Can a judge sign an order allowing police to seize your guns without you even breaking a single law? In recent years, there has been a nationwide push for “extreme risk protective orders” or “red flag” laws specifically designed to remove firearms from people accused of engaging in conduct or making statements that others may deem “dangerous.” You’ve probably heard about them in the news recently; but what are they? What do you need to know about them, and how could they be used to take away your Second Amendment rights? Let’s look at the history of these laws and how Florida uniquely falls on this hotly debated area.
The History of Red Flag Laws
Red flag laws entered prominent national discourse in 1999 when Connecticut passed the first one of its kind because of a mass shooting at the Connecticut Lottery headquarters. Lawmakers in Connecticut intended this law to target individuals with specific mental health conditions and prevent them from accessing firearms.
More recently, on February 14, 2018, a 19-year-old former student opened fire at Marjory Stoneman Douglas High School in Parkland, Florida, horrifically killing 17 people and injuring 17 others. There was an immediate national outcry to “do something” to stop what the media has frequently dubbed “gun violence.” When information emerged that the shooter had documented mental health issues, lawmakers across the country began pushing for laws to take away guns from individuals whose behavior raised a “red flag” that they could be a threat to themselves or others.
In theory, the purpose of these laws is to identify an individual who exhibits early warning signs of danger and prevent a criminal act from occurring by preemptively disarming them. However, there’s an obvious irony: with red flag legal proceedings, the person’s firearms are seized, but the individual may be quickly released back into society, free to pursue whatever misdeeds they might choose to do.
Many of the states with red flag laws currently on the books allow for an enforceable court order that prevents the person from owning, purchasing, possessing, or transporting firearms and ammunition for a specified period of time. Several jurisdictions also allow the extension of these orders if the affected individual is still “deemed a threat.”
For example, under California’s red flag law (called a “gun violence restraining order”), a person could be prohibited from owning, purchasing, possessing, or transporting firearms and ammunition initially for between one and five years, with the potential for the order to be renewed and extended indefinitely. California Penal Code §§ 18170-18197 lays out the process by which any qualifying person may ask to extend the red flag order within three months of its expiration. The order will be extended if the court finds that the person still poses a significant danger of causing personal injury to themselves or another by controlling, owning, purchasing, possessing, or receiving a firearm, ammunition, or magazine, and all other conditions for renewal are satisfied.
A Californian subject to a red flag order may petition the court only once per year and ask for it to be lifted; which could entail another costly and time-consuming legal proceeding.
As of the publish date of this article, 19 states and the District of Columbia have enacted versions of red flag laws. How do things stand for Florida?
Red Flag Laws in Florida
Florida currently has a red flag law on the books called a Risk Protection Order (“RPO”), found in Florida Statute § 790.401. RPOs allow a judge to prohibit the possession or purchase of firearms and ammunition by individuals who pose a significant danger of causing personal injury to themselves or others by possessing firearms or ammunition. In Florida, only law enforcement officers or a law enforcement agency can petition a court for an RPO. The most controversial issue with RPOs is that a law enforcement officer can obtain a temporary RPO without the person subject to the RPO knowing about it. This is known as an “ex parte” order. Once a temporary RPO is issued, law enforcement will seize firearms and ammunition without the individual having the right to contest the seizure at that time. Law enforcement must identify the types and quantities of any firearms or ammunition seized, and any license surrendered by providing a written receipt. Simply put, RPOs allow the State to temporarily revoke your Second Amendment right to bear arms without due process.
If a temporary RPO is granted by a court, then the individual who is subject to the RPO is entitled to a hearing within 14 days of being served with the RPO. If the temporary RPO is dismissed at the hearing, the individual will once again be able to purchase and possess firearms and ammunition and their property will be returned to them. However, if at the hearing the court determines by “clear and convincing evidence” that the individual poses a significant danger, it will issue a Final Risk Protection Order, which will prevent the individual from purchasing and possessing firearms for up to 12 months. A final RPO can be extended past 12 months if the court determines the individual still poses a danger.
How do RPOs impact the day-to-day life of a law-abiding gun owner in Florida? Unfortunately, RPOs are being abused. Law-abiding residents who are forced to defend themselves or loved ones are falling victim to RPOs. It appears that some law enforcement agencies automatically seek an RPO when a firearm is displayed or used in self-defense. It is important to understand that if you are served with a temporary RPO, you must turn over your firearms and ammunition to law enforcement. The place to fight the injustice is in court, not on your doorstep.
Potential Future Legislation in Florida
House Bill 251 (2021), which aims at amending Florida’s red flag law (Risk Protection Order), is before the legislature this term. Currently, under Florida Statute § 790.401, only a law enforcement officer or law enforcement agency can petition for an RPO to be issued in the county in which the person subject to the RPO resides or in the county where the law enforcement agency is located. If H.B. 251 (2021) becomes law, a biological or legal parent, step-parent, grandparent, legal guardian, sibling, and/or spouse would have the ability to petition a court for an RPO. Further, H.B. 251 (2021) would allow the petition for the RPO to be filed in the county where the petitioner resides. For example, a person who lives in Pensacola could be required to defend themselves against an RPO filed in Miami by a parent, sibling, or spouse. Be sure to contact your State Senators and Representatives and urge them to vote this bill down.
If you have questions about red flag laws or any other gun-related legislation, call U.S. LawShield and ask to speak to your Independent Program Attorney.
The information provided in this publication is intended to provide general information to individuals and is not legal advice. The information included in this publication may not be quoted or referred to in any other publication without the prior written consent of U.S. LawShield, to be given or withheld at our discretion. The information is not a substitute for, and does not replace the advice or representation of a licensed attorney. We strive to ensure the information included in this publication is accurate and current, however, no claim is made to the accuracy of the information and we are not responsible for any consequences that may result from the use of information in this publication. The use of this publication does not create an attorney-client relationship between U.S. LawShield, any independent program attorney, and any individual.