In response to the tragic shooting at Parkland’s Marjorie Douglas High School in 2018, Florida enacted Fla. Stat. §790.401. This statute also referred to as a “Red Flag” law allows a judge to order the removal of guns from a person deemed to be a threat to himself or others.
How it works.
A law enforcement agency or a law enforcement officer starts the process by filing a Petition for a Risk Protection Order that must contain the following allegations:
- That the Respondent (person identified as a risk) poses a significant danger to cause injury who has access or control of a firearm (including ammunition) whose affidavit details of the facts that cause the fear of danger,
- Identifies the types and locations of firearms the Respondent has access to, and
- Whether there are any previous protection orders.
Fla. Stat. §790.410(2)(e).
The Petition for a Risk Protection Order must also be provided to the family of the Respondent, other agencies including mental health and other counseling agencies, as well as state whether a temporary ex parte protection order is to be issued pending a final hearing. Once this petition is filed, a hearing must be held within 14 days.
Due Process during a Risk Protection Hearing.
The hearing on a Petition for a Risk Protection Order is when the Petitioner tries to secure a Risk Protection Order to allow removal of access to weapons from a Respondent. This hearing allows for hearsay testimony under oath and subject to the penalties of perjury, as well as allowing evidence that includes:
- Recent acts or threats of violence – can be as old as 12 months prior,
- Mental illness evidence,
- Violations of risk protection orders of no contact orders,
- Previous issued Risk Protection Orders,
- Previous instances of domestic violence,
- Previous improper use or display of firearms,
- Repeated stalking, threats or acts of violence,
- Corroborated evidence of substance abuse,
- Recent acquisition of firearms and/or ammunition,
- Relevant information from family or household member, and
- Any other relevant information concerning a significant danger of injury to Respondent or others.
Fla. Stat. §790.410(3)(c).
Are Risk Protection Orders Permanent?
If the court finds by clear and convincing evidence that there is a significant danger of injury to the Respondent or to others, a Risk Protection Order shall be issued. This order is not permanent, but it can be in place for up to one year, and can be extended for another 12 months only after another Risk Protection Hearing. Fla. Stat. §790.410(3)(b)
Further, the Respondent can under this statute, request another hearing after the issuance of a Risk Protection Order. Fla. Stat. §790.410((6)(a).
How to comply with a Risk Protection Order, and what happens if it is violated?
The weapons that are the subject of a Risk Protection Order are to be surrendered to the law enforcement agency or the officer serving an issued Risk Protection Order. Once the firearms and ammunition are seized, a receipt identifying all items seized (including any issued permit to carry firearms) shall be issued to Respondent. If any law enforcement officer has probable cause to believe that all firearms that should be surrendered, then the court shall issue a warrant for the seizure for all such weapons. Fla. Stat. §790.410(7).
Once such an order is vacated, expired or otherwise no longer in effect, the law enforcement agency that has possession of any weapons seized pursuant to a Risk Protection Order shall be returned to Respondent provided the Respondent can otherwise legally possess or own such firearms or ammunition.
In lieu of law enforcement seizure of weapons, a Respondent can transfer the firearms and/or ammunition to another party provided:
- That person is otherwise eligible to possess firearms,
- Swears that the Respondent shall not have access to the transferred firearms, and
- Agrees not to transfer back to Respondent until the Risk Protection Order is vacated, withdrawn or otherwise inapplicable.
While these hearings and the temporary removal of weapons pursuant to a court order sound non-punitive in nature, if a Respondent violates the terms of such an order, the Respondent could be charged with a 3°Felony punishable by up to 5 years in prison. Therefore, the failure to comply with a Risk Protection Order carries harsh consequences that need to be avoided.
The Law Enforcement Officer or Agency has the burden of proving by clear and convincing evidence that the Respondent is a significant danger to others, and has to do so by evidence and not innuendo. This means that if there is evidence that would tend to establish that there is no risk to others, this evidence must be presented at the hearing. Risk Protection Hearings to allow for hearsay and other relaxed rules of evidence, but that doesn’t mean that nothing can be accomplished. Often times arrangements can be made for either the transfer or storage of the weapons, or other conditions that will remove the alleged risk short of a police department taking possession of weapons.
As you can see, the “Red Flag” weapon seizure law that Florida has created is complex and has numerous steps that occur in a very short time period of 14 days. Since time is of the essence, to contest such a seizure of firearms, if you have received a Petition for a Risk Protection Order, call the attorneys at Taracks & Associates at 813-281-2897 for your Free Consultation, so that we can discuss the appropriate response to such a petition to seize your weapons.