Bill Summary – FastDemocracy

       Florida Senate - 2021                                     SB 186
       
       
        
       By Senator Berman
       
       
       
       
       
       31-00280-21                                            2021186__
                      A bill to be entitled                      
       An act relating to domestic violence; creating s.
       784.04875, F.S.; prohibiting certain acts of domestic
       violence and dating violence; providing criminal
       penalties; amending s. 790.065, F.S.; revising a
       prohibition on the sale or transfer of firearms to
       persons convicted of misdemeanor domestic violence
       offenses; amending s. 790.233, F.S.; defining the term
       âmisdemeanor offense of domestic violenceâ;
       prohibiting persons convicted of a misdemeanor offense
       of domestic violence from possessing a firearm or
       ammunition; requiring persons convicted of misdemeanor
       offenses of domestic violence, upon conviction, to
       surrender all firearms and ammunition in their
       possession; requiring a court, upon convicting a
       defendant of such offense, to order the defendant to
       surrender to the local law enforcement agency having
       jurisdiction all firearms and ammunition and any
       license to carry a concealed weapon or firearm;
       providing requirements for law enforcement officers
       carrying out the court order; requiring a law
       enforcement officer to take possession of all firearms
       and ammunition owned by the defendant and any license
       to carry a concealed weapon or firearm; authorizing a
       law enforcement officer to seek a search warrant under
       certain circumstances; requiring the law enforcement
       officer taking possession of the firearms, ammunition,
       and license to issue a receipt to the defendant and to
       file the original with the court and a copy with his
       or her law enforcement agency; requiring the court to
       make a certain determination upon a sworn statement or
       testimony that the defendant did not comply with the
       required surrender of any firearms, ammunition, or
       license; requiring the court to issue a warrant if it
       finds that probable cause exists; providing for the
       return of surrendered firearms, ammunition, and
       licenses to their lawful owner under certain
       circumstances; requiring all law enforcement agencies
       to develop certain policies and procedures;
       authorizing a defendant to elect to transfer all
       firearms and ammunition that he or she owns to another
       person if specified requirements are met; providing
       criminal penalties; creating s. 790.234, F.S.;
       defining the term âdomestic violenceâ; requiring a law
       enforcement officer to remove firearms from the scene
       of an alleged act of domestic violence under certain
       circumstances; providing requirements for the law
       enforcement officer removing such firearms;
       authorizing the owner of the firearms to retake
       possession within a specified timeframe; providing an
       exception; providing an effective date.
        
Be It Enacted by the Legislature of the State of Florida:

