “G” or
  264  Class “K” applicant and may deny a Class “G” or Class “K”
  265  license to anyone who has a history of mental illness or drug or
  266  alcohol abuse. Notwithstanding s. 790.065(2)(a)5.f. s.
  267  790.065(2)(a)4.f., the Department of Law Enforcement is
  268  authorized, for the limited purpose of determining eligibility
  269  of Class “G” or Class “K” applicants and licensees under this
  270  chapter, to provide the department with mental health and
  271  substance abuse data of individuals who are prohibited from
  272  purchasing a firearm.
  273         Section 5. Subsection (2) of section 790.06, Florida
  274  Statutes, is amended to read:
  275         790.06 License to carry concealed weapon or firearm.—
  276         (2) The Department of Agriculture and Consumer Services
  277  shall issue a license if the applicant:
  278         (a) Is a resident of the United States and a citizen of the
  279  United States or a permanent resident alien of the United
  280  States, as determined by the United States Bureau of Citizenship
  281  and Immigration Services, or is a consular security official of
  282  a foreign government that maintains diplomatic relations and
  283  treaties of commerce, friendship, and navigation with the United
  284  States and is certified as such by the foreign government and by
  285  the appropriate embassy in this country;
  286         (b) Is 21 years of age or older;
  287         (c) Does not suffer from a physical infirmity which
  288  prevents the safe handling of a weapon or firearm;
  289         (d) Is not ineligible to possess a firearm pursuant to s.
  290  790.23 by virtue of having been convicted of a felony;
  291         (e) Has not been:
  292         1. Found guilty of a crime under the provisions of chapter
  293  893 or similar laws of any other state relating to controlled
  294  substances within a 3-year period immediately preceding the date
  295  on which the application is submitted; or
  296         2. Committed for the abuse of a controlled substance under
  297  chapter 397 or under the provisions of former chapter 396 or
  298  similar laws of any other state. An applicant who has been
  299  granted relief from firearms disabilities pursuant to s.
  300  790.065(2)(a)5.d. s. 790.065(2)(a)4.d. or pursuant to the law of
  301  the state in which the commitment occurred is deemed not to be
  302  committed for the abuse of a controlled substance under this
  303  subparagraph;
  304         (f) Does not chronically and habitually use alcoholic
  305  beverages or other substances to the extent that his or her
  306  normal faculties are impaired. It shall be presumed that an
  307  applicant chronically and habitually uses alcoholic beverages or
  308  other substances to the extent that his or her normal faculties
  309  are impaired if the applicant has been convicted under s.
  310  790.151 or has been deemed a habitual offender under s.
  311  856.011(3), or has had two or more convictions under s. 316.193
  312  or similar laws of any other state, within the 3-year period
  313  immediately preceding the date on which the application is
  314  submitted;
  315         (g) Desires a legal means to carry a concealed weapon or
  316  firearm for lawful self-defense;
  317         (h) Demonstrates competence with a firearm by any one of
  318  the following:
  319         1. Completion of any hunter education or hunter safety
  320  course approved by the Fish and Wildlife Conservation Commission
  321  or a similar agency of another state;
  322         2. Completion of any National Rifle Association firearms
  323  safety or training course;
  324         3. Completion of any firearms safety or training course or
  325  class available to the general public offered by a law
  326  enforcement agency, junior college, college, or private or
  327  public institution or organization or firearms training school,
  328  using instructors certified by the National Rifle Association,
  329  Criminal Justice Standards and Training Commission, or the
  330  Department of Agriculture and Consumer Services;
  331         4. Completion of any law enforcement firearms safety or
  332  training course or class offered for security guards,
  333  investigators, special deputies, or any division or subdivision
  334  of a law enforcement agency or security enforcement;
  335         5. Presents evidence of equivalent experience with a
  336  firearm through participation in organized shooting competition
  337  or military service;
  338         6. Is licensed or has been licensed to carry a firearm in
  339  this state or a county or municipality of this state, unless
  340  such license has been revoked for cause; or
  341         7. Completion of any firearms training or safety course or
  342  class conducted by a state-certified or National Rifle
