Red flag laws are gun control measures aimed at protecting the public by preventing specific individuals from possessing or purchasing firearms. Although the statutes have good intentions, they are flawed in that they can strip a person of their Second Amendment rights without them having committed a crime. Additionally, a judge can order an individual’s guns be taken away before that person has a chance to attend a hearing, which limits their right to due process.
Petition for a Risk Protection Order
In Florida, law enforcement officers can petition a court to issue a risk protection order in the name of an individual who is considered a danger to themselves or others.
When submitting the request, the officer must include:
- Statements or facts showing that the person poses a risk of injury to themselves or others because they possess a gun or ammunition
- Information about the types of firearms and ammunition the individual currently has
- Whether or not any protection orders are already issued in the person’s name
Evaluating Evidence
After the court receives the petition, it will evaluate it to determine whether or not the evidence is clear and convincing enough to prohibit the individual from possessing or purchasing a gun. In some cases, the court may order a temporary ex parte risk protection order. That means, even before the individual has a chance to attend a hearing in court and explain their situation, the judge can have their firearms taken away.
Eventually, a hearing will be granted, but by that time the person’s guns have been confiscated, and they must defend their case in a situation where the court has already deemed them to be a danger to themselves or others.
In cases where a temporary ex parte order is not granted, a hearing will be scheduled within 14 days of the petition being filed. During the proceedings, the court will consider various types of evidence when deciding to issue the risk protection order.
What the judge may look for may include, but is not limited to:
- If the person carried out or threatened to carry out an act of violence against themselves or others
- If the person is mentally ill or has mental health issues
- If the person violated a previous risk protection or no-contact order
- If the person was ever convicted of a domestic violence offense
- If the person ever unlawfully or recklessly brandished a gun
Penalties for a Violation
If the court determines that an individual is a threat to themselves or others, they can issue a risk protection order for up to 12 months. The individual will receive a notice from the court stating why their firearms are being confiscated, when the order takes effect, and when the order ends. They will also be directed to surrender their guns to the local law enforcement agency.
If the person fails to comply with the order, they could be charged with a third-degree felony, which is punishable by imprisonment of up to 5 years and a fine of up to $5,000.
Discuss Your Case with the Law Office of Armando J. Hernandez, P.A.
If you have been charged with a firearm offense, contact our lawyer for skilled legal representation. We have over 20 years of experience and have served as a prosecutor for many years, giving us unique insight on how the other side builds their cases. Leveraging our knowledge and skills, we will craft a compelling defense on your behalf and work toward getting charges reduced or dropped.
Get started on your case today by calling us at (305) 400-0074 or contacting us online.