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A bill to be entitled 1
An act relating to domestic violence; creating s. 2
784.04875, F.S.; prohibiting certain acts of domestic 3
violence or dating violence; providing criminal 4
penalties; amending s. 790.065, F.S.; revising a 5
prohibition on the sale or transfer of firearms to 6
persons convicted of misdemeanor domestic violence 7
offenses; amending s. 790.233, F.S.; defining the term 8
"misdemeanor offense of domestic violence"; 9
prohibiting persons convicted of a misdemeanor offense 10
of domestic violence from possessing a firearm or 11
ammunition; requiring persons convicted of misdemeanor 12
offenses of domestic violence to surrender all 13
firearms and ammunition in their possession upon 14
conviction; requiring a court to order the defendant 15
to surrender to the local law enforcement agency all 16
firearms and ammunition and any license to carry a 17
concealed weapon or firearm; providing requirements 18
for law enforcement officers carrying out the court 19
order; authorizing a law enforcement officer to take 20
possession of all firearms and ammunition owned by t he 21
defendant and any license to carry a concealed weapon 22
or firearm; authorizing a law enforcement officer to 23
seek a search warrant under certain circumstances; 24
requiring the law enforcement officer taking 25
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possession of the firearms, ammunition, and licens e to 26
issue a receipt to the defendant, file the original 27
with the court, and ensure his or her law enforcement 28
agency retains a copy; requiring a court to make a 29
certain determination upon a sworn statement or 30
testimony that the defendant did not comply wi th the 31
required surrender of any firearms, ammunition, or 32
license; requiring the court to issue a warrant if it 33
finds that probable cause exists; providing for the 34
return of firearms, ammunition, and licenses to a 35
lawful owner under certain circumstances; requiring 36
all law enforcement agencies to develop certain 37
policies and procedures; authorizing a defendant to 38
elect to transfer all firearms and ammunition that he 39
or she owns to another person under certain 40
circumstances; providing criminal penalties; cre ating 41
s. 790.234, F.S.; defining the term "domestic 42
violence"; requiring a law enforcement officer to 43
remove firearms from the scene of an alleged act of 44
domestic violence under certain circumstances; 45
providing requirements for the law enforcement officer 46
removing such firearms; authorizing the owner of the 47
firearms to retake possession within a specified 48
timeframe; providing an exception; providing an 49
effective date. 50
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Be It Enacted by the Legislature of the State of Florida: 52
53
Section 1. Section 784 .04875, Florida Statutes, is created 54
to read: 55
784.04875 Domestic violence. -A person who commits any act 56
constituting domestic violence, as defined in s. 741.28, or any 57
crime the underlying factual basis of which has been found by a 58
court to include an ac t of domestic violence, knowing that the 59
victim is in the class of persons covered by that statute, or 60
dating violence, as defined in s. 784.046(1)(d), knowing that 61
the victim is in the class of persons covered by that statute, 62
commits a misdemeanor of the first degree punishable as provided 63
in s. 775.082 or s. 775.083. 64
Section 2. Paragraph (a) of subsection (2) of section 65
790.065, Florida Statutes, is amended to read: 66
790.065 Sale and delivery of firearms. — 67
(2) Upon receipt of a request for a crimi nal history 68
record check, the Department of Law Enforcement shall, during 69
the licensee's call or by return call, forthwith: 70
(a) Review any records available to determine if the 71
potential buyer or transferee: 72
1. Has been convicted of a felony and is pro hibited from 73
receipt or possession of a firearm pursuant to s. 790.23; 74
2. Has been convicted of a misdemeanor crime of domestic 75
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violence, and, therefore, is prohibited from purchasing a 76
firearm under 18 U.S.C. s. 922(d)(9) or s. 790.233 ; 77
3. Has had adjudication of guilt withheld or imposition of 78
sentence suspended on any felony or misdemeanor crime of 79
domestic violence, unless 3 years have elapsed since probation 80
or any other conditions set by the court have been fulfilled or 81
expunction has occurred; or 82
4. Has been adjudicated mentally defective or has been 83
committed to a mental institution by a court or as provided in 84
sub-sub-subparagraph b.(II), and as a result is prohibited by 85
