Florida’s Red Flag Law is Discriminatory and is Being Abused!

The discriminatory Florida Red Flag Law continues to be used at an increasing pace. The law, which was part of the Marjory Stoneman Douglas Act went into effect in March, 2018.  Since then it has been used more than 3,500 times to take firearms away from gun owners without providing a hearing until after the property has been seized.  (Not sure what a Risk Protection Order is, click here to learn more.)

Risk Protection Order Law Discriminates Against the Poor

Since the act is civil, the laws that provide an attorney to indigent individuals do not apply and respondents who cannot afford an attorney are forced to represent themselves while wealthier individuals almost always have legal counsel.  This discriminates against the poor as those who do not have any legal training are forced to defend themselves in an unfamiliar setting with rules they do not know or understand.

Risk Protection Order Law was not needed

Prior to the enactment of the laws allowing Risk Protection Orders, there were other tools at law enforcement’s disposal.  The Baker Act allowed for involuntary hospitalization of those who had mental health issues and were a danger to themselves or others.  The Marchman Act did the same for those with serious drug issues.   Further, the possession of a firearm by those addicted to controlled substances is already a Federal felony for which arrests could have been made.  Police could also have filed charges against those making terroristic threats and a judge could order them to surrender all firearms as part of the condition of release from jail while the case was pending.

Risk Protections Orders are Being Abused

The act is obviously being abused.  While some counties in Florida have never sought a Risk Protection Order (RPO), others have sought one for every 850 residents in the county.  The statewide county average is 1 RPO per every 5,500 residence.  When the state-wide average is one RPO for every 5,500 residence and your county has a rate 6.5 times the average something is wrong.  Further, there are 12 counties in Florida averaging 1 or less RPOs issued for every 30,000 residents.  Making residents of Highlands County 35 times more likely to have an RPO issued against them.  But it gets worse.  There are two counties in Florida, Escambia and Santa Rosa, who have issued only one request for an RPO per every 100,000 residents in the county making it 118 times more likely to have an RPO issued against you in Highlands County than in either of these two counties. (Source: The Associated Press)

Risk Protection Orders Are Being Used Against Those Who Must Defend Themselves

Finally, it seems that whenever a citizen acts in self-defense and must display or use a firearm, the default position of law enforcement is to seek a Risk Protection Order.  We have defended many of these wrongly issued RPOs.  Unfortunately, the guns are taken first, then our clients must prove they are not a threat to get their property back.  In one example our client was threatened in a road rage incident with a baseball bat and forced to draw his firearm.  When the police could not locate a baseball bat on scene, he was arrested for aggravated assault with a firearm and an RPO was issued by the Court the next day.  We were forced to agree to a thirty-day continuance of the RPO hearing, leaving the temporary order in effect while we sought videos from surrounding businesses.  Finally, a video was located supporting our client’s version of events and the city prosecutor agreed to drop the RPO after we filed an immunity motion.  Our client lost his rights to possess firearms for self-defense during this time, when he had done absolutely nothing wrong.  The State was also forced to drop the criminal charges after we filed a Motion for Immunity in the criminal case.  Imagine if we were not able to locate that video evidence.  The Court would have certainly issued the RPO and our client may have been wrongfully convicted of a Felony.

Risk Protection Orders are being used at an alarmingly increasing rate in Florida, violating the rights of those whose property is taken first and kept unless they can prove that they are not a danger and have done nothing wrong.  In the case of Risk Protection Orders, the property is taken first, then the individual has an opportunity to get it back in court at a later time. This flies in the face of the guarantees of due process under the law found in the Bill of Rights.

David S. Katz

About Expert Firearm Attorney David Katz. David Katz is an Expert Firearm Attorney and has been practicing law for over 14 years. He began his career as a prosecutor in Seminole County, Florida.   There, he gained invaluable experience analyzing how...
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