Florida Senate - 2022 SB 372 By Senator Berman 31-00055-22 2022372__ 1 A bill to be entitled 2 An act relating to domestic violence; creating s. 3 784.04875, F.S.; prohibiting certain acts of domestic 4 violence and dating violence; providing criminal 5 penalties; amending s. 790.065, F.S.; revising a 6 prohibition on the sale or transfer of firearms to 7 persons convicted of misdemeanor domestic violence 8 offenses; amending s. 790.233, F.S.; defining the term 9 misdemeanor offense of domestic violence; 10 prohibiting persons convicted of a misdemeanor offense 11 of domestic violence from possessing a firearm or 12 ammunition; requiring persons convicted of misdemeanor 13 offenses of domestic violence, upon conviction, to 14 surrender all firearms and ammunition in their 15 possession; requiring a court, upon convicting a 16 defendant of such offense, to order the defendant to 17 surrender to the local law enforcement agency having 18 jurisdiction all firearms and ammunition and any 19 license to carry a concealed weapon or firearm; 20 providing requirements for law enforcement officers 21 carrying out the court order; requiring a law 22 enforcement officer to take possession of all firearms 23 and ammunition owned by the defendant and any license 24 to carry a concealed weapon or firearm; authorizing a 25 law enforcement officer to seek a search warrant under 26 certain circumstances; requiring the law enforcement 27 officer taking possession of the firearms, ammunition, 28 and license to issue a receipt to the defendant and to 29 file the original with the court and a copy with his 30 or her law enforcement agency; requiring the court to 31 make a certain determination upon a sworn statement or 32 testimony that the defendant did not comply with the 33 required surrender of any firearms, ammunition, or 34 license; requiring the court to issue a warrant if it 35 finds that probable cause exists; providing for the 36 return of surrendered firearms, ammunition, and 37 licenses to their lawful owner under certain 38 circumstances; requiring all law enforcement agencies 39 to develop certain policies and procedures; 40 authorizing a defendant to elect to transfer all 41 firearms and ammunition that he or she owns to another 42 person if specified requirements are met; providing 43 criminal penalties; creating s. 790.234, F.S.; 44 defining the term domestic violence; requiring a law 45 enforcement officer to remove firearms from the scene 46 of an alleged act of domestic violence under certain 47 circumstances; providing requirements for the law 48 enforcement officer removing such firearms; 49 authorizing the owner of the firearms to retake 50 possession within a specified timeframe; providing an 51 exception; providing an effective date. 52 53 Be It Enacted by the Legislature of the State of Florida: 54 55 Section 1.Section 784.04875, Florida Statutes, is created 56 to read: 57 784.04875Domestic violence.A person who commits any act 58 constituting domestic violence, as defined in s. 741.28, or any 59 crime the underlying factual basis of which has been found by a 60 court to include an act of domestic violence, knowing that the 61 victim is in the class of persons covered by that statute, or 62 dating violence, as defined in s. 784.046, knowing that the 63 victim is in the class of persons covered by that statute, 64 commits a misdemeanor of the first degree, punishable as 65 provided in s. 775.082 or s. 775.083. 66 Section 2.Paragraph (a) of subsection (2) of section 67 790.065, Florida Statutes, is amended to read: 68 790.065Sale and delivery of firearms. 69 (2)Upon receipt of a request for a criminal history record 70 check, the Department of Law Enforcement shall, during the 71 licensees call or by return call, forthwith: 72 (a)Review any records available to determine if the 73 potential buyer or transferee: 74 1.Has been convicted of a felony and is prohibited from 75 receipt or possession of a firearm pursuant to s. 790.23; 76 2.Has been convicted of a misdemeanor crime of domestic 77 violence, and, therefore, is prohibited from purchasing a 78 firearm under 18 U.S.C. s. 922(d)(9) or s. 790.233; 79 3.Has had adjudication of guilt withheld or imposition of 80 sentence suspended on any felony or misdemeanor crime of 81 domestic violence, unless 3 years have elapsed since probation 82 or any other conditions set by the court have been fulfilled or 83 expunction has occurred; or 84 4.Has been adjudicated mentally defective or has been 85 committed to a mental institution by a court or as provided in 86 sub-sub-subparagraph b.(II), and as a result is prohibited by 87 state or federal law from purchasing a firearm. 88 a.As used in this subparagraph, adjudicated mentally 89 defective means a determination by a court that a person, as a 90 result of marked subnormal intelligence, or mental illness, 91 incompetency, condition, or disease, is a danger to himself or 92 herself or to others or lacks the mental capacity to contract or 93 manage his or her own affairs. The phrase includes a judicial 94 finding of incapacity under s. 744.331(6)(a), an acquittal by 95 reason of insanity of a person charged with a criminal offense, 96 and a judicial finding that a criminal defendant is not 97 competent to stand trial. 