state or federal law from purchasing a firearm. 86
a. As used in this subp aragraph, "adjudicated mentally 87
defective" means a determination by a court that a person, as a 88
result of marked subnormal intelligence, or mental illness, 89
incompetency, condition, or disease, is a danger to himself or 90
herself or to others or lacks the men tal capacity to contract or 91
manage his or her own affairs. The phrase includes a judicial 92
finding of incapacity under s. 744.331(6)(a), an acquittal by 93
reason of insanity of a person charged with a criminal offense, 94
and a judicial finding that a criminal d efendant is not 95
competent to stand trial. 96
b. As used in this subparagraph, "committed to a mental 97
institution" means: 98
(I) Involuntary commitment, commitment for mental 99
defectiveness or mental illness, and commitment for substance 100
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abuse. The phrase includes involuntary inpatient placement under 101
as defined in s. 394.467, involuntary outpatient placement under 102
as defined in s. 394.4655, involuntary assessment and 103
stabilization under s. 397.6818, and involuntary substance abuse 104
treatment under s. 397.6957, but does not include a person in a 105
mental institution for observation or discharged from a mental 106
institution based upon the initial review by the physician or a 107
voluntary admission to a mental institution; or 108
(II) Notwithstanding s ub-sub-subparagraph (I), voluntary 109
admission to a mental institution for outpatient or inpatient 110
treatment of a person who had an involuntary examination under 111
s. 394.463 if, where each of the following conditions have been 112
met: 113
(A) An examining physicia n found that the person is an 114
imminent danger to himself or herself or others. 115
(B) The examining physician certified that if the person 116
did not agree to voluntary treatment, a petition for involuntary 117
outpatient or inpatient treatment would have been fil ed under s. 118
394.463(2)(g)4., or the examining physician certified that a 119
petition was filed and the person subsequently agreed to 120
voluntary treatment prior to a court hearing on the petition. 121
(C) Before agreeing to voluntary treatment, the person 122
received written notice of that finding and certification, and 123
written notice that as a result of such finding, he or she may 124
be prohibited from purchasing a firearm, and may not be eligible 125
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to apply for or retain a concealed weapon or firearms license 126
under s. 790.06 and the person acknowledged such notice in 127
writing, in substantially the following form: 128
"I understand that the doctor who examined me believes I am 129
a danger to myself or to others. I understand that if I do not 130
agree to voluntary treatment, a petit ion will be filed in court 131
to require me to receive involuntary treatment. I understand 132
that if that petition is filed, I have the right to contest it. 133
In the event a petition has been filed, I understand that I can 134
subsequently agree to voluntary treatmen t prior to a court 135
hearing. I understand that by agreeing to voluntary treatment in 136
either of these situations, I may be prohibited from buying 137
firearms and from applying for or retaining a concealed weapons 138
or firearms license until I apply for and receiv e relief from 139
that restriction under Florida law." 140
(D) A judge or a magistrate has, pursuant to sub -sub-141
subparagraph c.(II), reviewed the record of the finding, 142
certification, notice, and written acknowledgment classifying 143
the person as an imminent dange r to himself or herself or 144
others, and ordered that such record be submitted to the 145
department. 146
c. In order to check for these conditions, the department 147
shall compile and maintain an automated database of persons who 148
are prohibited from purchasing a fir earm based on court records 149
of adjudications of mental defectiveness or commitments to 150
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mental institutions. 151
(I) Except as provided in sub -sub-subparagraph (II), 152
clerks of court shall submit these records to the department 153
within 1 month after the renditi on of the adjudication or 154
commitment. Reports shall be submitted in an automated format. 155
The reports must, at a minimum, include the name, along with any 156
known alias or former name, the sex, and the date of birth of 157
the subject. 158
(II) For persons committe d to a mental institution 159
pursuant to sub-sub-subparagraph b.(II), within 24 hours after 160
the person's agreement to voluntary admission, a record of the 161
