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Under Section 401 of Chapter 790 in Title XLVI, the Florida Legislature created a new category for a protection order called the Risk Protection Order (“RPO”). Created as part of the Marjory Stoneman Douglas High School Public Safety Act, this new type of protective order went into effect on March 9, 2018.
This type of order is often called the Extreme Risk Protection Order (ERPO) or Gun Violence Restraining Order (GRVO) in other states. Others call it "red flag laws" or "speculation precrime laws."
The procedures established by Section 790.401 contain few safeguards that would protect the rights of the respondent or the due process of law. The main protection is that the same rules of evidence that apply to a domestic violence injunction hearing under s. 741.30 also apply at the RPO hearing. The statute does not explain whether a continuance can be granted at the respondent's request or whether depositions can be taken.
We routinely ask for a continuance so that we can take a deposition of the petitioner in an injunction case for domestic violence. The law enforcement agencies that are filing PRO petitions are taking the position that the law doesn't allow for a continuance and no discovery is permitted.
By refusing to give the respondent a continuance, the court is creating a pretty serious due process violation. Your attorney needs to be able to preserve the proper objections to those due process violations so that you can appeal an adverse ruling if the court grants the RPO.
The attorneys at Sammis Law Firm help clients who wish to contest the allegations in the Risk Protection Order ("RPO") by asserting their substantive and procedural due process rights at the fourteen (14) day return hearing.
We can represent you at a hearing on Petitioner’s Petition for Risk Protection Order in Hillsborough County, FL, or the surrounding areas in Tampa Bay. At the hearing, we can show the court all of the reasons that the petition should be denied. We can help you present testimony, other evidence, and the applicable law.
Because the statute is incredibly vague and overbroad, your attorney can present arguments about why Florida Statute 790.401 is unconstitutional on its face and as applied to the facts of your case.
Your attorney can help you show the court all of the reason why you do not pose a significant danger of causing personal injury to yourself or others by having a firearm or ammunition in your custody or control. If the allegations are false or exaggerated, an attorney can help you present evidence to show this at the return hearing. In other cases, it might be shown that the accusations are not sufficient to warrant this drastic remedy that should be reserved for only the most serious cases.
If the order has already been issued, you only have one chance within the 12 month period to file a request to vacate the RPO order. During the motion to vacate the RPO, we can help you show by a preponderance of the evidence that you do not pose a danger by having access to a firearm.
We also help our clients contest the extension of the RPO or file a motion to vacate the order after an extension is granted. Until the order is vacated, terminates, or expires, we can help you make sure that your firearm and ammunition is not destroyed by the law enforcement agency by making the proper claims to preserve the property. We can also help you lawfully transfer the firearms and ammunition to a third party for safekeeping.
From our main office in downtown Tampa and our second office in New Port Richey, we represent clients in protective order hearings throughout the greater Tampa Bay area including at the courthouse in any of the following areas:
Call us to discuss your case at 813-250-0500.
If you attend these hearing, an attorney should consider filing in WRITING the following types of motions:
The biggest problem is that the respondent is not entitled to an appointed attorney. Additionally, attorney fees cannot be recovered even when the court finds the initial filing to be frivolous.
The statute itself does nothing to keep these records confidential, even when the court denies the petition because of a lack of evidence. Even more problematic, the allegations often reference information found in mental health records or court records that would otherwise be confidential. Your attorney can help you protect that confidential information.
In the penalties section of the statute, the Florida legislature acknowledged that a law enforcement officer might file a petition with the intent to harass the respondent or present materially false information in the petition. Even more likely, the officer might mistakenly base the action on false or exaggerated information from a third party. Hearsay is inadmissible at an RPO hearing, so you have to be ready to preserve that objection.
As explained in Section 14, ch. 2018-3, Section 790.401, Florida Statutes, is “intended to temporarily prevent 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...."
To obtain the RPO, under the Risk Protection Order Act, the petitioner must present evidence to provide that a person poses a significant danger to himself or herself or others, including significant danger as a result of a mental health crisis or violent behavior.
The purpose and intent of s. 790.401, Florida Statutes, is explained in Section 14, ch. 2018-3, Section 790.401, is to do the following:
The process established by the Section 790.401, Florida Statutes, is “intended to apply only to situations in which the person poses a significant danger of harming himself or herself or others by possessing a firearm or ammunition…” Section 14, ch. 2018-3, Section 790.401, Florida Statutes.
