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.