finding, certification, notice, and written acknowledgment must 162
be filed by the administrator of the rec eiving or treatment 163
facility, as defined in s. 394.455, with the clerk of the court 164
for the county in which the involuntary examination under s. 165
394.463 occurred. No fee shall be charged for the filing under 166
this sub-sub-subparagraph. The clerk must presen t the records to 167
a judge or magistrate within 24 hours after receipt of the 168
records. A judge or magistrate is required and has the lawful 169
authority to review the records ex parte and, if the judge or 170
magistrate determines that the record supports the class ifying 171
of the person as an imminent danger to himself or herself or 172
others, to order that the record be submitted to the department. 173
If a judge or magistrate orders the submittal of the record to 174
the department, the record must be submitted to the departme nt 175
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within 24 hours. 176
d. A person who has been adjudicated mentally defective or 177
committed to a mental institution, as those terms are defined in 178
this paragraph, may petition the court that made the 179
adjudication or commitment, or the court that ordered that the 180
record be submitted to the department pursuant to sub -sub-181
subparagraph c.(II), for relief from the firearm disabilities 182
imposed by such adjudication or commitment. A copy of the 183
petition shall be served on the state attorney for the county in 184
which the person was adjudic ated or committed. The state 185
attorney may object to and present evidence relevant to the 186
relief sought by the petition. The hearing on the petition may 187
be open or closed as the petitioner may choose. The petitioner 188
may present evidence and subpoena witness es to appear at the 189
hearing on the petition. The petitioner may confront and cross -190
examine witnesses called by the state attorney. A record of the 191
hearing shall be made by a certified court reporter or by court -192
approved electronic means. The court shall ma ke written findings 193
of fact and conclusions of law on the issues before it and issue 194
a final order. The court shall grant the relief requested in the 195
petition if the court finds, based on the evidence presented 196
with respect to the petitioner's reputation, the petitioner's 197
mental health record and, if applicable, criminal history 198
record, the circumstances surrounding the firearm disability, 199
and any other evidence in the record, that the petitioner will 200
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not be likely to act in a manner that is dangerous to pu blic 201
safety and that granting the relief would not be contrary to the 202
public interest. If the final order denies relief, the 203
petitioner may not petition again for relief from firearm 204
disabilities until 1 year after the date of the final order. The 205
petitioner may seek judicial review of a final order denying 206
relief in the district court of appeal having jurisdiction over 207
the court that issued the order. The review shall be conducted 208
de novo. Relief from a firearm disability granted under this 209
sub-subparagraph has no effect on the loss of civil rights, 210
including firearm rights, for any reason other than the 211
particular adjudication of mental defectiveness or commitment to 212
a mental institution from which relief is granted. 213
e. Upon receipt of proper notice of r elief from firearm 214
disabilities granted under sub -subparagraph d., the department 215
shall delete any mental health record of the person granted 216
relief from the automated database of persons who are prohibited 217
from purchasing a firearm based on court records of 218
adjudications of mental defectiveness or commitments to mental 219
institutions. 220
f. The department is authorized to disclose data collected 221
pursuant to this subparagraph to agencies of the Federal 222
Government and other states for use exclusively in determi ning 223
the lawfulness of a firearm sale or transfer. The department is 224
also authorized to disclose this data to the Department of 225
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Agriculture and Consumer Services for purposes of determining 226
eligibility for issuance of a concealed weapons or concealed 227
firearms license and for determining whether a basis exists for 228
revoking or suspending a previously issued license pursuant to 229
s. 790.06(10). When a potential buyer or transferee appeals a 230
nonapproval based on these records, the clerks of court and 231
mental institutions shall, upon request by the department, 232
provide information to help determine whether the potential 233
