What's Up Sheepdogs? Ryan here with Tampa Carry.

In 2018, the State of Florida passed the Marjory Stoneman Douglas High School Public Safety Act in response to the Parkland high school active shooting. On February 14, 2018, Nikolas Cruz, a former student of Stoneman Douglas High School, entered the school and opened fire, killing 17 people and wounding 17 others. 

Florida's Risk Protection Order Statutes, also known as Red Flag Laws, give two options to confiscate an individual's firearms. One option is to hold a hearing, and the individual who is suspected as a threat (known as the respondent) can face his or her accusers in a court of law. 

Florida Statutes 790.401(3)(a) - Upon receipt of a petition, the court must order a hearing to be held no later than 14 days after the date of the order and must issue a notice of hearing to the respondent for the same.

In this first option, the individual has the right to due process and the ability to be represented by an attorney. Option two is called a temporary ex parte risk protection order, and it allows an individual's rights to due process to be waived in the name of public safety. 

Florida Statutes 790.401(4)(a) - A petitioner may request that a temporary ex parte risk protection order be issued before a hearing for a risk protection order, without notice to the respondent, by including in the petition detailed allegations based on personal knowledge that the respondent poses a significant danger of causing personal injury to himself or herself or others in the near future by having in his or her custody or control, or by purchasing, possessing, or receiving, a firearm or ammunition.

Petitioner F.S. 790.401 (1)(a) - means a law enforcement officer or a law enforcement agency that petitions a court for a risk protection order under this section.

Respondent F.S. 790.401 (1)(B) - means the individual who is identified as the respondent in a petition filed under this section.

How Does the Process for a Red Flag Start? 

In the state of Florida, a risk protection order (red flag) must be submitted by a law enforcement officer or law enforcement agency. Some states allow red flags to be initiated by friends, family members, or even coworkers, which in my opinion is very dangerous.

Florida Statutes 790.401 (2)(a) - A petition for a risk protection order may be filed by a law enforcement officer or law enforcement agency. (e) A 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;

How would a law enforcement officer or law enforcement agency know a person was a potential danger unless friends, family, or coworkers inform them? They wouldn't. It is so important to guard what you say. Unfortunately, I've heard stories of people making a joke that was interpreted the wrong way and an RPO (red flag) was issued. 

How Does the Court Determine if a Risk Protection Order (Red Flag) Is Necessary? 

If the courts are going to strip an individual of their constitutional right to possess firearms, they’d better have some substantial evidence that the individual is a threat. 

Florida Statutes 790.401 (3)(c) - 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

1. A recent act or threat of violence by the respondent against himself or herself or others, whether or not such violence or threat of violence involves a firearm. 

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.
3. Evidence of the respondent being seriously mentally ill or having recurring mental health issues.
4. A violation by the respondent of a risk protection order or a no contact order issued under s. 741.30, s. 784.046, or s. 784.0485.
5. A previous or existing risk protection order issued against the respondent.
6. A violation of a previous or existing risk protection order issued against the respondent.

7. Whether the respondent, in this state or any other state, has been convicted of, had adjudication withheld on, or pled nolo contendere to a crime that constitutes domestic violence as defined in s. 741.28.

8. Whether the respondent has used, or has threatened to use, against himself or herself or others any weapons.

9. The unlawful or reckless use, display, or brandishing of a firearm by the respondent.

10. The recurring use of, or threat to use, physical force by the respondent against another person or the respondent stalking another person.

11. Whether the respondent, in this state or any other state, has been arrested for, convicted of, had adjudication withheld on, or pled nolo contendere to a crime involving violence or a threat of violence.

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.

14. Any relevant information from family and household members concerning the respondent.

15. Witness testimony, taken while the witness is under oath, relating to the matter before the court.

According to these statements, the courts don't require much evidence to confiscate your firearms.  That’s very scary.

On August 16, 2019, Keith Cook, a former Marine and teacher, made an inappropriate comment during a school lockdown drill. He told his students that he would be "the best school shooter" and proceeded to claim he could achieve a 1,000-person body count. The parents received word of this inappropriate comment, the police got involved, and Keith became a victim to an RPO. Should he have said what he said? NO! But should he lose his rights for saying something stupid?

One boy placed a note in a mailbox on his way home from school that said "School Shooting." The mailbox belonged to a teacher. He received an RPO.

A 91-year-old man received an RPO for claiming he wanted to even the score with his wife's alleged lover. Countless RPOs have been issued against children who threatened to use guns at school. It's so important to talk to your children about NEVER talking about, discussing, or threatening someone with a gun. They need to understand that the consequences are severe, even if they meant it as a joke. 

How Does a Red Flag Get Removed? 

According to the Florida statutes below, it appears the risk protection order can be removed in the following two ways. First is for the respondent (the individual against whom the risk protection order was placed) to provide clear and convincing evidence that they do not pose a significant danger to themselves or others by possessing, purchasing, or receiving firearms or ammunition. 

Florida Statutes 790.401(6)(a)(2) - The respondent shall have the burden of proving by clear and convincing evidence that the respondent does not pose a significant danger of causing personal injury to himself or herself or others by having in his or her custody or control, purchasing, possessing, or receiving a firearm or ammunition…

If you ever fall victim to a risk protection order, I highly encourage you to retain a qualified legal team to fight on your behalf because this will not be an easy process. If by some chance, the courts decide to end the RPO against you, the courts will notify the law enforcement officer or law enforcement agency, known as the petitioner, 30 days before the RPO ends. At this point, the law enforcement officer or law enforcement agency can request an extension of the RPO. Then you and your legal team are forced to go back to court. 

Florida Statutes 790.401(6)(4)(b) - The court must notify the petitioner of the impending end of a risk protection order. Notice must be received by the petitioner at least 30 days before the date the order ends.

Florida Statutes 790.401(6)(4)(c) - The petitioner may, by motion, request an extension of a risk protection order at any time within 30 days before the end of the order. (1.) Upon receipt of the motion to extend, the court shall order that a hearing be held no later than 14 days after the date the order is issued and shall schedule such hearing.

There is much debate as to whether risk protection orders are keeping our society safer or violating our constitutional rights. I am not a fan, and I believe RPOs will be used inappropriately and as a way to confiscate firearms from law-abiding gun owners in Florida. 

That's all I have for today. So until next time keep training and stay safe...Talk to you soon,

Ryan G. Thomas

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