CAN A FLORIDA JUDGE TAKE MY GUNS AWAY? YES, BUT NOT WITHOUT A FIGHT!
By: Guy Fronstin, Esq. and Yael Hamaoui
After the 2018 Marjory Stoneman Douglas High School shooting; where 17 students and adults were tragically killed in a school shooting, Florida implemented Risk Protection Orders, commonly referred to as “Red Flag” laws. Red Flag laws allow Judges to temporarily take someone’s gun rights away from them to curb gun violence while respecting Floridians’ second amendment right to keep and bear arms.
In the aftermath of the recent school shooting in Uvalde, Texas, where 21 students and adults were murdered, as well as the overall rise in shootings and gun violence throughout the US in the last few months, it is worth revisiting Florida’s legislative response after the 2018 shooting and understanding what it means to be issued a Risk Protection Order.
Section 790.401 of the Florida Statutes permits law enforcement agencies and officers to file a petition with the Circuit Court for the issuance of a Risk Protection Order. Essentially, law enforcement agencies in Florida can petition a court to have a person’s firearms temporarily seized if they find that person poses a significant danger of causing personal injury to themself or others by having a firearm or ammunition in their custody or control or by purchasing, possessing, or receiving a firearm or any ammunition. While only law enforcement may issue the Risk Protection Order Petition, individuals who are not in law enforcement can request that a law enforcement representative issue the Petition. In the event a Petition is filed against you, you have the right to defend yourself in court against the issuance of the Risk Protection Order.
Many were surprised to see this legislation come out of Florida since Florida is affectionately known as the “Gunshine” state. However, legislators fought tirelessly for this action as a way to protect the rights of law-abiding gun owners while taking action to prevent the misuse of firearms. These legislators believe that temporarily taking away firearms from those who may be a danger to themselves or others has helped prevent gun-related suicide, as well as other forms of gun violence and firearm misuse.
Judges consider several factors when deciding whether or not to issue a Risk Protection Order, including but not limited to someone’s history of violence and threats of violence against themselves and others, recurrent and serious mental health issues, illegal use of firearms, threatening physical force or stalking against another person, prior crime involvement involving violence or threats of violence, history of alcohol or controlled substance abuse, and the recent acquisition of firearms or ammunition.
If granted by a judge, Risk Protection Orders last one year but can be extended up to 12 more months. At any time during this period a Petition to Vacate the Risk Protection Order may be filed and argued before the Court. At the end of the Risk Protection Order period, the right to possess and purchase firearms and ammunition is restored.
Although controversial, Risk Protection Orders are meant to help not only the community but the firearm owner themself. The idea behind the Order is to give gun owners who may be a danger to themselves and others an opportunity to re-evaluate their intended future actions. If you or someone you know has a petition or Rick Protection Order filed against them, please feel free to contact us at Fronstin Law or Criminal Defense Clinics for a free consultation of your rights.