Red Flag Law

Florida’s Red Flag Law violates Constitutional rights based on speculation of what someone may do in the future.

In 2018, The Florida Legislature passed SB 7026, a comprehensive bill to address the tragic shooting at Marjory Stoneman Douglas High School. Among the measures contained in SB 7026 was the creation of Risk Protection Orders also known as Red Flag Law. This law allows law enforcement to petition a court to temporarily seize ammunition and guns for up to a year from a person who “poses a significant danger of causing personal injury to himself or herself or others.” 

Constitutional problems with Florida’s Red Flag Law (RPO)

Section 790.401 Red flag law authorizes two kinds of gun confiscation orders. The first removes firearms without notice from their owner for two weeks before a hearing will be held. After the hearing, the judge may grant a more permanent order, up to 12 months. 

The greatest potential for abuse arises when law enforcement (“the petitioner”) seeks a temporary order without informing the gun owner. Guns are property, and the Fifth and 14th Amendments to the U.S. Constitution provide that people may not be deprived of property without due process of law. 

The Supreme Court has ruled that before the government can confiscate or infringe upon property, the owner is entitled to an opportunity to defend himself or herself. He or she is entitled to have a lawyer, cross-examine, and take advantage of other procedural benefits afforded by our American legal tradition.

Section 790.401 allows a respondent to represented by a lawyer but denies a right to a court appointed lawyer if the respondent cannot afford one. This forces low income people to represent themselves. 

There is no language in Section 790.401 that allows a respondent to cross-examine witnesses.  

RPO based on what the court thinks someone may do in the future  

The danger is that people who pose no real threat will be deprived of their constitutional rights based on fears that emphasize a horrific possible outcome while ignoring the extremely low probability that it will actually happen.

Taking away people's guns based on predictions of what they might do with them raises thorny due process issues.

If a person is truly so dangerous that he must be separated from his firearms, it’s illogical to still leave him active in society. Removing firearms does not stop violence; we have seen tragic deaths from cars and bombs. People who want to hurt others — or themselves — will find a tool.

Temporary ex parte order does not require “an imminent and extreme risk.”

The Temporary order is a policy of “Take the guns first, go through due process second.”

When it comes to seizing guns through a temporary order, the standards that a judge uses should be high, which should require “specific facts” that show “an imminent and extreme risk.”

In determining whether grounds for a risk protection order exist, the court may consider any relevant evidence, including, but not limited to, any of the following

790.401-Three examples of criteria for RPO and temporary order.

2. An act or threat of violence by the respondent within the past 12 months, including, but not limited to, acts or threats of violence by the respondent against himself or herself or others.

12. Corroborated evidence of the abuse of controlled substances or alcohol by the respondent.

13. Evidence of recent acquisition of firearms or ammunition by the respondent.

Criteria for issuing RPO is vague and open ended on what constitutes a “significant danger,” which gives courts broad discretion to seize firearms.

Section 790.401, Florida Statutes, allows the courts to remove and to prohibit the purchase of firearms when an individual poses a “significant danger” based on “any relevant evidence.” That’s it. The statute lists fifteen optional criteria that “may” be considered by the court, but the analysis is open-ended. There is no requirement that the “significant danger” be concrete, likely, or imminent. (Compare this to the Connecticut law, which requires that the respondent own firearms, lists mandatory criteria for the court’s consideration, and requires that the speculated harm be “imminent.”)

Curiously, almost all of the fifteen criteria in the Florida law would already submit an individual to some form of firearm restriction: domestic violence injunctions and convictions, stalking, previous convictions for violent acts, and threats of violence (a second-degree felony in Florida). “Recent acquisition of firearms” is among the criteria, along with “corroborated substance abuse” and “serious mental illness [or] recurring mental health issues.” While the petitioner must prove its case by clear and convincing evidence (unlike the Washington statutes, which require only a preponderance of the evidence), it is unclear how much due process protection this standard provides when the court is permitted to examine “any relevant evidence,” and virtually anything can be considered relevant.

In most cases, red flag laws have been invoked when the individual was deemed to be either a danger to themselves or to their immediate family and not because they were deemed to be posing a threat to a larger section of the populace. We already have the Baker Act for this kind of circumstance. 

Excerpts from Kendra Parris, Florida Attorney

Section 790.401 should require that the “significant danger” be concrete, likely, or imminent. PARRIS

Red flag laws are structured in a manner that incentivize seizure. The “better safe than sorry” problem.

The issue of determination is a somewhat crucial question, as existing red flag laws are structured in a manner that incentivize seizure. A law enforcement officer or a presiding judge is unlikely to face any consequence for taking weapons away from someone who isn’t really a threat. But the potential public backlash from refusing to do so if something tragic was to happen would be fierce. There is an obvious inducement to err on the side of caution—even if it means a violation of that individual’s Constitutional rights. 

Judge Andrew Napolitano, who was asked for his opinion of the Graham-Blumenthal legislation on Fox News, provided a direct and blunt response, noting, “Honest, decent, law-abiding people should not lose their rights because some judge thinks they might do something in the future. That’s the Soviet Union model, not the American.”

Loss of Constitutional Rights should require adjudication of mental incompetence

The new Risk Protection Order Act aims to impose second amendment and property restrictions without an adjudication of incompetence. Psychiatrists and psychologists have acknowledged that it’s impossible to predict when a person will commit violence based on his or her mental health profile alone. And even the Baker Act requires that an involuntary commitment be based on a person’s “recent behavior” demonstrating imminent danger to self or others. Crazy or disturbing thoughts, standing alone, cannot suffice to allow the curtailment of liberty. In the context of long-standing regulations on the acquisition of firearms by the mentally ill, an adjudication of mental incompetence has always been the safeguard ensuring due process before second amendment rights are curtailed.  Kendra Parris, Florida Attorney

Mental evaluation is optional in Section 790.401

(f) During the hearing, the court must consider whether a mental health evaluation or chemical dependency evaluation is appropriate and, if such determination is made, may order such evaluations, if appropriate.

The Problem of Malicious and False Accusations

Laws about child abuse, sexual assault, and domestic violence are sometimes used as weapons by spurned lovers and by people seeking revenge for various motives. There is no reason to believe people who pervert the law by making false reports will somehow be more scrupulous regarding the new confiscation tool. Many confiscation laws specifically declare that malicious or false petitions may be subject to prosecution. This is appropriate. But the odds of criminal prosecuted are low, even if an affidavit is sworn under penalty of perjury. Perjury prosecutions are rare, and rarer still from civil cases. Victims of abusive claims should be entitled to attorney’s fees, and they should have a cause of action of civil damages. Without a strong civil remedy, there is little practical deterrent to malicious reports.

RPO and ex parte temporary orders are public record forever.

Once an ex parte order and RPO is granted, it will always be a permanent public record. This seems counter-intuitive, since even criminal charges can be expunged under certain circumstances (and RPOs are not criminal in nature). It will not show up on most “background checks,” but it will still be a public record. People may be able to see it in an online search or if they are digging through civil court records. Kendra Parris, Florida Attorney