Everything you Need to Know About Florida’s “Red Flag” Law

September 1, 2021 Don Pumphrey, Jr. Criminal Defense, News & Announcements Social Share

What is a “Red Flag” Law

In response to the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida, the state enacted a “red flag” law that allowed judges to order potentially dangerous individuals to surrender their firearms. Five states had some version of a red flag law before the Stoneman Douglas shooting; however, eleven additional states enacted a red flag law after it occurred. The law was applied more than 3,500 times from its implementation to 2020, although some counties use it far more frequently than others. 

Why is it Important?

Supporters of the gun control law state that before it existed, the process to remove firearms from individuals making threats or suffering from severe mental breakdowns was a difficult one. Although investigators failed to act “on reports that the Parkland shooter was threatening to carry out a school massacre, even if they had, it is likely he would have been allowed to keep his guns because he had no felony convictions or involuntary, long-term mental commitments.” If you would like to read more about the impact a felony conviction has on your right to own a firearm, you can do so here.

Critics of the law argue that it violates the constitution of the United States and of Florida, primarily the right to bear arms.  Interestingly, a Supreme Court Case decided last May raised constitutional concerns around red flag laws. The case involved the seizure of a firearm after a wife reported to law enforcement that her husband was acting erratically and making suicidal statements. After his firearms were removed, the husband sued, claiming that the officers had entered his home and seized him and his firearms without a warrant in violation of the Fourth Amendment. The Court unanimously held that the seizure was a violation of the Fourth Amendment. The Court acknowledged that the case implicates red flag laws and that provisions of red flag laws may be challenged under the Fourth Amendment. Because Florida’s constitution “expressly binds us to the Fourth Amendment as interpreted by the United States Supreme Court, the holding applies to [Florida’s] red flag law.” Furthermore, the law has garnished opposition because many people believe it discriminates against the poor. Because the hearing involved in filing a Risk Protection Order is not considered a criminal proceeding, if Respondents cannot afford counsel, they are not appointed one.

If you would like to read more about the Fourth Amendment, you can do so here.

How it Works

Florida’s red flag law is codified in Section 790.401 of the Florida Statutes. After the safety issue is raised, the first step in the process is a law enforcement officer or law enforcement agency filing a Petition for a Risk Protection Order. This Petition must:

1. Allege that the Respondent poses a significant danger of causing personal injury to himself or herself or others by having a firearm or any ammunition in his or her custody or control or by purchasing, possessing, or receiving a firearm or any ammunition, and must be accompanied by an affidavit made under oath stating the specific statements, actions, or facts that give rise to a reasonable fear of significant dangerous acts by the Respondent;
2. Identify the quantities, types, and locations of all firearms and ammunition the Petitioner believes to be in the Respondent’s current ownership, possession, custody, or control; and
3. Identify whether there are any previously existing protection orders.

The statute requires the Petitioner (in this case, law enforcement) to make a good faith effort to provide notice to a family or household member of the Respondent and to any known third party who may be at risk of violence. The notice must state that the Petitioner intends to petition the court for a Risk Protection Order or already has and must include referrals to appropriate resources, including mental health, domestic violence, and counseling resources. Upon filing the Petition, the court must order a hearing to be held within fourteen days. During the hearing, the Petitioner tries to secure the Risk Protection Order to allow the Respondent’s firearms to be removed. This hearing allows for hearsay testimony under oath, as well as the following relevant evidence:

1. Recent acts or threats of violence by the Respondent against himself or herself or others;
2. An act or threat of violence by the Respondent against himself or herself or others that occurred in the prior 12 months;
3. Evidence of the Respondent’s mental illness or mental health issues;
4. Violations of Risk Protection Orders or No Contact Orders;
5. Previously issued or existing Risk Protection Orders;
6. Violations of previous or existing Risk Protection Orders;
7. Previous instances of crime involving domestic violence;
8. Previous threats of use of firearms against himself or herself or others;
9. Previous unlawful or reckless use, display, or brandishing of a firearm;
10. Repeated stalking, threats, or acts of violence;
11. Previous instances of crime involving violence or threat of violence;
12. Corroborated evidence of substance abuse;
13. Evidence of recent acquisition of firearms and/or ammunition;
14. Relevant information from family or household member about the Respondent;
15. Any other relevant information concerning a significant danger of injury to Respondent or others; and
16. Witness testimony relating to the matter, taken while the witness is under oath.

If the court finds by clear and convincing evidence that the Respondent 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, the court must issue a Risk Protection Order for a period that it deems appropriate, up to but not exceeding 12 months. However, the order can be extended for another 12 months if another Risk Protection Hearing is conducted.

It is also important to note that the statute allows for a temporary ex parte Risk Protection Order to be issued before a hearing for a Risk Protection Order without notice to Respondent. This Order requires the Petitioner to include in their petition that the Respondent poses a significant danger in the near future. If the Court determines this danger to be present, they can issue a temporary ex parte Risk Protection Order and a temporary ex parte Risk Protection Order hearing must be held immediately following the day the petition is filed.

What Happens Once the Order is Filed?

Under the Risk Protection Order, once the weapons and ammunition are surrendered to law enforcement, the Respondent will be given a receipt detailing everything that law enforcement took. The weapons or ammunition seized will be returned to the Respondent upon the Risk Protection Order being vacated or expiring. The Respondent has the option to turn their weapons and ammunition over to a third party if: 

1. The third party is eligible to own or possess a firearm and ammunition under federal and state law after confirmation through a background check;
2. The third party attests to storing the firearms and ammunition in a manner that respondent does not have access or control of the firearms and ammunition; and
3. The third party attests not to transfer the firearms or ammunition back to the respondent until the order is vacated, withdrawn, or otherwise inapplicable.

What Happens if the Order isn’t Followed?

Defying a red flag law can pose serious legal repercussions. A Respondent who violates the term of their Risk Protection Order faces a third-degree felony, punishable by up to five years in prison and a fine of up to $5,000.

In 2019, a Broward County Jury took less than an hour to find Jerron Smith guilty of violating the state’s red flag law when he refused to surrender his weapons to law enforcement officials. A Risk Protection Order was initially filed in 2018 against Smith after he was accused of shooting at a car during an argument.

Tallahassee Defense Lawyers

The procedure used to remove firearms under Florida’s red flag law involves many confusing steps. Because these steps occur in a matter of 14 days, it is imperative you seek the immediate assistance of a knowledgeable defense attorney to discuss your options for contesting the firearms seizure. Don Pumphrey and team Pumphrey Law Firm have years of experience defending clients against a wide variety of charges and will ensure each defense is explored in the favor of you or a loved one’s case. Contact Pumphrey Law Firm today at (850) 681-7777 or send an online message for an open and free consultation with a defense attorney on our team.

This article was written by Sarah Kamide

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