       Section 1.âSection 784.04875, Florida Statutes, is created
to read:
       784.04875âDomestic violence.âA person who commits any act
constituting domestic violence, as defined in s. 741.28, or any
crime the underlying factual basis of which has been found by a
court to include an act of domestic violence, knowing that the
victim is in the class of persons covered by that statute, or
dating violence, as defined in s. 784.046, knowing that the
victim is in the class of persons covered by that statute,
commits a misdemeanor of the first degree, punishable as
provided in s. 775.082 or s. 775.083.
       Section 2.âParagraph (a) of subsection (2) of section
790.065, Florida Statutes, is amended to read:
       790.065âSale and delivery of firearms.â
       (2)âUpon receipt of a request for a criminal history record
check, the Department of Law Enforcement shall, during the
licenseeâs call or by return call, forthwith:
       (a)âReview any records available to determine if the
potential buyer or transferee:
       1.âHas been convicted of a felony and is prohibited from
receipt or possession of a firearm pursuant to s. 790.23;
       2.âHas been convicted of a misdemeanor crime of domestic
violence, and, therefore, is prohibited from purchasing a
firearm under 18 U.S.C. s. 922(d)(9) or s. 790.233;
       3.âHas had adjudication of guilt withheld or imposition of
sentence suspended on any felony or misdemeanor crime of
domestic violence, unless 3 years have elapsed since probation
or any other conditions set by the court have been fulfilled or
expunction has occurred; or
       4.âHas been adjudicated mentally defective or has been
committed to a mental institution by a court or as provided in
sub-sub-subparagraph b.(II), and as a result is prohibited by
state or federal law from purchasing a firearm.
       a.âAs used in this subparagraph, âadjudicated mentally
defectiveâ means a determination by a court that a person, as a
result of marked subnormal intelligence, or mental illness,
incompetency, condition, or disease, is a danger to himself or
herself or to others or lacks the mental capacity to contract or
manage his or her own affairs. The phrase includes a judicial
finding of incapacity under s. 744.331(6)(a), an acquittal by
reason of insanity of a person charged with a criminal offense,
and a judicial finding that a criminal defendant is not
competent to stand trial.
       b.âAs used in this subparagraph, âcommitted to a mental
institutionâ means:
       (I)âInvoluntary commitment, commitment for mental
defectiveness or mental illness, and commitment for substance
abuse. The phrase includes involuntary inpatient placement under
as defined in s. 394.467, involuntary outpatient placement under
as defined in s. 394.4655, involuntary assessment and
stabilization under s. 397.6818, and involuntary substance abuse
treatment under s. 397.6957, but does not include a person in a
mental institution for observation or discharged from a mental
institution based upon the initial review by the physician or a
voluntary admission to a mental institution; or
       (II)âNotwithstanding sub-sub-subparagraph (I), voluntary
admission to a mental institution for outpatient or inpatient
treatment of a person who had an involuntary examination under
s. 394.463 if, where each of the following conditions have been
met:
       (A)âAn examining physician found that the person is an
imminent danger to himself or herself or others.
       (B)âThe examining physician certified that if the person
did not agree to voluntary treatment, a petition for involuntary
outpatient or inpatient treatment would have been filed under s.
394.463(2)(g)4., or the examining physician certified that a
petition was filed and the person subsequently agreed to
voluntary treatment prior to a court hearing on the petition.
       (C)âBefore agreeing to voluntary treatment, the person
received written notice of that finding and certification, and
written notice that as a result of such finding, he or she may
be prohibited from purchasing a firearm, and may not be eligible
to apply for or retain a concealed weapon or firearms license
under s. 790.06 and the person acknowledged such notice in
writing, in substantially the following form:
       âI understand that the doctor who examined me believes I am
a danger to myself or to others. I understand that if I do not
agree to voluntary treatment, a petition will be filed in court
to require me to receive involuntary treatment. I understand
that if that petition is filed, I have the right to contest it.
In the event a petition has been filed, I understand that I can
subsequently agree to voluntary treatment prior to a court
hearing. I understand that by agreeing to voluntary treatment in
either of these situations, I may be prohibited from buying
firearms and from applying for or retaining a concealed weapons
or firearms license until I apply for and receive relief from
that restriction under Florida law.â
       (D)âA judge or a magistrate has, pursuant to sub-sub
subparagraph c.(II), reviewed the record of the finding,
certification, notice, and written acknowledgment classifying
the person as an imminent danger to himself or herself or
others, and ordered that such record be submitted to the
department.
       c.âIn order to check for these conditions, the department
shall compile and maintain an automated database of persons who
are prohibited from purchasing a firearm based on court records
of adjudications of mental defectiveness or commitments to
mental institutions.
       (I)âExcept as provided in sub-sub-subparagraph (II), clerks
of court shall submit these records to the department within 1
month after the rendition of the adjudication or commitment.
Reports shall be submitted in an automated format. The reports
must, at a minimum, include the name, along with any known alias
or former name, the sex, and the date of birth of the subject.
       (II)âFor persons committed to a mental institution pursuant
to sub-sub-subparagraph b.(II), within 24 hours after the
personâs agreement to voluntary admission, a record of the
finding, certification, notice, and written acknowledgment must
be filed by the administrator of the receiving or treatment
facility, as defined in s. 394.455, with the clerk of the court
for the county in which the involuntary examination under s.
394.463 occurred. No fee shall be charged for the filing under
