In the tragic aftermath of another school shooting, the Florida legislature enacted what they hoped would be a comprehensive bill aimed at school safety. Passed in March 2018 by the Florida legislature as part of the Marjory Stoneman Douglas High School Public Safety Act (MSDHSPSA), newly enacted Florida Statute §790.401 created a new mechanism for reducing incidents of gun violence.
Immediately, there was a tremendous reaction from all sides of any conceivable issue related to gun ownership and school safety. Everyone wants children to be safe. No one wants mentally unstable individuals to be able to carry out a massacre. So what is the problem? The problem is the same as any problem with laws - laws are written and passed by politicians, often in reaction to a disaster and often without providing a comprehensive roadmap to reform.
Like sausage, the way bills become law is probably best unstated; compromise and politics clearly play a role in what comes to the Governor for signature. However, there are frequently unseen complications, conflicts, or ambiguities in new laws, and it will take the Court years to address all them all. There are already lawsuits being filed over some aspects of Florida's new gun laws, including raising the age requirement to buy a rifle to 21. Throughout this article, we will touch on the new Florida gun laws and review a significant new legal procedure - the Risk Protection Order (RPO).
This novel process created by the MSDHSPSA involves a special court procedure and court order that severely restricts access to firearms. An RPO is essentially a court order that requires an individual to surrender all firearms and ammunition to a law enforcement agency for a period of 12 months if it has been found by a court that the individual “poses a significant danger of causing personal injury to himself or herself or others by having in his or her custody or control, or by purchasing, possessing, or receiving, a firearm or any ammunition” (§790.401). Additionally, if the respondent holds a license to carry a concealed weapon, that license must be surrendered to law enforcement for the duration of the RPO. Violation of an RPO is a felony.
At its core, Florida's Risk Protection Order is intended to be a mechanism by which the government can take immediate action to seize firearms from citizens it finds to be a danger to themselves or others. Laws like these are commonly referred to as red flag laws because they are designed to mitigate a potential future danger by recognizing risk factors for future violence and taking action before any violence occurs. On paper, that sounds like an excellent idea. Arguably, this is an ideal solution to the ongoing issues of gun violence in Florida and the United States overall.
Unfortunately, however, part of the concern about these red flag laws is that we do not presently have the ability to see the future, and the criteria for issuance of a risk protection order is vast; the requirements encompass such considerations as “any relevant evidence” and “evidence of the respondent being seriously mentally ill or having recurring mental health issues” (§790.401). That particular criterion certainly begs the question: Are people who suffer from serious or recurring mental health issues more likely to commit acts of violence than those who don’t suffer from mental illness?
It turns out the answer is a resounding “no”. In fact, “most mentally ill people are not only not violent or a threat, but they’re statistically more likely to be victims of violent crime” (Anderson). If that’s the case, should a history of mental illness be a factor in deciding to deprive someone of their rights under the second amendment? If not, what should be factored into that determination? As this law is explored and tested in Florida, these will be important questions for lawyers and judges.
In Florida, an RPO must be initiated by a law enforcement agency. The agency petitions the court to enter a risk protection order based on allegations that a person is a danger to themselves or others if they possess a firearm or ammunition. After the petition is filed, notice is served on the respondent and the matter is set for a hearing. At that hearing, a judge will listen to any relevant evidence as well as a litany of enumerated considerations, such as:
In short, a judge may consider any evidence in determining whether to enter a risk protection order as long as the judge finds the evidence is relevant. This is an extremely low bar for entry of evidence which will bear on an individual’s right to bear arms.
In order to support the entry of the risk protection order, the judge must find by clear and convincing evidence that the respondent presents a risk to him or herself or others. Again, this is a fairly low bar for entry.
Different Types of Burdens of Proof
In the law there are different burdens of proof for different types of proceedings. For example, to be convicted of a crime at trial the government must prove a criminal defendant’s guilt beyond and to the exclusion of every reasonable doubt. With only very slight exception, beyond a reasonable doubt is the highest burden of proof in the United States.
Contrast that with proof by a preponderance of the evidence, which is commonly used as the burden of proof at trial in civil matters. Proof by a preponderance of the evidence is roughly akin to “more likely than not.” It still requires the scales to tip in favor of one party or another, but even a slight tipping will do.
Clear and convincing evidence lies somewhere in between beyond a reasonable doubt and preponderance of the evidence.
Upon a finding that the respondent presents a risk that is supported by clear and convincing evidence, the judge will enter a risk protection order for 12 months and order the respondent to turn over all firearms and ammunition to the petitioning law enforcement agency. Once the order is entered, the respondent is prohibited from owning, possessing, purchasing, or otherwise acquiring guns and ammunition for the duration of the order.
Risk protection orders can also be extended beyond 12 months if, following a hearing, the presiding judge finds by clear and convincing evidence that the requirements for issuance of the order continue to be met. If the court makes such a finding, the order must be extended for a period of up to 12 more months, at which point it may be consider for extension once again. In other words, a risk protection order could potentially exist in perpetuity if the conditions which gave rise to its issuance are never satisfactorily remedied.
If a person is found to possess guns or ammunition while that person is subject to a risk protection order, that person is guilty of a third-degree felony. Ostensibly, this severe penalty for violating the terms of a risk protection order is intended to be powerful incentive to take the order seriously. That said, it also has the potential to turn a relatively minor event into something far more serious.
For example, a person might get arrested on a charge of misdemeanor assault for some fairly trivial threat. A misdemeanor assault is a second-degree misdemeanor with a maximum penalty of up to 60 days in a county jail. However, if that person were subject to a risk protection order and later found to be in violation of that order for any reason, that person is now facing up to five years in a state prison and becoming a convicted felon, at which point they will lose their right to own a firearm.
