Bill Text: FL S1540 | 2020 | Regular Session | Introduced
Bill Title: Domestic Violence
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2020-03-14 - Died in Infrastructure and Security [S1540 Detail]
Download: Florida-2020-S1540-Introduced.html
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) BeforePrior toa 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 39shallbe presented for consideration by the court at first 40 appearance, when setting bond, and when passing sentence, for41consideration by the court. IfWhena defendant is arrested for 42 an act of domestic violence, the defendant mustshallbe 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;or73 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 beforeprior toa 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 beforeprior toa 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),orsubsection (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.267790.065(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.