In 2018, Florida passed FS 790.401, a new law enabling law enforcement to petition their local courts to revoke a person’s right to possess firearms. Here is what you need to know about the process, the petition, the hearing, the order and enforcement of this statute. Also included are some tips if you are facing a risk protection order in Florida.
Law enforcement (the Petitioner) can file a Petition for a Risk Protection Order if they have reason to believe that a person (the Respondent) poses a significant danger of causing personal injury to themselves or others by having a firearm or ammunition in their custody. There are only a few requirements:
- Law enforcement must file the petition in either the county where the law enforcement office is located or where the Respondent lives.
- The petition must include an affidavit made under oath that lays out specific statements, actions, or facts that give rise to a reasonable fear of significant dangerous acts by the Respondent.
- The petition must also identify the types, quantity, and location of all firearms and ammunition that the Petitioner believes the Respondent owns; and
- The petition must identify if there are any existing injunctions against the Respondent.
- The Petition and Ex Parte Order
On the day the petition is filed or the next business day, the court must hold a hearing to determine whether to issue an ex parte risk protection order. The court shall consider the information provided by the Petitioner to strip the Respondent of his or her right to possess firearms or ammunition. The court may issue an ex parte order if it is determined that the Respondent poses a significant danger of causing injury to themselves or others in the near future by possessing firearms or ammunition.
If the court issues an ex parte risk protection order, then the Respondent must surrender all firearms, ammunition, and concealed weapons permit to the law enforcement officers that serve the notice of the order upon the Respondent. The ex parte order must be served on the Respondent at the same time as the notice of hearing. The ex parte order is only valid until the day of the full hearing.
The Hearing and Burden of Proof
Once a Petition for a Risk Protection Order is filed, the court must set a hearing within 14 days. At the hearing, the court must decide whether the Respondent poses a significant danger of causing personal injury to themselves or others by having possession of firearms or ammunition. The burden is on the Petitioner, and it must be proved by clear and convincing evidence. If the burden is met, then the court must issue a risk protection order.
The statute lists the factors for the court to consider. It is not an exhaustive list, and the court is free to consider other factors not specifically mentioned. The listed factors include:
- Recent acts or threats of violence;
- Evidence of serious mental illness;
- Violations of previous risk protection orders or injunctions;
- The existence of previous or current risk protection orders;
- Prior convictions for domestic violence;
- Use or threats to use weapons;
- Unlawful or reckless display of firearms;
- Recurring use or threats to use physical force against others;
- Evidence of stalking other people;
- Prior convictions for any crimes involving violence or threats of violence;
- Corroborated evidence of alcohol or drug abuse;
- Evidence of recent acquisitions of firearms or ammunition;
- Information from family and household members; and
- Witness testimony is given under oath.
The risk protection order can be for up to a maximum of 12 months. If the court finds that it must issue a risk protection order, then the court must also consider if a mental health evaluation or substance abuse evaluation is also appropriate. (Treatment cannot be ordered, only an evaluation.) The risk protection order must include:
- A statement of the grounds supporting the issuance of the order; and
- Language explaining to the Respondent exactly what they must do to comply with the risk protection order.
- If the court finds that law enforcement has not met its burden, the court must write the specific reasons for denying the order.
Risk Protection Order Enforcement
Once the court issues a risk protection order, the following must happen “immediately”:
- The Respondent must surrender all firearms to law enforcement.
- Law enforcement must issue a receipt to the Respondent.
- Within 72 hours law enforcement files the receipt with the court as proof of surrender.
- If the Respondent fails to comply, law enforcement can, on a showing of probable cause, issued a warrant authorizing search and seizure of firearms.
The Pinellas County Sheriff’s Office has a Unit that follows up on these orders. I have heard very positive things about these deputies and the professional manner in which these matters are handled.
Motions to Vacate
If the court issues a risk protection order, the Respondent may submit a written request for a hearing to vacate the risk protection order. Law enforcement must be notified. The court must set a hearing within 14 to 30 days after the date that the law enforcement agency is notified.
At the hearing to vacate the risk protection order, the Respondent has the burden to prove by clear and convincing evidence that he or she does not pose a significant danger of causing personal injury to themselves or others by having possession of firearms or ammunition. If the court finds that the Respondent has proven the lack of significant danger, then the court must vacate the risk protection order. Once a risk protection order is vacated, the law enforcement agency must return the firearms to the Respondent unless there are other legal reasons the Respondent cannot possess firearms.
The petitioning law enforcement officer or agency may move the court to extend a risk protection order within the last 30 days that the risk protection order is effective. If a request to extend is made, then the court must hold a hearing within 14 days. If the court finds clear and convincing evidence that there has been no change in relevant circumstances and the requirements for the issuance of a risk protection order still exists, then the court must extend the risk protection order for up to another 12 months.
Return and Disposal
If a Motion to Vacate is granted or a risk protection order expires law enforcement must return the held property once the return is requested. Law enforcement must do a background check to confirm the current eligibility. Law enforcement must also notify any family or household members before the return. If the held property remains unclaimed for more than a year, the police may dispose of the property.
Failure to Comply
Violation of a risk protection order is a third-degree felony, punishable by up to five years in prison.
If you are served with a Risk Protection Order, you should consult with an attorney to preserve your Constitutional rights. You have a right to be represented by an attorney at the hearing. Most cases occur in relation to a criminal charge. It can be a useful opportunity to engage in some early discovery with officers and witnesses that could help in defense of your criminal case. Also, if a criminal charge is pending, testifying is a poor idea.
A better approach may be to waive the hearing and have the RPO put in place. You can then address the alleged issue and then come back later for a Motion to Vacate. At the motion to Vacate plan on showing a change in circumstances, like counseling, etc.. An argument that time has passed, by itself, will not carry the day.
Be nice to your probation officers. The PCSO is following up with them, seeing how you are doing. A good report goes a long way.
You should be nice to the RPO Unit Deputies that follow up on these cases. They are coming out and checking up on you. Good interaction with them can be helpful in lifting the RPO or avoiding an extension.
You can elect to have your firearms and ammunition transferred to another person. The recipient must pass a federal background check and attest that they are not going to give you back the firearms or allow them to access them.