While this may seem like an easy fix (by not violating the RPO), there is potential for a dangerous snowball effect with risk protection orders. Especially when we consider that the purpose of this law is, in part, to ensure that people suffering from serious mental illness cannot access firearms. Sadly, people suffering from serious mental illness may not have the presence of mind to realize they’re not in compliance with order. And remember, all of this can occur without ever being convicted on that misdemeanor assault charge. The mere allegation, proven by a lower standard than required by criminal courts, could be enough to subject someone to a risk protection order.
Hire a lawyer.
The risk protection statute specifically states that a petition for an RPO does not require either party to be represented by an attorney. That said, the petitioner in every risk protection proceeding is the government. If you don’t already know, the government has plenty of lawyers at its disposal and there is a very high probability that the government will be represented by an attorney. If you come in without an attorney, you are starting from a significant disadvantage.
The risk protection order is still very new and will likely be subject to several legal challenges as it develops. By hiring an attorney to represent you, you ensure that you have someone on your side who can file proper motions and preserve issues for appeal. Even if you believe a petition to be completely without merit, you still need to be prepared to respond appropriately. Moreover, even if you think the entry of an order is inconsequential right now, there may come a time where you’ll wish you mounted a proper challenge, and if you haven’t done the proper leg work you may have missed the opportunity to do anything about it.
In the event you’re already under a risk protection order, that doesn’t mean the fight is automatically over. Under the statute, the respondent is entitled to a single hearing to vacate the RPO following its entry. There is no fixed deadline for requesting a hearing to vacate, and that hearing is essentially a role reversal from the original hearing that gave rise to the order.
On a motion to vacate, the burden of proof remains clear and convincing evidence. However, the burden is no longer on the petitioner to show that the respondent is a danger to themself or others. In order to vacate the risk protection order, the respondent must prove by clear and convincing evidence that he or she does not present a danger to themselves or others. Once again, this is a situation where an attorney will be almost essential to any hope of success. An attorney can evaluate the facts from an unbiased, outside perspective and will be trained in the rules of evidence and familiar with the burden of proof. What's more, an attorney can put forth the necessary arguments to reverse a risk protection order if it was inappropriately granted, or if the conditions which warranted its original entry are no longer present.
In the event that the judge finds the respondent has proven he or she is not a danger, the judge must vacate the RPO and alert the law enforcement agency that seized all of the respondent’s firearms, as well as the petitioner. Although the respondent only has the right to a single hearing to vacate the RPO, the same opportunity will be afforded each time the order is extended beyond the original term of 12 months.
At the end of the day, risk protection orders can, and probably will, serve an important function in ensuring the safety and well-being of all Florida citizens. But is the current method constitutionally sound or has the Government overstepped the bounds we place on it? This is the question of the hour and is always the case with new legislation.
The statute creating risk protection orders was brought about and passed in the wake of a national tragedy. When these laws were passed in a hurried session, the criminal prosecution of the shooter had barely begun. So, at this moment, Florida’s RPO law remains largely untested. We are likely many years of litigation away from answering all outstanding questions related to its use.
Challenging the Constitutionality of RPOs
In order to properly challenge the constitutionality of a law, you need an experienced Florida criminal defense attorney or an appellate attorney who understands how to create a proper record for a constitutional law challenge. At Delgado & Romanik, PLLC, we have successfully created new law by preserving and litigating issues all the way to the Florida Supreme Court. We understand how to protect your rights at the trial level and preserve your appellate rights. Our experienced criminal lawyers can handle your defense and constitutional battle from Florida Circuit Court all the way to the Supreme Court.
Someone will make this a federal case and challenge this law to the Supreme Court. But until someone wants to be the test case, the important thing for now is for Florida citizens to be aware of this law and educate themselves about its purpose and application. Then, should you find yourself on the receiving end of a petition for a risk protection order, call an attorney to help you out. Before you decide to hire an attorney, make sure they are familiar with Florida’s risk protection law and that they are prepared to fight the order if necessary and appropriate.
Between the MSDHSPSA and other recent changes, 2018 saw a lot of new Florida gun laws. Here is a brief summary of what you need to know about Florida's new gun laws and related procedures:
There are some obvious issues with many of these new laws, some of which already have lawsuits being filed. Take for example the new ban on bump fire stocks, a type of rifle stock that permits rapid fire by a previously legal modification of external parts. So far there are no provisions in place to compensate owners of these items and no amnesty or grandfathering in. So if you, or your business, own such a device... what do you do? Questions like this put innocent owners in jeopardy of committing crimes they may have not even known about!
Just like with RPOs, these new laws, if applied consistently and appropriately, may very well lead to a decrease in gun violence and crime in our state, which is absolutely a worthy and no doubt common goal of all moral people. It is hard to imagine anyone would not agree that mentally unwell individuals should not have legal access to weapons. But when we learn that the Florida Department of Law Enforcement was asleep at the wheel and allowed countless unauthorized individuals to lawfully obtain firearms, it reminds us that we, the citizens, must remain vigilant and hold government accountable. Our elected officials and our government must remain responsive to its people and unwilling to eviscerate those rights guaranteed by the U.S. constitution.
The right to own a firearm is a cherished right and a uniquely American right. Like all our rights, there will always be disagreement over the Government's ability to regulate firearm ownership. At Delgado & Romanik, we have been fighting for our client's constitutional rights for decades. We have challenged the constitutionality of statutes all the way to the Florida Supreme Court, including important challenges to the First Amendment Right to Free Speech and the Fourth Amendment's protection.
If you or a loved one you have questions about your rights or feel you need to speak to an experienced Florida firearms attorney, please call our skilled defense attorneys. We are conveniently located in Eastern Central Florida. We have offices in DeLand and Daytona Beach, as well as the ability to meet with clients in our executive St. Augustine office.