Under Florida's “red flag law,” courts may issue risk protection orders (RPOs) to prohibit certain individuals (called “respondents”) from having any firearms or ammunition because they pose a serious risk of gun violence. Read on for details on who can request these orders, what kind of proof is needed, and how respondents can defend themselves.
Help—and a Warning—for Potential Violence Victims
If you're worried about the threat of gun violence from someone close to you, think about how private your computer, Internet, and phone use are. Consider whether there's anything you can do to prevent someone else from learning that you're doing research or seeking help, especially if that person could gain access to your device. At the least, you should clear your browsing history after searching online, but you might consider using a friend's computer or one at a public library.
And if you need help, there are many available resources for victims of crime (or anyone at risk of becoming a victim).
In Florida only law enforcement agencies or officers may file petitions for RPOs. However, if you're afraid that someone you know poses a risk by having access to guns, you can go to your local police department or sheriff's office and ask them to file a petition. Be sure to provide any information that gave rise to your concerns (along with evidence, if you have it), such as violent threats or actions, mental health concerns. Tell officers about any guns and ammunition the person has and if you know whether there's another kind of existing protection order against the individual.
As soon as a petition is filed, the court must schedule a hearing on the RPO request within 14 days. The respondent must receive a notice about the petition and the hearing as soon as possible. (Fla. Stat. § 790.401(4) (2020).)
If law enforcement won't request an RPO, you might be able to obtain another kind of protection order—or more than one kind—if the person you're worried about has already hurt or threatened you. For instance, Florida has provisions for restraining orders to prevent further domestic violence, sexual or dating violence, stalking, or repeated violence. (Fla. Stat. §§ 741.30, 784.046, 784.0485 (2020).)
In some situations, a judge may issue a temporary risk protection order before the hearing if law enforcement asks for that when it files the petition. The judge must issue the temporary order within a day if, based on the evidence provided with the petition, it finds reasonable cause to believe that the respondent poses a significant danger of injuring someone with a gun in the near future.
The respondent won't know that a temporary RPO has been issued until being served with the order and notice of the hearing. At that point, the respondent must immediately surrender all firearms and ammunition, as well as any concealed carry license, to law enforcement. (Fla Stat. § 790.401(4) (2020).)
At the hearing on a request for a risk protection order, the court may consider any relevant evidence, including evidence showing that the respondent:
This evidence could include relevant information provided by the respondent's family or household members. Anyone who offers evidence must either provide it in writing (with copies to the respondent) or testify at the hearing under oath.
The required standard of proof at the hearing is a higher than for a temporary RPO. The judge won't issue the final order unless there's clear and convincing evidence that the respondent poses a significant risk of danger (to self or others) by having a gun or ammunition.
What If Someone Lies at the Hearing on a Risk Protection Order?
It's a third degree felony in Florida for anyone—the respondent, a law enforcement officer, or a witness—to lie under oath at any hearing on a risk protection order.
If you want to fight back against a request for an RPO against you, you must show up at the hearing and tell the judge your side of the story. You aren't required to have a lawyer (and the state won't provide one for you), but it would be in your best interest to hire an attorney to represent you at the hearing. An attorney who's experienced with handling restraining orders can help you gather and present evidence to show that you aren't a risk. Your lawyer can also cross-examine other witnesses at the hearing.
Once a judge issues a final RPO against you, you have the right to request a hearing to vacate the order. At this hearing, it will be up to you (or your attorney) to prove, by clear and convincing evidence, that you don't currently pose a risk of gun violence. You're only allowed to make one request while the order is in effect; if it has been extended, however, you can try again. (Fla. Stat. § 790.401(6) (2020).)
If you believe the judge made a mistake, or the evidence didn't support the decision to issue an RPO, you could also try appealing that decision to a higher court. However, the appellate court will assume that the judge's decision was correct unless you show otherwise. That's very difficult to do unless you have a transcript of the hearing. And if you want a transcript, you would have to arrange (and pay for) a court reporter to record the hearing and prepare a transcript, because Florida courts don't have to provide that for hearings on risk protection orders.
A final RPO will last as long as the judge thinks is appropriate, up to a maximum of one year. However, the law enforcement agency that filed the original petition may request an extension within 30 days before the order is set to expire. Unless the respondent doesn't oppose that request, there will be another hearing, with similar procedures and proof requirements as at the original hearing. Any extension may last up to another year. (Fla. Stat. § 790.401(3), (6) (2020).)
Whenever Florida courts issue final RPOs, they must schedule “compliance hearings” within three days. At those hearings (or beforehand), the respondents must show proof (such as receipts from law enforcement) that they've surrendered any guns and ammunition.
When anyone makes a statement (under oath) that a respondent hasn't complied with an RPO, the court will issue a search warrant if it finds probable cause to believe that's true. Law enforcement can then conduct a search for any guns or ammunition that the respondent has kept.
You may be charged with a third-degree felony for having a gun or ammunition when you know you're subject to a risk protection order. (Fla. Stat. § 790.401(7), (11) (2020).)
Some gun owners have appealed RPOs, arguing that Florida's red flag law is unconstitutional. So far, at least, they haven't been successful. State appellate courts have found that the law wasn't too broad or vague, and that the proceedings hadn't violated the respondent's constitutional right to due process. (See, for example, Davis v. Gilchrist County Sheriff's Office, 280 So.3d 524 (Fla. Dist. Ct. App. (2019).)
Look Out for Legal Changes
States frequently change their laws. But if you want to read the current version of any statute discussed in this article, you can find it by using the search tool on the Library of Congress Guide to Law Online.