98 b.As used in this subparagraph, committed to a mental 99 institution means: 100 (I)Involuntary commitment, commitment for mental 101 defectiveness or mental illness, and commitment for substance 102 abuse. The phrase includes involuntary inpatient placement under 103 as defined in s. 394.467, involuntary outpatient placement under 104 as defined in s. 394.4655, involuntary assessment and 105 stabilization under s. 397.6818, and involuntary substance abuse 106 treatment under s. 397.6957, but does not include a person in a 107 mental institution for observation or discharged from a mental 108 institution based upon the initial review by the physician or a 109 voluntary admission to a mental institution; or 110 (II)Notwithstanding sub-sub-subparagraph (I), voluntary 111 admission to a mental institution for outpatient or inpatient 112 treatment of a person who had an involuntary examination under 113 s. 394.463 if, where each of the following conditions have been 114 met: 115 (A)An examining physician found that the person is an 116 imminent danger to himself or herself or others. 117 (B)The examining physician certified that if the person 118 did not agree to voluntary treatment, a petition for involuntary 119 outpatient or inpatient treatment would have been filed under s. 120 394.463(2)(g)4., or the examining physician certified that a 121 petition was filed and the person subsequently agreed to 122 voluntary treatment prior to a court hearing on the petition. 123 (C)Before agreeing to voluntary treatment, the person 124 received written notice of that finding and certification, and 125 written notice that as a result of such finding, he or she may 126 be prohibited from purchasing a firearm, and may not be eligible 127 to apply for or retain a concealed weapon or firearms license 128 under s. 790.06 and the person acknowledged such notice in 129 writing, in substantially the following form: 130 131 I understand that the doctor who examined me believes I am a 132 danger to myself or to others. I understand that if I do not 133 agree to voluntary treatment, a petition will be filed in court 134 to require me to receive involuntary treatment. I understand 135 that if that petition is filed, I have the right to contest it. 136 In the event a petition has been filed, I understand that I can 137 subsequently agree to voluntary treatment prior to a court 138 hearing. I understand that by agreeing to voluntary treatment in 139 either of these situations, I may be prohibited from buying 140 firearms and from applying for or retaining a concealed weapons 141 or firearms license until I apply for and receive relief from 142 that restriction under Florida law. 143 144 (D)A judge or a magistrate has, pursuant to sub-sub 145 subparagraph c.(II), reviewed the record of the finding, 146 certification, notice, and written acknowledgment classifying 147 the person as an imminent danger to himself or herself or 148 others, and ordered that such record be submitted to the 149 department. 150 c.In order to check for these conditions, the department 151 shall compile and maintain an automated database of persons who 152 are prohibited from purchasing a firearm based on court records 153 of adjudications of mental defectiveness or commitments to 154 mental institutions. 155 (I)Except as provided in sub-sub-subparagraph (II), clerks 156 of court shall submit these records to the department within 1 157 month after the rendition of the adjudication or commitment. 158 Reports shall be submitted in an automated format. The reports 159 must, at a minimum, include the name, along with any known alias 160 or former name, the sex, and the date of birth of the subject. 161 (II)For persons committed to a mental institution pursuant 162 to sub-sub-subparagraph b.(II), within 24 hours after the 163 persons agreement to voluntary admission, a record of the 164 finding, certification, notice, and written acknowledgment must 165 be filed by the administrator of the receiving or treatment 166 facility, as defined in s. 394.455, with the clerk of the court 167 for the county in which the involuntary examination under s. 168 394.463 occurred. No fee shall be charged for the filing under 169 this sub-sub-subparagraph. The clerk must present the records to 170 a judge or magistrate within 24 hours after receipt of the 171 records. A judge or magistrate is required and has the lawful 172 authority to review the records ex parte and, if the judge or 173 magistrate determines that the record supports the classifying 174 of the person as an imminent danger to himself or herself or 175 others, to order that the record be submitted to the department. 176 If a judge or magistrate orders the submittal of the record to 177 the department, the record must be submitted to the department 178 within 24 hours. 179 d.A person who has been adjudicated mentally defective or 180 committed to a mental institution, as those terms are defined in 181 this paragraph, may petition the court that made the 182 adjudication or commitment, or the court that ordered that the 183 record be submitted to the department pursuant to sub-sub 184 subparagraph c.(II), for relief from the firearm disabilities 185 imposed by such adjudication or commitment. A copy of the 186 petition shall be served on the state attorney for the county in 187 which the person was adjudicated or committed. The state 188 attorney may object to and present evidence relevant to the 189 relief sought by the petition. The hearing on the petition may 190 be open or closed as the petitioner may choose. The petitioner 191 may present evidence and subpoena witnesses to appear at the 192 hearing on the petition. The petitioner may confront and cross 193 examine witnesses called by the state attorney. A record of the 194 hearing shall be made by a certified court reporter or by court 195 approved electronic means. The court shall make written findings 196 of fact and conclusions of law on the issues before it and issue 197 a final order. The court shall grant the relief requested in the 198 petition if the court finds, based on the evidence presented 199 with respect to the petitioners reputation, the petitioners 200 mental health record and, if applicable, criminal history 201 record, the circumstances surrounding the firearm disability, 202 and any other evidence in the record, that the petitioner will 203 not be likely to act in a manner that is dangerous to public 204 safety and that granting the relief would not be contrary to the 205 public interest. If the final order denies relief, the 206 petitioner may not petition again for relief from firearm 207 disabilities until 1 year after the date of the final order. The 208 petitioner may seek judicial review of a final order denying 209 relief in the district court of appeal having jurisdiction over 210 the court that issued the order. The review shall be conducted 211 de novo. Relief from a firearm disability granted under this 212 sub-subparagraph has no effect on the loss of civil rights, 213 including firearm rights, for any reason other than the 214 particular adjudication of mental defectiveness or commitment to 215 a mental institution from which relief is granted. 216 e.Upon receipt of proper notice of relief from firearm 217 disabilities granted under sub-subparagraph d., the department 218 shall delete any mental health record of the person granted 219 relief from the automated database of persons who are prohibited 220 from purchasing a firearm based on court records of 221 adjudications of mental defectiveness or commitments to mental 222 institutions. 223 f.The department is authorized to disclose data collected 224 pursuant to this subparagraph to agencies of the Federal 225 Government and other states for use exclusively in determining 226 the lawfulness of a firearm sale or transfer. The department is 227 also authorized to disclose this data to the Department of 228 Agriculture and Consumer Services for purposes of determining 229 eligibility for issuance of a concealed weapons or concealed 230 firearms license and for determining whether a basis exists for 231 revoking or suspending a previously issued license pursuant to 232 s. 790.06(10). When a potential buyer or transferee appeals a 233 nonapproval based on these records, the clerks of court and 234 mental institutions shall, upon request by the department, 235 provide information to help determine whether the potential 236 buyer or transferee is the same person as the subject of the 237 record. Photographs and any other data that could confirm or 238 negate identity must be made available to the department for 239 such purposes, notwithstanding any other provision of state law 240 to the contrary. Any such information that is made confidential 241 or exempt from disclosure by law shall retain such confidential 242 or exempt status when transferred to the department. 243 Section 3.Section 790.233, Florida Statutes, is amended to 244 read: 245 790.233Possession of firearm or ammunition prohibited when 246 person is subject to an injunction against committing acts of 247 domestic violence, stalking, or cyberstalking; misdemeanor 248 domestic violence offenses; surrender of firearms and 249 ammunition; penalties. 250 (2)As used in this section, the term misdemeanor offense 251 of domestic violence means a misdemeanor conviction for a 252 violation of s. 784.04875. 253 (3)(1)A person may not have in his or her care, custody, 254 possession, or control a any firearm or any ammunition if the 255 person: 256 (a)Has been issued a final injunction that is currently in 257 force and effect, restraining that person from committing acts 258 of domestic violence, as issued under s. 741.30, or from 259 committing acts of stalking or cyberstalking, as issued under s. 260 784.0485; or 261 (b)Has been convicted of a misdemeanor offense of domestic 262 violence. 263 (4)A person convicted of a misdemeanor offense of domestic 264 violence must, upon conviction, surrender all firearms and 265 ammunition in his or her possession as provided in subsection 266 (5). 267 (5)(a)Upon convicting a defendant of a misdemeanor offense 268 of domestic violence under s. 784.04875, the court shall order 269 the defendant to surrender to the local law enforcement agency 270 having jurisdiction over the defendant all firearms and 271 ammunition owned by the defendant which are in the defendants 272 custody, control, or possession, except as provided in 273 subsection (6), and any license to carry a concealed weapon or 274 firearm issued to the defendant under s. 790.06. 275 (b)The law enforcement officer carrying out the court 276 order shall request that the defendant immediately surrender all 277 firearms and ammunition owned by the defendant which are in his 278 or her custody, control, or possession and any license to carry 279 a concealed weapon or firearm issued under s. 790.06. The law 280 enforcement officer shall take possession of all such 281 surrendered firearms and ammunition and any such license. 