April 24, 2014
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Senate Bill 0436

Senate Bill sb0436

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2005                                   SB 436

    By Senator Peaden





    2-361A-05

  1                      A bill to be entitled

  2         An act relating to the protection of persons

  3         and property; creating s. 776.013, F.S.;

  4         authorizing a person to use force, including

  5         deadly force, against an intruder or attacker

  6         in a dwelling, residence, or vehicle under

  7         specified circumstances; creating a presumption

  8         that a reasonable fear of death or bodily

  9         injury exists under certain circumstances;

10         creating a presumption that a person acts with

11         the intent to use force or violence under

12         specified circumstances; providing definitions;

13         amending ss. 776.012 and 776.031, F.S.;

14         providing that a person is justified in using

15         deadly force under certain circumstances;

16         declaring that a person is not under a duty to

17         retreat if the person is in a place where he or

18         she has a right to be; creating s. 776.032,

19         F.S.; providing immunity from criminal

20         prosecution or civil action for using deadly

21         force; authorizing a law enforcement agency to

22         investigate the use of deadly force but

23         prohibiting the agency from arresting the

24         person unless the agency determines that

25         probable cause exists showing that the force

26         the person used was unlawful; directing the

27         court to award attorney's fees, court costs,

28         loss of income, and other expenses under

29         specified circumstances; amending s. 776.041,

30         F.S.; revising the circumstances that justify

31  

                                  1

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    Florida Senate - 2005                                   SB 436
    2-361A-05




 1         the use of force by an aggressor; providing an

 2         effective date.

 3  

 4         WHEREAS, the Legislature finds that it is necessary to

 5  restore absolute rights of law-abiding people to protect

 6  themselves, their families and others, and their property from

 7  intruders and attackers without fear of prosecution or civil

 8  action for defending that to which they are rightfully

 9  entitled, and

10         WHEREAS, the castle doctrine is an ancient common-law

11  doctrine, with origins going back at least to Roman law, which

12  declares that a man's home is his castle and, thus, a person

13  may use all manner of force, including deadly force, to

14  protect it and its inhabitants from attack, and

15         WHEREAS, Section 2 of Article I of the State

16  Constitution guarantees basic rights to all natural persons,

17  including the right to defend life and protect property, and

18         WHEREAS, the residents of this state have a right to

19  expect absolute safety within their own homes or vehicles, and

20         WHEREAS, no person or victim of crime should be

21  required to surrender his or her life, health, or property to

22  a criminal, nor should a person or victim be required to

23  retreat in the face of intrusion or attack, NOW, THEREFORE,

24  

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

26  

27         Section 1.  Section 776.013, Florida Statutes, is

28  created to read:

29         776.013  Home protection; use of deadly force;

30  presumption of fear of death or bodily injury.--

31  

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    Florida Senate - 2005                                   SB 436
    2-361A-05




 1         (1)  A person is presumed to have held a reasonable

 2  fear of imminent peril of death or bodily injury to himself or

 3  herself or another when using defensive force that is intended

 4  or likely to cause death or bodily injury to another if:

 5         (a)  The person against whom the defensive force was

 6  used had unlawfully or forcibly entered or attempted to enter

 7  a dwelling, residence, or vehicle or if that person had

 8  removed or attempted to remove another from the dwelling,

 9  residence, or vehicle; and

10         (b)  The person using defensive force knew or had

11  reason to believe that an unlawful or forcible entry or

12  unlawful or forcible act had occurred.

13  

14  A person does not have a duty to retreat from a dwelling,

15  residence, vehicle, or place where the person has a right to

16  be.

17         (2)  A person who unlawfully enters or attempts to

18  enter a person's dwelling, residence, or occupied vehicle is

19  presumed to be doing so with the intent to commit an unlawful

20  act involving force or violence.

21         (3)  As used in this section, the term:

22         (a)  "Dwelling" means a building or conveyance of any

23  kind, including any attached porch, whether the building or

24  conveyance is temporary or permanent, mobile or immobile,

25  which has a roof over it, including a tent, and is designed to

26  be occupied by people lodging therein at night, together with

27  the curtilage thereof.

28         (b)  "Residence" means a dwelling in which a person

29  resides either temporarily or permanently or is visiting as an

30  invited guest.

31  

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    Florida Senate - 2005                                   SB 436
    2-361A-05




 1         (c)  "Vehicle" means any conveyance of any kind,

 2  whether or not motorized, which is designed to transport

 3  people or property.