  343  Association certified firearms instructor;
  344  
  345  A photocopy of a certificate of completion of any of the courses
  346  or classes; an affidavit from the instructor, school, club,
  347  organization, or group that conducted or taught such course or
  348  class attesting to the completion of the course or class by the
  349  applicant; or a copy of any document that shows completion of
  350  the course or class or evidences participation in firearms
  351  competition shall constitute evidence of qualification under
  352  this paragraph. A person who conducts a course pursuant to
  353  subparagraph 2., subparagraph 3., or subparagraph 7., or who, as
  354  an instructor, attests to the completion of such courses, must
  355  maintain records certifying that he or she observed the student
  356  safely handle and discharge the firearm in his or her physical
  357  presence and that the discharge of the firearm included live
  358  fire using a firearm and ammunition as defined in s. 790.001;
  359         (i) Has not been adjudicated an incapacitated person under
  360  s. 744.331, or similar laws of any other state. An applicant who
  361  has been granted relief from firearms disabilities pursuant to
  362  s. 790.065(2)(a)5.d. s. 790.065(2)(a)4.d. or pursuant to the law
  363  of the state in which the adjudication occurred is deemed not to
  364  have been adjudicated an incapacitated person under this
  365  paragraph;
  366         (j) Has not been committed to a mental institution under
  367  chapter 394, or similar laws of any other state. An applicant
  368  who has been granted relief from firearms disabilities pursuant
  369  to s. 790.065(2)(a)5.d. s. 790.065(2)(a)4.d. or pursuant to the
  370  law of the state in which the commitment occurred is deemed not
  371  to have been committed in a mental institution under this
  372  paragraph;
  373         (k) Has not had adjudication of guilt withheld or
  374  imposition of sentence suspended on any felony unless 3 years
  375  have elapsed since probation or any other conditions set by the
  376  court have been fulfilled, or expunction has occurred;
  377         (l) Has not had adjudication of guilt withheld or
  378  imposition of sentence suspended on any misdemeanor crime of
  379  domestic violence unless 3 years have elapsed since probation or
  380  any other conditions set by the court have been fulfilled, or
  381  the record has been expunged;
  382         (m) Has not been issued an injunction that is currently in
  383  force and effect and that restrains the applicant from
  384  committing acts of domestic violence or acts of repeat violence;
  385  and
  386         (n) Is not prohibited from purchasing or possessing a
  387  firearm by any other provision of Florida or federal law.
  388         Section 6. Subsection (3) of section 943.0583, Florida
  389  Statutes, is amended to read:
  390         943.0583 Human trafficking victim expunction.—
  391         (3) A person who is a victim of human trafficking may
  392  petition for the expunction of a criminal history record
  393  resulting from the arrest or filing of charges for an offense
  394  committed or reported to have been committed while the person
  395  was a victim of human trafficking, which offense was committed
  396  or reported to have been committed as a part of the human
  397  trafficking scheme of which the person was a victim or at the
  398  direction of an operator of the scheme, including, but not
  399  limited to, violations under chapters 796 and 847, without
  400  regard to the disposition of the arrest or of any charges.
  401  However, this section does not apply to any offense listed in s.
  402  775.084(1)(b)1. Determination of the petition under this section
  403  should be by a preponderance of the evidence. A conviction
  404  expunged under this section is deemed to have been vacated due
  405  to a substantive defect in the underlying criminal proceedings.
  406  If a person is adjudicated not guilty by reason of insanity or
  407  is found to be incompetent to stand trial for any such charge,
  408  the expunction of the criminal history record may not prevent
  409  the entry of the judgment or finding in state and national
  410  databases for use in determining eligibility to purchase or
  411  possess a firearm or to carry a concealed firearm, as authorized
  412  in s. 790.065(2)(a)5.c. s. 790.065(2)(a)4.c. and 18 U.S.C. s.
  413  922(t), nor shall it prevent any governmental agency that is
  414  authorized by state or federal law to determine eligibility to
  415  purchase or possess a firearm or to carry a concealed firearm
  416  from accessing or using the record of the judgment or finding in
  417  the course of such agency’s official duties.
  418         Section 7. This act shall take effect July 1, 2020.