this sub-sub-subparagraph. The clerk must present the records to
a judge or magistrate within 24 hours after receipt of the
records. A judge or magistrate is required and has the lawful
authority to review the records ex parte and, if the judge or
magistrate determines that the record supports the classifying
of the person as an imminent danger to himself or herself or
others, to order that the record be submitted to the department.
If a judge or magistrate orders the submittal of the record to
the department, the record must be submitted to the department
within 24 hours.
       d.âA person who has been adjudicated mentally defective or
committed to a mental institution, as those terms are defined in
this paragraph, may petition the court that made the
adjudication or commitment, or the court that ordered that the
record be submitted to the department pursuant to sub-sub
subparagraph c.(II), for relief from the firearm disabilities
imposed by such adjudication or commitment. A copy of the
petition shall be served on the state attorney for the county in
which the person was adjudicated or committed. The state
attorney may object to and present evidence relevant to the
relief sought by the petition. The hearing on the petition may
be open or closed as the petitioner may choose. The petitioner
may present evidence and subpoena witnesses to appear at the
hearing on the petition. The petitioner may confront and cross
examine witnesses called by the state attorney. A record of the
hearing shall be made by a certified court reporter or by court
approved electronic means. The court shall make written findings
of fact and conclusions of law on the issues before it and issue
a final order. The court shall grant the relief requested in the
petition if the court finds, based on the evidence presented
with respect to the petitionerâs reputation, the petitionerâs
mental health record and, if applicable, criminal history
record, the circumstances surrounding the firearm disability,
and any other evidence in the record, that the petitioner will
not be likely to act in a manner that is dangerous to public
safety and that granting the relief would not be contrary to the
public interest. If the final order denies relief, the
petitioner may not petition again for relief from firearm
disabilities until 1 year after the date of the final order. The
petitioner may seek judicial review of a final order denying
relief in the district court of appeal having jurisdiction over
the court that issued the order. The review shall be conducted
de novo. Relief from a firearm disability granted under this
sub-subparagraph has no effect on the loss of civil rights,
including firearm rights, for any reason other than the
particular adjudication of mental defectiveness or commitment to
a mental institution from which relief is granted.
       e.âUpon receipt of proper notice of relief from firearm
disabilities granted under sub-subparagraph d., the department
shall delete any mental health record of the person granted
relief from the automated database of persons who are prohibited
from purchasing a firearm based on court records of
adjudications of mental defectiveness or commitments to mental
institutions.
       f.âThe department is authorized to disclose data collected
pursuant to this subparagraph to agencies of the Federal
Government and other states for use exclusively in determining
the lawfulness of a firearm sale or transfer. The department is
also authorized to disclose this data to the Department of
Agriculture and Consumer Services for purposes of determining
eligibility for issuance of a concealed weapons or concealed
firearms license and for determining whether a basis exists for
revoking or suspending a previously issued license pursuant to
s. 790.06(10). When a potential buyer or transferee appeals a
nonapproval based on these records, the clerks of court and
mental institutions shall, upon request by the department,
provide information to help determine whether the potential
buyer or transferee is the same person as the subject of the
record. Photographs and any other data that could confirm or
negate identity must be made available to the department for
such purposes, notwithstanding any other provision of state law
to the contrary. Any such information that is made confidential
or exempt from disclosure by law shall retain such confidential
or exempt status when transferred to the department.
       Section 3.âSection 790.233, Florida Statutes, is amended to
read:
       790.233âPossession of firearm or ammunition prohibited when
person is subject to an injunction against committing acts of
domestic violence, stalking, or cyberstalking; misdemeanor
domestic violence offenses; surrender of firearms and
ammunition; penalties.â
       (2)âAs used in this section, the term âmisdemeanor offense
of domestic violenceâ means a misdemeanor conviction for a
violation of s. 784.04875.
       (3)(1)âA person may not have in his or her care, custody,
possession, or control a any firearm or any ammunition if the
person:
       (a)âHas been issued a final injunction that is currently in
force and effect, restraining that person from committing acts
of domestic violence, as issued under s. 741.30, or from
committing acts of stalking or cyberstalking, as issued under s.
784.0485; or
       (b)âHas been convicted of a misdemeanor offense of domestic
violence.
       (4)âA person convicted of a misdemeanor offense of domestic
violence must, upon conviction, surrender all firearms and
ammunition in his or her possession as provided in subsection
(5).
       (5)(a)âUpon convicting a defendant of a misdemeanor offense
of domestic violence under s. 784.04875, the court shall order
the defendant to surrender to the local law enforcement agency
having jurisdiction over the defendant all firearms and
ammunition owned by the defendant which are in the defendantâs
custody, control, or possession, except as provided in
subsection (6), and any license to carry a concealed weapon or
firearm issued to the defendant under s. 790.06.
       (b)âThe law enforcement officer carrying out the court
order shall request that the defendant immediately surrender all
firearms and ammunition owned by the defendant which are in his
or her custody, control, or possession and any license to carry
a concealed weapon or firearm issued under s. 790.06. The law
enforcement officer shall take possession of all such
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