 4         Section 2.  Section 776.012, Florida Statutes, is

 5  amended to read:

 6         776.012  Use of force in defense of person.--A person

 7  is justified in using the use of force that is intended or

 8  likely to cause death or bodily injury, except deadly force,

 9  against another when and to the extent that the person

10  reasonably believes that such conduct is necessary to defend

11  himself or herself or another against the such other's

12  imminent use of unlawful force. However, the person is

13  justified in the use of deadly force only if he or she

14  reasonably believes that such force is necessary to prevent

15  imminent death or great bodily harm to himself or herself or

16  another or to prevent the imminent commission of a forcible

17  felony. A person does not have a duty to retreat if the person

18  is in a place where he or she has a right to be.

19         Section 3.  Section 776.031, Florida Statutes, is

20  amended to read:

21         776.031  Use of force in defense of others.--A person

22  is justified in the use of force, except deadly force, against

23  another when and to the extent that the person reasonably

24  believes that such conduct is necessary to prevent or

25  terminate the such other's trespass on, or other tortious or

26  criminal interference with, either real property other than a

27  dwelling or personal property, lawfully in his or her

28  possession or in the possession of another who is a member of

29  his or her immediate family or household or of a person whose

30  property he or she has a legal duty to protect. However, the

31  person is justified in the use of deadly force only if he or

                                  4

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    Florida Senate - 2005                                   SB 436
    2-361A-05




 1  she reasonably believes that the such force is necessary to

 2  prevent the imminent commission of a forcible felony. A person

 3  does not have a duty to retreat if the person is in a place

 4  where he or she has a right to be.

 5         Section 4.  Section 776.032, Florida Statutes, is

 6  created to read:

 7         776.032  Immunity from criminal prosecution and civil

 8  action for justifiable use of force.--

 9         (1)  A person who uses force as described in s.

10  776.012, s. 776.013, or s. 776.031 is justified in using such

11  force and is immune from criminal prosecution and civil action

12  for the use of such force.

13         (2)  A law enforcement agency may use standard

14  procedures for investigating the use of the force, but the

15  agency may not arrest the person for using force unless it

16  determines that probable cause exists showing that the force

17  that was used was unlawful.

18         (3)(a)  The court shall award attorney's fees, court

19  costs, compensation for loss of income, and all expenses

20  incurred by the defendant in defense of the criminal

21  prosecution if the court finds that the defendant is immune

22  from prosecution as provided in subsection (1).

23         (b)  As used in this subsection, the term "criminal

24  prosecution" includes wrongfully arresting, detaining in

25  custody, and charging or prosecuting the defendant. The law

26  enforcement agency or state attorney that brought the criminal

27  prosecution is liable to the defendant for the payment of fees

28  and costs.

29         (4)  The court shall award attorney's fees, court

30  costs, compensation for loss of income, and all expenses

31  incurred by the defendant in defense of any civil action

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    Florida Senate - 2005                                   SB 436
    2-361A-05




 1  brought by a plaintiff if the court finds that the defendant

 2  is immune from prosecution as provided in subsection (1). The

 3  plaintiff and the plaintiff's attorney are jointly and

 4  severally liable to the defendant for the payment of fees and

 5  costs.

 6         Section 5.  Section 776.041, Florida Statutes, is

 7  amended to read:

 8         776.041  Use of force by aggressor.--The justification

 9  described in the preceding sections of this chapter is not

10  available to a person who:

11         (1)  Is attempting to commit, committing, or escaping

12  after the commission of, a forcible felony; or

13         (2)  Initially provokes the use of force against

14  himself or herself, unless:

15         (a)  Such force is so great that the person reasonably

16  believes that he or she is in imminent danger of death or

17  great bodily harm and that he or she has exhausted every

18  reasonable means to escape such danger other than the use of

19  force which is likely to cause death or great bodily harm to

20  the assailant; or

21         (b)  in good faith, the person withdraws from physical

22  contact with the assailant and indicates clearly to the

23  assailant that he or she desires to withdraw and terminate the

24  use of force, but the assailant continues or resumes the use

25  of force.

26         Section 6.  This act shall take effect upon becoming a

27  law..

28  

29  

30  

31  

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    Florida Senate - 2005                                   SB 436
    2-361A-05




 1            *****************************************

 2                          SENATE SUMMARY

 3    Provides that a person may use force, including deadly
      force, against an intruder or attacker in a dwelling,
 4    residence, or vehicle under specified circumstances.
      Creates a presumption that a reasonable fear of death or
 5    bodily injury exists under certain circumstances. Creates
      a presumption that a person acts with the intent to use
 6    force or violence under specified circumstances. Provides
      that a person is justified in using deadly force.
 7    Declares 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
 8    be. Provides that a person is immune from criminal
      prosecution and civil action for using deadly force.
 9    Authorizes a law enforcement agency to investigate the
      use of deadly force but prohibits the agency from
10    arresting the person unless the agency determines that
      probable cause exists showing that the force that was
11    used was unlawful. Directs the court to award attorney's
      fees, court costs, loss of income, and other expenses
12    under specified circumstances. Revises the circumstances
      that justify the use of force by an aggressor.
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