How many RPOs are being filed in Florida?Few studies or statistics have been published to answer this question. A recent news article reported that in the weeks since the law passed, that Hillsborough County had six risk protection cases, while Pinellas County has seven and Pasco County had three.
At a conference of the Court Statistics and Workload Committee in April of 2018, the committee noted that the amount of judicial workload due to the new SRO statute has the potential to be "substantial."
On page 77 of the report, the committee speculated that the increase in workload would depend on the following factors:
Keep in mind that Florida law does NOT require the RPO Hearings to be digitally recorded or reported at the State of Florida's expense. The presiding judge might or might not use their discretion to digitally record the RPO Hearings. For this reason, you have the right to hire a court reporter to attend the final hearing to ensure that an accurate record of the final hearing is made.
If you don't hire a court reporter to make the record, then you have no way to appeal an adverse ruling to a higher court. Filing an appeal is the only proper way to complain about a mistake made by the judge or a denial of due process.
The order should explain whether the hearing will be recorded or whether you are entitled to bring a court reporter, although many of the orders we have seen do not explain this at all.
The term “petitioner” means a law enforcement officer or a law enforcement agency that petitions a court for a risk protection order under Section 790.401, Florida Statutes.
The term “respondent” means the individual who is identified as the respondent in a petition filed under Section 790.401, Florida Statutes.
The term “risk protection order” means a temporary ex parte order or a final order granted under Section 790.401, Florida Statutes.
Other terms in the statute are left completely undefined, including:
In Florida, only an enforcement officer or law enforcement agency can file a petition for a risk protection order. The petition must be filed in either:
The petition for a risk protection order does not require either party to be represented by an attorney, although the respondent is entitled to be represented by an attorney at every stage of the case. The circuit courts in Florida have jurisdiction over these proceedings.
Under Section 790.401(e), to be deemed sufficient, the petition must allege the following:
Other requirements for the petition for the RPO include the following:
Florida law provides that a court or a public agency may not charge fees for filing or for service of process to a petitioner seeking relief under this section and must provide the necessary number of certified copies, forms, and instructional brochures free of charge.
The respondent is not required to post a bond to obtain relief in any proceeding under this section.
The statute expressly provides that the court is not permitted to award attorney fees to either the petition or respondent in this type of action.
Florida law provides that the petitioner must make a good faith effort to provide a notice of the fact that the RPO was filed to a family or household member of the respondent and to any known third party who may be at risk of violence.
The notice must state that the petitioner intends to petition the court for a risk protection order or has already done so and must include referrals to appropriate resources, including mental health, domestic violence, and counseling resources.
The petitioner must attest in the petition that he or she has provided such notice or must attest to the steps that will be taken to provide such notice.
Under Section 790.401(3), after the RPO is filed, the court must order a hearing (often called the “return hearing”) to be held no later than 14 days after the date of the order and must issue a notice of hearing to the respondent for the same.
The clerk of the court shall cause a copy of the notice of the return hearing and petition to be forwarded on or before the next business day to the appropriate law enforcement agency for service upon the respondent.
In some cases, the court is permitted to issue a temporary ex parte risk protection order pending the return hearing. The temporary ex parte order must be served concurrently with the notice of hearing and petition.
The clerk of court in the county where the RPO is filed will conduct a search of the online court records for that county. The clerk will then report any cases in which the respondent was named as a party in a case including:
For cases in Hillsborough County, FL, a new administrative order requires the Clerk of the Circuit Court to assign all RPO petitions and other documents filed under the Risk Protection Order Act to Probate, Guardianship, Mental Health and Trust Division "M." Judge Ronald Ficarrotta, the Chief Judge, is currently assigned to Division "M."
The assigned division judge will review all petitions and other documents filed between 8:00 a.m. and 4:59 p.m. on non-holiday weekdays. The duty judge will review temporary ex parte petitions filed at and after 5:00 p.m. on non-holiday weekdays and temporary ex parte petitions filed on weekends and holidays.
As provided in Section 790.401(5), a sworn law enforcement officer in Hillsborough County is required to serve a copy of the petition, notice of hearing, and temporary ex parte risk protection order or risk protection order. A law enforcement agency effecting service must use service and verification procedures consistent with those of the Hillsborough County Sheriffs Office.
Read more about the procedures for a Risk Protection Order in Hillsborough County, FL.
In Pinellas County and Pasco County, no administrative order has yet been filed. