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HB 0249

2005

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A bill to be entitled An act relating to the protection of persons and property; creating s. 776.013, F.S.; authorizing a person to use force, including deadly force, against an intruder or attacker in a dwelling, residence, or vehicle under specified circumstances; creating a presumption that a reasonable fear of death or bodily injury exists under certain circumstances; creating a presumption that a person acts with the intent to use force or violence under specified circumstances; providing definitions; amending ss. 776.012 and 776.031, F.S.; providing that a person is justified in using deadly force under certain circumstances; declaring that a person is not under a duty to retreat if the person is in a place where he or she has a right to be; creating s. 776.032, F.S.; providing immunity from criminal prosecution or civil action for using deadly force; authorizing a law enforcement agency to investigate the use of deadly force but prohibiting the agency from arresting the person unless the agency determines that probable cause exists showing that the force the person used was unlawful; directing the court to award attorney's fees, court costs, loss of income, and other expenses under specified circumstances; amending s. 776.041, F.S.; revising the circumstances that justify the use of force by an aggressor; providing an effective date.

WHEREAS, the Legislature finds that it is necessary to restore absolute rights of law-abiding people to protect Page 1 of 6 CODING: Words stricken are deletions; words underlined are additions.

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themselves, their families and others, and their property from intruders and attackers without fear of prosecution or civil action for defending that to which they are rightfully entitled, and WHEREAS, the castle doctrine is an ancient common-law doctrine, with origins going back at least to Roman law, which declares that a man's home is his castle and, thus, a person may use all manner of force, including deadly force, to protect it and its inhabitants from attack, and WHEREAS, Section 2 of Article I of the State Constitution guarantees basic rights to all natural persons, including the right to defend life and protect property, and WHEREAS, the residents of this state have a right to expect absolute safety within their own homes or vehicles, and WHEREAS, no person or victim of crime should be required to surrender his or her life, health, or property to a criminal, nor should a person or victim be required to retreat in the face of intrusion or attack, NOW, THEREFORE,

Be It Enacted by the Legislature of the State of Florida:

Section 1. to read: 776.013

Section 776.013, Florida Statutes, is created

Home protection; use of deadly force; presumption

of fear of death or bodily injury.-(1) A person is presumed to have held a reasonable fear of

imminent peril of death or bodily injury to himself or herself or another when using defensive force that is intended or likely Page 2 of 6 CODING: Words stricken are deletions; words underlined are additions.

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to cause death or bodily injury to another if: (a) The person against whom the defensive force was used

had unlawfully or forcibly entered or attempted to enter a dwelling, residence, or vehicle or if that person had removed or attempted to remove another from the dwelling, residence, or vehicle. (b) The person using defensive force knew or had reason to

believe that an unlawful or forcible entry or unlawful or forcible act had occurred.

A person does not have a duty to retreat from a dwelling, residence, vehicle, or place where the person has a right to be. (2) A person who unlawfully enters or attempts to enter a

person's dwelling, residence, or occupied vehicle is presumed to do so with the intent to commit an unlawful act involving force or violence. (3) (a) As used in this section, the term: "Dwelling" means a building or conveyance of any kind,

including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night, together with the curtilage thereof. (b) "Residence" means a dwelling in which a person resides

either temporarily or permanently or is visiting as an invited guest. (c) "Vehicle" means any conveyance of any kind, whether or

not motorized, which is designed to transport people or Page 3 of 6 CODING: Words stricken are deletions; words underlined are additions.

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property. Section 2. to read: 776.012 Use of force in defense of person.--A person is Section 776.012, Florida Statutes, is amended

justified in using the use of force that is intended or likely to cause death or bodily injury, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the such other's imminent use of unlawful force. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be. Section 3. to read: 776.031 Use of force in defense of others.--A person is Section 776.031, Florida Statutes, is amended

justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the such other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the Page 4 of 6 CODING: Words stricken are deletions; words underlined are additions.

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use of deadly force only if he or she reasonably believes that the such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be. Section 4. to read: 776.032 Immunity from criminal prosecution and civil Section 776.032, Florida Statutes, is created

action for justifiable use of force.-(1) A person who uses force as described in s. 776.012, s.

776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. (2) A law enforcement agency may use standard procedures

for investigating the use of the force, but the agency may not arrest the person for using force unless it determines that probable cause exists showing that the force that was used was unlawful. (3)(a) The court shall award attorney's fees, court costs,

compensation for loss of income, and all expenses incurred by the defendant in defense of the criminal prosecution if the court finds that the defendant is immune from prosecution as provided in subsection (1). (b) As used in this subsection, the term "criminal

prosecution" includes wrongfully arresting, detaining in custody, and charging or prosecuting the defendant. The law enforcement agency or state attorney that brought the criminal prosecution is liable to the defendant for the payment of fees and costs. Page 5 of 6 CODING: Words stricken are deletions; words underlined are additions.

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(4)

The court shall award attorney's fees, court costs,

compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1). The plaintiff and the plaintiff's attorney are jointly and severally liable to the defendant for the payment of fees and costs. Section 5. to read: 776.041 Use of force by aggressor.--The justification Section 776.041, Florida Statutes, is amended

described in the preceding sections of this chapter is not available to a person who: (1) Is attempting to commit, committing, or escaping after

the commission of, a forcible felony; or (2) Initially provokes the use of force against himself or

herself, unless: (a) Such force is so great that the person reasonably

believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or (b) in good faith, the person withdraws from physical

contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force. Section 6. This act shall take effect upon becoming a law.

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HOUSE AMENDMENT Bill No. HB 249 CS Amendment No. (for drafters use only) CHAMBER ACTION Senate . . . House

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Representative Gelber offered the following:

Substitute Amendment for Amendment (848887) Remove line 102 and insert:

prevent the commission of a forcible felony. This subsection does not apply if the person is charged with a first or second degree felony.

839703 3/30/2005 4:42:14 PM Page 1 of 1

HOUSE AMENDMENT Bill No. HB 249 CS Amendment No. (for drafters use only) CHAMBER ACTION Senate . . . House

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Representative Joyner offered the following:

Amendment Remove lines 96-107 and insert: (3) A person who unlawfully and by force enters or

attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to do so with the intent to commit an unlawful act involving force or violence. (4) As used in this section, the term:

848887 3/30/2005 1:37:29 PM Page 1 of 1