282 Alternatively, if personal service by a law enforcement officer 283 is not possible or is not required because the defendant was 284 present at the court hearing when the judge entered the order, 285 the defendant must surrender in a safe manner any such firearms 286 and ammunition and any such license to the control of the local 287 law enforcement agency immediately after being served with the 288 order by service or immediately after the hearing at which the 289 defendant was present, as applicable. Notwithstanding ss. 933.02 290 and 933.18, if a law enforcement officer has probable cause to 291 believe that the defendant has not surrendered all firearms or 292 ammunition owned by the defendant which are in his or her 293 custody, control, or possession, the law enforcement officer may 294 seek a search warrant from a court of competent jurisdiction to 295 conduct a search for such firearms or ammunition. 296 (c)At the time of surrender, a law enforcement officer 297 taking possession of any such firearm, ammunition, or license 298 shall issue a receipt identifying all firearms surrendered, the 299 quantity and type of any ammunition surrendered, and any license 300 surrendered and shall provide a copy of the receipt to the 301 defendant. Within 72 hours after service of the order, the law 302 enforcement officer serving the order shall file the original 303 receipt with the court and a copy of the receipt with his or her 304 law enforcement agency. 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 surrender any such firearms, ammunition, or 308 license as required by an order issued under this subsection, 309 the court shall determine whether probable cause exists to 310 support the allegation of failure to surrender. If the court 311 finds that probable cause exists that the defendant has failed 312 to comply with the order, the court must issue a warrant 313 describing the firearms, ammunition, or license that the 314 defendant failed to surrender, authorizing a search of the 315 locations where such firearms, ammunition, or license are 316 reasonably believed to be located, and requiring the seizure of 317 any such firearms, ammunition, or license discovered pursuant to 318 the search. 319 (e)If a person other than the defendant claims title to 320 any firearms or ammunition surrendered pursuant to this section 321 and that person is determined by the law enforcement agency to 322 be the lawful owner of the firearms or ammunition, the firearms 323 or ammunition must be returned to that person if: 324 1.The lawful owner agrees to store the firearms or 325 ammunition in a manner that prevents the defendant from having 326 access to or control of the firearms or ammunition; and 327 2.The firearms or ammunition are not otherwise unlawfully 328 possessed by the owner. 329 (f)All law enforcement agencies shall develop policies and 330 procedures regarding the acceptance, storage, and return of 331 firearms, ammunition, and licenses required to be surrendered 332 under this section. 333 (6)A defendant may elect to transfer all firearms and 334 ammunition that he or she owns which have been surrendered to or 335 seized by a local law enforcement agency pursuant to subsection 336 (5) to another person who is willing to receive the defendants 337 firearms and ammunition. The law enforcement agency must allow 338 such a transfer only if it is determined that the designated 339 recipient: 340 (a)Is eligible to own or possess a firearm and ammunition 341 under federal and state law, after confirmation through a 342 background check; 343 (b)Agrees to store the firearms and ammunition in a manner 344 that prevents the defendant from having access to or control of 345 the firearms and ammunition; and 346 (c)Agrees not to transfer the firearms or ammunition back 347 to the defendant. 348 (7)(2)A person who violates this section subsection (1) 349 commits a misdemeanor of the first degree, punishable as 350 provided in s. 775.082 or s. 775.083. 351 (1)(3)It is the intent of the Legislature that the 352 disabilities regarding possession of firearms and ammunition are 353 consistent with federal law. Accordingly, this section does not 354 apply to a state or local officer as defined in s. 943.10(14), 355 holding an active certification, who receives or possesses a 356 firearm or ammunition for use in performing official duties on 357 behalf of the officers employing agency, unless otherwise 358 prohibited by the employing agency. 359 Section 4.Section 790.234, Florida Statutes, is created to 360 read: 361 790.234Domestic violence; temporary custody of firearms. 362 (1)As used in this section, the term domestic violence 363 means an act constituting domestic violence, as defined in s. 364 741.28, and includes acts of domestic violence between dating 365 partners as provided in s. 784.046(1)(d). 366 (2)When at the scene of an alleged act of domestic 367 violence, a law enforcement officer must remove a firearm from 368 the scene if: 369 (a)The law enforcement officer has probable cause to 370 believe that an act of domestic violence has occurred; and 371 (b)The firearm is in plain view or is discovered during a 372 consensual or any other lawful search. 373 (3)If a firearm is removed from the scene under subsection 374 (2), the law enforcement officer must: 375 (a)Provide to the owner a receipt identifying all firearms 376 seized and information concerning the process for retaking 377 possession of the firearm; and 378 (b)Provide for the safe storage of the firearm during the 379 pendency of any proceeding related to the alleged act of 380 domestic violence. 381 (4)Within 14 days after the conclusion of a proceeding on 382 the alleged act of domestic violence or dating violence, the 383 owner of the firearm may retake possession of the firearm unless 384 ordered to surrender the firearm pursuant to s. 790.233. 385 Section 5.This act shall take effect October 1, 2022.