buyer or transferee is the same person as the subject of the 234
record. Photographs and any other data that could confirm or 235
negate identity must be mad e available to the department for 236
such purposes, notwithstanding any other provision of state law 237
to the contrary. Any such information that is made confidential 238
or exempt from disclosure by law shall retain such confidential 239
or exempt status when transfer red to the department. 240
Section 3. Section 790.233, Florida Statutes, is amended 241
to read: 242
790.233 Possession of firearm or ammunition prohibited 243
when person is subject to an injunction against committing acts 244
of domestic violence, stalking, or cyberst alking; misdemeanor 245
domestic violence offenses; surrender of firearms and 246
ammunition; penalties.— 247
(2) As used in this section, the term "misdemeanor offense 248
of domestic violence" means a misdemeanor conviction for a 249
violation of s. 784.04875. 250
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(3)(1) A person may not have in his or her care, custody, 251
possession, or control a any firearm or any ammunition if the 252
person: 253
(a) Has been issued a final injunction that is currently 254
in force and effect, restraining that person from committing 255
acts of domestic violence, as issued under s. 741.30 , or from 256
committing acts of stalking or cyberstalking, as issued under s. 257
784.0485; or 258
(b) Has been convicted of a misdemeanor offense of 259
domestic violence. 260
(4) A person convicted of a misdemeanor offense of 261
domestic violence must, upon conviction, be required to 262
surrender all firearms and ammunition in his or her possession 263
as provided for in subsection (5). 264
(5)(a) Upon convicting a defendant of a misdemeanor 265
offense of domestic violence under this section, the cou rt shall 266
order the defendant to surrender to the local law enforcement 267
agency all firearms and ammunition owned by the defendant which 268
are in the defendant's custody, control, or possession, except 269
as provided in subsection (6), and to surrender any licens e to 270
carry a concealed weapon or firearm issued under s. 790.06. 271
(b) The law enforcement officer carrying out the court 272
order shall request that the defendant immediately surrender all 273
firearms and ammunition owned by the defendant in his or her 274
custody, control, or possession and any license to carry a 275
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concealed weapon or firearm issued under s. 790.06. The law 276
enforcement officer shall take possession of all surrendered 277
firearms and ammunition owned by the defendant and any license 278
to carry a concealed weapon or firearm issued under s. 790.06. 279
Alternatively, if personal service by a law enforcement officer 280
is not possible or is not required because the defendant was 281
present at the court hearing when the judge entered the order, 282
the defendant must surrend er in a safe manner any firearms and 283
ammunition he or she owns and any license to carry a concealed 284
weapon or firearm issued under s. 790.06 to the control of the 285
local law enforcement agency immediately after being served with 286
the order by service or imme diately after the hearing at which 287
the defendant was present. Notwithstanding ss. 933.02 and 288
933.18, a law enforcement officer may seek a search warrant from 289
a court of competent jurisdiction to conduct a search for 290
firearms or ammunition owned by the defe ndant if the officer has 291
probable cause to believe that there are firearms or ammunition 292
owned by the defendant in the defendant's custody, control, or 293
possession which have not been surrendered. 294
(c) At the time of surrender, a law enforcement officer 295
taking possession of any firearm or ammunition owned by the 296
defendant, or a license to carry a concealed weapon or firearm 297
issued under s. 790.06, shall issue a receipt identifying all 298
firearms surrendered, the quantity and type of ammunition 299
surrendered, and any license surrendered and shall provide a 300
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copy of the receipt to the defendant. Within 72 hours after 301
service of the order, the law enforcement officer serving the 302
order shall file the original receipt with the court and shall 303
ensure that his or her la w enforcement agency retains a copy of 304
the receipt. 305
(d) Notwithstanding ss. 933.02 and 933.18, upon the sworn 306
statement or testimony of any person alleging that the defendant 307
has failed to comply with the surrender of firearms or 308
ammunition owned by the defendant or of a license to carry a 309
concealed weapon or firearm under s. 790.06, as required by an 310
order issued under this subsection, the court shall determine 311
whether probable cause exists to believe that the defendant has 312
failed to surrender all firear ms or ammunition owned by the 313
defendant, or a license to carry a concealed weapon or firearm 314
under s. 790.06, which are in the defendant's custody, control, 315
or possession. If the court finds that probable cause exists, 316
the court shall issue a warrant descr ibing the firearms, 317
ammunition, or license owned by the defendant and authorizing a 318
search of the locations where the firearms, ammunition, or 319
license owned by the defendant are reasonably believed to be 320
found and requiring the seizure of any firearms, amm unition, or 321
license owned by the defendant discovered pursuant to such 322
search. 323
(e) If a person other than the defendant claims title to 324
any firearms or ammunition surrendered pursuant to this section 325
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and he or she is determined by the law enforcement age ncy to be 326
the lawful owner of the firearms or ammunition, the firearms or 327
ammunition must be returned to him or her if: 328
1. The lawful owner agrees to store the firearms or 329
ammunition in a manner such that the defendant does not have 330
access to or control of the firearms or ammunition; and 331
2. The firearms or ammunition are not otherwise unlawfully 332
possessed by the owner. 333
(f) All law enforcement agencies must develop policies and 334
procedures regarding the acceptance, the storage, and the return 335
of firearms, ammunition, or licenses required to be surrendered 336
under this section. 337
(6) A defendant may elect to transfer all firearms and 338
ammunition he or she owns which have been surrendered to or 339
seized by a local law enforcement agency pursuant to subse ction 340
(5) to another person who is willing to receive the defendant's 341
firearms and ammunition. The law enforcement agency must allow 342
such a transfer only if it is determined that the chosen 343
recipient: 344
(a) Is eligible to own or possess a firearm and ammun ition 345
under federal and state law after confirmation through a 346
background check; 347
(b) Agrees to store the firearms and ammunition in a 348
manner such that the defendant does not have access to or 349
control of the firearms and ammunition; and 350
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(c) Agrees not to transfer the firearms or ammunition back 351
to the defendant. 352
(7)(2) A person who violates this section subsection (1) 353
commits a misdemeanor of the first degree, punishable as 354
provided in s. 775.082 or s. 775.083. 355
(1)(3) It is the intent of the Legislature that the 356
disabilities regarding possession of firearms and ammunition are 357
consistent with federal law. Accordingly, this section does not 358
apply to a state or local officer as defined in s. 943.10(14), 359
holding an active certification, who receives or possesses a 360
firearm or ammunition for use in performing official duties on 361
behalf of the officer's employing agency, unless otherwise 362
prohibited by the employing agency. 363
Section 4. Section 790.234, Florida Statutes, is c reated 364
to read: 365
790.234 Domestic violence; temporary custody of firearms. — 366
(1) As used in this section, the term "domestic violence" 367
means an act constituting domestic violence, as defined in s. 368
741.28, and includes acts of domestic violence between da ting 369
partners as provided in s. 784.046(1)(d). 370
(2) When at the scene of an alleged act of domestic 371
violence, a law enforcement officer must remove a firearm from 372
the scene if: 373
(a) The law enforcement officer has probable cause to 374
believe that an act of domestic violence has occurred; and 375
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(b) The firearm is in plain view or is discovered during a 376
consensual or other lawful search. 377
(3) If a firearm is removed from the scene under 378
subsection (2), the law enforcement officer must: 379
(a) Provide to the o wner a receipt identifying all 380
firearms seized and information concerning the process for 381
retaking possession of the firearm; and 382
(b) Provide for the safe storage of the firearm during the 383
pendency of any proceeding related to the alleged act of 384
domestic violence. 385
(4) Within 14 days after the conclusion of a proceeding on 386
the alleged act of domestic violence or dating violence, the 387
owner of the firearm may retake possession of the firearm unless 388
ordered to surrender the firearm pursuant to s. 790.233. 389
Section 5. This act shall take effect October 1, 2022. 390