Florida’s “Red Flag” Law: How the State Can Take Away Your Second Amendment Rights

 Jake Pillsbury
 August 23, 2023

History of Florida’s Risk Protection Order Act

On March 9, 2018, Florida enacted the Marjory Stoneman Douglas High School Public Safety Act. The law created section 790.401, Florida Statutes (Find the full text of the statute here). This law is also known as “The Risk Protection Order Act”. The law allows law enforcement to ask a circuit court to order a person to surrender their weapons to the state. The order does not have to accompany any criminal charges. These “Risk Protection Orders” are designed to protect the public from individuals who, “pose a significant danger of causing personal injury to himself/herself or others by having a firearm or any ammunition.”  However, the law contains few protections against these petitions from being wrongly used during personal conflicts like divorces. 

The Risks of Risk Protection Orders

In theory, the law is a common-sense response to the ongoing serious issue of American gun violence.  However, the law has very few safeguards against improper application, and grants law enforcement agencies complete discretion in deciding which citizens should have their rights removed. Unlike petitions for protection against violence or stalking and petitions for involuntary mental health commitment under the Baker Act, these petitions for Risk Protection Orders can only be filed by law enforcement agencies. 

The petition only requires 1) allegations that a person poses some significant danger, and 2) an attached affidavit stating specific statements, actions, or facts which create a reasonable fear of significant dangerous acts.  Once the petition and affidavit are provided to the Court, a temporary Risk Protection Order will be issued and the targeted person will have all firearms, ammunition, and concealed carry permits seized by law enforcement.  Failure to comply with the seizure can result in felony charges.  Once this occurs, you will have to fight to get your property back.

How to Protect yourself

After the temporary petition is entered, the circuit court will hold a hearing within 14 days. This provides the targeted person with just two weeks to find an attorney and investigate the State’s allegations.  Often the person won’t have enough time to search for evidence. This can damage their ability to present a defense or fight for their rights. Often it is best to request a continuance to search for evidence and avoid a rubber-stamping of the petition. 

Whenever the State passes laws to eliminate individual rights, we at Guardline Law are skeptical of the motivations. Particularly when the law creates new powers for law enforcement agencies. We believe it’s our job to act as a check against State power. Laws which could weaken the public and/or impact Constitutional liberties must be scrutinized the most.   

If you are facing a Petition for Risk Protection Order and need advice or counseling, call us or click the link at the top of the page to request a consultation.  As your representative, we will thoroughly investigate the allegations within the petition, and will argue to keep your rights intact. Do not ignore these petitions. They do not go away. Your Constitutional rights are important. Once the State takes them, you will have to work hard to get them back