April 12, 2019
Under Florida law, if an officer deems an individual poses a risk to themselves or others, that individual can receive a risk protection order. The risk protection order law was passed in the aftermath of the Parkland school shooting, and it aims to help reduce firearm threats and decrease violent shootings throughout Florida.
Just in Pinellas County, a team of five people who are dedicated to working risk protection cases has already filed more than 64 risk protection orders. Most of these risk protection orders involve individuals with mental illnesses who pose a threat to themselves, rather than to others. This means individuals who have no intention of using their firearms to hurt others may still have a risk protection order served against them.
What Is a Risk Protection Order?
If officers believe a person poses a threat to their own life or to the lives of others, but there are no grounds to accuse them of a crime, officers can serve the individual with a risk protection order. The first stage of a risk protection order typically arrives in the mail, usually as soon as possible after an officer views a potential threat. The order requires the person served to immediately turn in all of their firearms and ammunition. Within fourteen days of the order, the individual must attend a hearing to determine whether the court will extend the risk protection order. If the court extends the order, the police may keep possession of the individual’s guns for up to twelve months.
According to the risk protection order policy provided by the Fort Lauderdale Police Department:
The purpose of this policy is to enhance public safety by temporarily preventing individuals who are at high risk of harming themselves or others from accessing firearms or ammunition by allowing law enforcement officers to obtain a court order when there is demonstrated evidence that a person poses a significant danger to himself/herself or others, including significant danger as a result of a mental health crisis or violent behavior. The intent is to reduce deaths and injuries as a result of certain individuals’ use of firearms while respecting constitutional rights by providing a judicial procedure for law enforcement officers to obtain a court order temporarily restricting a person’s access to firearms and ammunition.
Unfortunately, the criteria required to issue a risk protection order is relatively arbitrary. In one notable case, a 21-year-old student at the University of Central Florida received a risk protection order after making online comments praising mass shooters. The student actively participated in a number of forums online and engaged in hate speech praising mass shooters. He also claimed he was just “one major life event” from “gathering the courage” to commit such an act himself, but he did not own a gun of his own. The risk protection order affected the student’s college enrollment, and potentially damaged his future, in spite of the lack of evidence that he would actually commit a violent act. The police also seized a firearm that belonged to the student’s family. A court later returned the firearm after deeming that student’s behavior did not indicate immediate danger.
While risk protection orders aim to reduce gun violence, they have the potential to reduce freedom and violate protected rights. In some cases, such as with the college student, individuals who exercise their right of free speech may find themselves served with a risk protection order. In other cases, someone who is an otherwise responsible gun owner but is showing signs of mental illness may have limits placed on their Second Amendment rights.
Do You Need a Lawyer if the Police Serve You with a Risk Protection Order?
When police serve an individual with a risk protection order, they may tell them that they don’t need to talk to a lawyer. The person is not being charged with a crime, and law enforcement has not gathered evidence against them. However, anyone who has a risk protection order but does not retain an attorney may suffer a violation of their rights.
- The risk that a protection order restricts an individual’s freedom to self-defense. Police officers may have little evidence for why they believe someone presents a danger, since the wording used in the new law is vague. If the court grants the risk protection order, a person may lose the right to own a firearm for twelve months. That could compromise the ability to defend ones self and loved ones during that time.
- The media may obtain information about the risk protection order. Because the new standards are controversial, a risk protection order may result in media attention. An individual will have to petition the court to try to maintain their privacy, but an experienced lawyer and advocate may be necessary to help keep the matter confidential.
- The individual must turn over their existing firearms. The ex parte order will prevent an individual from selling or trading firearms for up to one year. In some cases, this may cause financial difficulty. Additionally, anyone who violates the order and handles firearms regardless may receive serious penalties. That potentially puts people in a difficult position, and they may become conflicted about how to handle transactions planned prior to the risk protection order being issued.
To overturn a risk protection order, the individual must file a petition with the court asking for the right to own firearms to be reinstated. Having rights reinstated before the end of the twelve month period, when police must return all confiscated firearms, may require a difficult court battle where people must prove they no longer pose a threat to themselves or others. Unfortunately, proving a negative is difficult, especially without professional help.
Contact Khonsari Law Group Today if You Face a Risk Protection Order
If you have received a risk protection order, speak to an experienced criminal defense lawyer as soon as possible. The legal team at Khonsari Law Group work hard to get the best possible outcomes for every case. Contact Khonsari Law Group in St. Petersburg at (727) 269-5300 or online to schedule a free consultation and learn if we may be able to help you.