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Risk Protection Orders – Florida’s Red Flag / Gun Violence Restraining Order/Injunction Law

by | May 1, 2019 | Injunctions, Domestic Violence and the Intersection of Family and Criminal Law

Whatever the name, there is now a movement sweeping the country to create a procedure to confiscate firearms of suspected at risk individuals before they perpetuate gun violence. Some people refer to these as Red Flag Laws or Gun Violence Restraining Orders/Injunctions.

In Florida, the law defines it as a Risk Protection Order (RPO). It is a preemptive strike upon a risk of violence and is a mere injunction by another name. An injunction is simply an Order directing the Subject to do or not do something.  The act ordered is to surrender firearms and any license to carry a concealed weapon or firearm, but not other weapons. However, a Subject of the Order may elect to transfer the firearms to another person.

In Florida, only law enforcement can file a Petition for a Risk Protection Order. However, other states and proposed federal legislation (SB 7) allow for loosely defined family members, former dating partners etc. in addition to police of sheriffs. A Petition 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 and identify the number, type and locations of all firearms and ammunition.

Law enforcement must make efforts to notify family and those who may be at risk. The Court must schedule a hearing within fourteen (14) days of the receipt of a Petition. This is the trial.  However, a petitioning police officer or sheriff can request a temporary order without a hearing; any temporary ex parte orders expire on the date of the hearing. After the hearing, the order can only last up to a year. At the end of a year, law enforcement can seek an extension of up to a year. Only one motion to vacate the Order can be filed. the Subject has the burden to prove by clear and convincing evidence that they do not pose a danger once an Order is in place

At the hearing, the burden of proof is clear and convincing evidence that the Respondent poses a significant danger of causing personal injury to themselves or others by having a firearm. The Court can also order the Respondent or Subject of the Risk Protection Order to complete a mental health evaluation or chemical dependency evaluation.

Even though these orders seek to remove or impinge upon a fundamental constitutional right, the right to bear arms, there is no requirement that the State provide an attorney. In fact, there is written into the law that there is no requirement that either party to be represented by an attorney. Any time the government is accusing a person, that person should seriously consider hiring a lawyer but in these types of cases, the respondent must hire their own lawyer. Please click, call or fill out the form to hire a lawyer to fight a Risk Protection Order.

Gainesville 352-371-9141

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