Florida risk protection order lawyer

What is a risk protection order in Florida?

Florida created risk protection orders in 2018 as part of the Marjory Stoneman Douglas High School Public Safety Act, passed after the Parkland shooting. Section 790.401 lets a court temporarily bar a person from having firearms or ammunition when they pose a significant danger to themselves or others.

Only a law enforcement officer or agency can file the petition. A family member, neighbor or coworker can't file one directly, though their reports to police are often what starts the process. The petition goes to circuit court with a sworn affidavit describing the specific statements or actions behind the request. It also lists the firearms the officer believes you have and where they're kept.

An RPO is a civil proceeding. You are not charged with a crime, and there's no arrest. But the consequences are real, and violating an order is a felony.

Temporary ex parte risk protection orders

Many people first learn about an RPO when a deputy arrives with a temporary order. Law enforcement can ask the court for an ex parte order, meaning one issued without notice to you. The judge only needs reasonable cause to believe you pose a significant danger in the near future, and the court hears the request the same day the petition is filed or the next business day.

The temporary order lasts until the full hearing. It's served along with the petition and the notice of hearing, and the officer will ask you to surrender your firearms and ammunition on the spot.

The RPO hearing in Pinellas County

The court has to hold the hearing within 14 days of the petition. At that hearing, the law enforcement petitioner must prove by clear and convincing evidence that you pose a significant danger of hurting yourself or others by having a firearm. That's a higher standard than the one used for the temporary order, and the officer's affidavit alone often isn't enough to meet it.

The judge may consider a list of factors set out in the statute, including:

• A recent act or threat of violence, with or without a firearm
• Serious mental illness or recurring mental health issues
• A violation of an injunction or a prior risk protection order
• Reckless use, display or brandishing of a firearm
• Corroborated substance abuse
• A recent purchase of firearms or ammunition

The rules of evidence apply the same way they do in a domestic violence injunction hearing. That means we can object to hearsay, cross-examine the officer and any witnesses, and present our own evidence, such as testimony from family members and records from your treating providers. Doug Greenberg was a state prosecutor before he became a defense lawyer, and he knows how to test a law enforcement witness who is relying on secondhand reports. The court will not appoint a lawyer for you in an RPO case, so you need to hire one if you want representation.

Surrendering firearms, ammunition and your license

Once an order issues, you have to surrender every firearm and all ammunition in your custody or control to law enforcement, along with any concealed weapons license, immediately. The officer gives you a receipt. The court sets a compliance hearing within 3 business days, which can be canceled if you've already turned everything over.

If a firearm actually belongs to someone else, the owner may be able to get it back by agreeing to store it where you can't reach it. You can also choose to transfer firearms to an eligible person who passes a background check and agrees not to return them while the order is in effect. Having or buying a firearm or ammunition while you know an order is in place is a third-degree felony, punishable by up to 5 years in prison.

How to vacate a risk protection order

A final order lasts as long as the judge decides, up to 12 months. During that time, you can file one written request for a hearing to vacate the order. The hearing is set no sooner than 14 days and no later than 30 days after the law enforcement agency is served with your request.

At this hearing the burden shifts to you. You have to show by clear and convincing evidence that you no longer pose a significant danger. Evidence such as completed counseling, a mental health evaluation or changed living circumstances can carry that burden, and we help you gather it well before the hearing date.

Opposing an RPO extension

An order does not renew on its own. Law enforcement can ask to extend it within the last 30 days before it expires, and the court must again find by clear and convincing evidence that the order is still needed. An extension can last up to another 12 months. If you contest the motion, you get a hearing. If you don't, the court can extend the order based on an affidavit saying nothing has changed, so it's important to respond.

Getting your guns back after a risk protection order

When an order expires or is vacated, firearms and ammunition aren't returned automatically. You have to ask for them. The agency runs a background check to confirm you can legally possess a firearm and confirms with the court that the order has ended. Family or household members must be notified before the return. Items left unclaimed for a year after the order is vacated can be disposed of under agency policy, so don't wait. Your concealed weapons license can be reinstated once the Department of Agriculture and Consumer Services confirms you're still eligible. If a criminal charge comes up during an RPO, see our page on gun charges in St. Petersburg.