Florida Senate - 2022                                     SB 402
       By Senator Polsky
       29-00268B-22                                           2022402__
    1                        A bill to be entitled                      
    2         An act relating to firearms; amending s. 790.065,
    3         F.S.; requiring the Department of Law Enforcement,
    4         within a specified timeframe, to enter into the
    5         Florida Crime Information Center database certain
    6         orders affecting a person’s ability to purchase a
    7         firearm; amending s. 790.401, F.S.; prohibiting
    8         attempted violations of the provisions of a firearms
    9         risk protection order; providing criminal penalties;
   10         providing an effective date.
   12  Be It Enacted by the Legislature of the State of Florida:
   14         Section 1. Paragraph (a) of subsection (2) of section
   15  790.065, Florida Statutes, is amended to read:
   16         790.065 Sale and delivery of firearms.—
   17         (2) Upon receipt of a request for a criminal history record
   18  check, the Department of Law Enforcement shall, during the
   19  licensee’s call or by return call, forthwith:
   20         (a) Review any records available to determine if the
   21  potential buyer or transferee:
   22         1. Has been convicted of a felony and is prohibited from
   23  receipt or possession of a firearm pursuant to s. 790.23;
   24         2. Has been convicted of a misdemeanor crime of domestic
   25  violence, and therefore is prohibited from purchasing a firearm;
   26         3. Has had adjudication of guilt withheld or imposition of
   27  sentence suspended on any felony or misdemeanor crime of
   28  domestic violence unless 3 years have elapsed since probation or
   29  any other conditions set by the court have been fulfilled or
   30  expunction has occurred; or
   31         4. Has been adjudicated mentally defective or has been
   32  committed to a mental institution by a court or as provided in
   33  sub-sub-subparagraph b.(II), and as a result is prohibited by
   34  state or federal law from purchasing a firearm.
   35         a. As used in this subparagraph, “adjudicated mentally
   36  defective” means a determination by a court that a person, as a
   37  result of marked subnormal intelligence, or mental illness,
   38  incompetency, condition, or disease, is a danger to himself or
   39  herself or to others or lacks the mental capacity to contract or
   40  manage his or her own affairs. The phrase includes a judicial
   41  finding of incapacity under s. 744.331(6)(a), an acquittal by
   42  reason of insanity of a person charged with a criminal offense,
   43  and a judicial finding that a criminal defendant is not
   44  competent to stand trial.
   45         b. As used in this subparagraph, “committed to a mental
   46  institution” means:
   47         (I) Involuntary commitment, commitment for mental
   48  defectiveness or mental illness, and commitment for substance
   49  abuse. The phrase includes involuntary inpatient placement as
   50  defined in s. 394.467, involuntary outpatient placement as
   51  defined in s. 394.4655, involuntary assessment and stabilization
   52  under s. 397.6818, and involuntary substance abuse treatment
   53  under s. 397.6957, but does not include a person in a mental
   54  institution for observation or discharged from a mental
   55  institution based upon the initial review by the physician or a
   56  voluntary admission to a mental institution; or
   57         (II) Notwithstanding sub-sub-subparagraph (I), voluntary
   58  admission to a mental institution for outpatient or inpatient
   59  treatment of a person who had an involuntary examination under
   60  s. 394.463, where each of the following conditions have been
   61  met:
   62         (A) An examining physician found that the person is an
   63  imminent danger to himself or herself or others.
   64         (B) The examining physician certified that if the person
   65  did not agree to voluntary treatment, a petition for involuntary
   66  outpatient or inpatient treatment would have been filed under s.
   67  394.463(2)(g)4., or the examining physician certified that a
   68  petition was filed and the person subsequently agreed to
   69  voluntary treatment prior to a court hearing on the petition.
   70         (C) Before agreeing to voluntary treatment, the person
   71  received written notice of that finding and certification, and
   72  written notice that as a result of such finding, he or she may
   73  be prohibited from purchasing a firearm, and may not be eligible
   74  to apply for or retain a concealed weapon or firearms license
   75  under s. 790.06 and the person acknowledged such notice in
   76  writing, in substantially the following form:
   78  “I understand that the doctor who examined me believes I am a
   79  danger to myself or to others. I understand that if I do not
   80  agree to voluntary treatment, a petition will be filed in court
   81  to require me to receive involuntary treatment. I understand
   82  that if that petition is filed, I have the right to contest it.
   83  In the event a petition has been filed, I understand that I can
   84  subsequently agree to voluntary treatment prior to a court
   85  hearing. I understand that by agreeing to voluntary treatment in
   86  either of these situations, I may be prohibited from buying
   87  firearms and from applying for or retaining a concealed weapons
   88  or firearms license until I apply for and receive relief from
   89  that restriction under Florida law.”
   91         (D) A judge or a magistrate has, pursuant to sub-sub
   92  subparagraph c.(II), reviewed the record of the finding,
   93  certification, notice, and written acknowledgment classifying
   94  the person as an imminent danger to himself or herself or
   95  others, and ordered that such record be submitted to the
   96  department.
   97         c. In order to check for these conditions, the department
   98  shall compile and maintain an automated database of persons who
   99  are prohibited from purchasing a firearm based on court records
  100  of adjudications of mental defectiveness or commitments to
  101  mental institutions.
  102         (I) Except as provided in sub-sub-subparagraph (II), clerks
  103  of court shall submit these records to the department within 1
  104  month after the rendition of the adjudication or commitment.
