Lindsey & Ferry, P.A.
Risk Protection Orders
In 2018, Florida passed a new law enabling law enforcement officers, or law enforcement agencies, to petition their local district court to revoke a person’s right to possess firearms. The law requires law enforcement to file a document titled a “Petition for a Risk Protection Order” to initiate the process. Once initiated, the process moves very quickly, and requires a judge to make a decision whether or not to revoke a person’s constitutional right within a short period of time.
Law enforcement officers can file a Petition for a Risk Protection Order if they have reason to believe that a person poses a significant danger of causing personal injury to themselves or others by having a firearm or ammunition in their custody. Once the petition is filed, the law enforcement officer or law enforcement agency is referred to as the “petitioner” and the person against whom they are seeking the Risk Protection Order is referred to as the “respondent.” The petition must be filed in the county where the law enforcement office is located, or where the respondent lives. The petition must be accompanied by an affidavit made under oath that states the 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 is owned or possessed by the Respondent; and identify if there are any existing injunctions in place against the Respondent.
Once the court receives a Petition for a Risk Protection Order, the court must hold a hearing within 14 days, and must provide notice of the hearing to the respondent. The court may issue what is known as an “ex parte” risk protection order while waiting for the hearing. The ex parte order allows the court to consider the information provided by the petitioner to strip the respondent of his or her right to possess firearms or ammunition prior to the respondent ever being provided an opportunity to appear in court and defend against the accusations. The ex parte order is only valid until the day of the full hearing. The ex parte order must be served on the respondent at the same time as the notice of hearing. The court must hold a hearing to determine whether to issue an ex parte risk protection order either on the day that the petition is filed, or the next business day. 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 permits to the law enforcement officers that serve the notice of the order upon the respondent.
At the hearing, which must be held within 14 days, the court must decide whether there is clear and convincing evidence that the respondent poses a significant danger of causing personal injury to themselves or others by having possession of firearms or ammunition. If the court finds that there is clear and convincing evidence for such a risk, then the court must issue a risk protection order. The risk protection order can be ordered for any amount of time that the court deems appropriate, up to a maximum of 12 months.
The law provides a list of factors that the court may consider. It is not an exhaustive list, which means that the court is free to consider other factors that are 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 given under oath.
If the court finds that it must issue a risk protection order, then the court must also consider whether a mental health evaluation or substance abuse evaluation is appropriate as part of the risk protection order. The risk protection order must also 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 there are no grounds to issue the risk protection order, then the court must write the specific reasons for denying the order.
Once the court has issued a risk protection order, the respondent must surrender all of his or her firearms to law enforcement. Law enforcement must issue a receipt, and file the receipt with the court as proof. The Court must hold a hearing within three days of issuing the risk protection order to confirm that all of the firearms were surrendered.
If the court issues a risk protection order, the respondent may submit a written request for a hearing to vacate, meaning to remove, the risk protection order. The respondent may only make this request once after the order is issued, and once more after any extension of the risk protection order. If the court receives a request to vacate the risk protection order, the court must set a hearing within 14 to 30 days after the date that the petitioning 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 why that person cannot possess firearms.
The petitioning law enforcement officer or agency may make a motion to the court to extend a risk protection order within the last 30 days that the risk protection order is effective. If such a request to extend is made, then the court must hold a hearing within 14 days. If the court finds by clear and convincing evidence that the requirements for the issuance of a risk protection order still exist, then the court must extend the risk protection order for up to 12 months.
It is very important to comply with the terms of a risk protection order. Anyone who is caught possessing firearms in violation of a risk protection order can be prosecuted for a felony of the third degree, punishable by up to five years in prison.
If you have been served with notice of a risk protection order, it is important to immediately call an attorney. The process moves extremely quickly, and if you are not prepared to defend yourself, you can easily end up having your constitutional rights stripped away from you. If you or someone you know has been served with notice of a risk protection order, call the attorneys at Lindsey and Ferry, P.A. at 407-644-4044.