  105  Reports shall be submitted in an automated format. The reports
  106  must, at a minimum, include the name, along with any known alias
  107  or former name, the sex, and the date of birth of the subject.
  108         (II) For persons committed to a mental institution pursuant
  109  to sub-sub-subparagraph b.(II), within 24 hours after the
  110  person’s agreement to voluntary admission, a record of the
  111  finding, certification, notice, and written acknowledgment must
  112  be filed by the administrator of the receiving or treatment
  113  facility, as defined in s. 394.455, with the clerk of the court
  114  for the county in which the involuntary examination under s.
  115  394.463 occurred. No fee shall be charged for the filing under
  116  this sub-sub-subparagraph. The clerk must present the records to
  117  a judge or magistrate within 24 hours after receipt of the
  118  records. A judge or magistrate is required and has the lawful
  119  authority to review the records ex parte and, if the judge or
  120  magistrate determines that the record supports the classifying
  121  of the person as an imminent danger to himself or herself or
  122  others, to order that the record be submitted to the department.
  123  The department must enter the record into the Florida Crime
  124  Information Center (FCIC) database of persons prohibited from
  125  purchasing a firearm. If a judge or magistrate orders the
  126  submittal of the record to the department, the record must be
  127  submitted to the department and entered into the FCIC within 24
  128  hours.
  129         d. A person who has been adjudicated mentally defective or
  130  committed to a mental institution, as those terms are defined in
  131  this paragraph, may petition the court that made the
  132  adjudication or commitment, or the court that ordered that the
  133  record be submitted to the department pursuant to sub-sub
  134  subparagraph c.(II), for relief from the firearm disabilities
  135  imposed by such adjudication or commitment. A copy of the
  136  petition shall be served on the state attorney for the county in
  137  which the person was adjudicated or committed. The state
  138  attorney may object to and present evidence relevant to the
  139  relief sought by the petition. The hearing on the petition may
  140  be open or closed as the petitioner may choose. The petitioner
  141  may present evidence and subpoena witnesses to appear at the
  142  hearing on the petition. The petitioner may confront and cross
  143  examine witnesses called by the state attorney. A record of the
  144  hearing shall be made by a certified court reporter or by court
  145  approved electronic means. The court shall make written findings
  146  of fact and conclusions of law on the issues before it and issue
  147  a final order. The court shall grant the relief requested in the
  148  petition if the court finds, based on the evidence presented
  149  with respect to the petitioner’s reputation, the petitioner’s
  150  mental health record and, if applicable, criminal history
  151  record, the circumstances surrounding the firearm disability,
  152  and any other evidence in the record, that the petitioner will
  153  not be likely to act in a manner that is dangerous to public
  154  safety and that granting the relief would not be contrary to the
  155  public interest. If the final order denies relief, the
  156  petitioner may not petition again for relief from firearm
  157  disabilities until 1 year after the date of the final order. The
  158  petitioner may seek judicial review of a final order denying
  159  relief in the district court of appeal having jurisdiction over
  160  the court that issued the order. The review shall be conducted
  161  de novo. Relief from a firearm disability granted under this
  162  sub-subparagraph has no effect on the loss of civil rights,
  163  including firearm rights, for any reason other than the
  164  particular adjudication of mental defectiveness or commitment to
  165  a mental institution from which relief is granted.
  166         e. Upon receipt of proper notice of relief from firearm
  167  disabilities granted under sub-subparagraph d., the department
  168  shall delete any mental health record of the person granted
  169  relief from the automated database of persons who are prohibited
  170  from purchasing a firearm based on court records of
  171  adjudications of mental defectiveness or commitments to mental
  172  institutions, and shall delete the person’s record from the
  173  FCIC.
  174         f. The department is authorized to disclose data collected
  175  pursuant to this subparagraph to agencies of the Federal
  176  Government and other states for use exclusively in determining
  177  the lawfulness of a firearm sale or transfer. The department is
  178  also authorized to disclose this data to the Department of
  179  Agriculture and Consumer Services for purposes of determining
  180  eligibility for issuance of a concealed weapons or concealed
  181  firearms license and for determining whether a basis exists for
  182  revoking or suspending a previously issued license pursuant to
  183  s. 790.06(10). When a potential buyer or transferee appeals a
  184  nonapproval based on these records, the clerks of court and
  185  mental institutions shall, upon request by the department,
  186  provide information to help determine whether the potential
  187  buyer or transferee is the same person as the subject of the
  188  record. Photographs and any other data that could confirm or
  189  negate identity must be made available to the department for
  190  such purposes, notwithstanding any other provision of state law
  191  to the contrary. Any such information that is made confidential
  192  or exempt from disclosure by law shall retain such confidential
  193  or exempt status when transferred to the department.
  194         Section 2. Paragraph (b) of subsection (11) of section
  195  790.401, Florida Statutes, is amended to read:
  196         790.401 Risk protection orders.—
  197         (11) PENALTIES.—
  198         (b)1. A person who has in his or her custody or control a
  199  firearm or any ammunition or who purchases, possesses, or
  200  receives a firearm or any ammunition with knowledge that he or
  201  she is prohibited from doing so by an order issued under this
  202  section commits a felony of the third degree, punishable as
  203  provided in s. 775.082, s. 775.083, or s. 775.084.
  204         2.A person who attempts to commit a violation of
  205  subparagraph 1. commits a misdemeanor of the first degree,
  206  punishable as provided in s. 775.082 or s. 775.083.
  207         Section 3. This act shall take effect October 1, 2022.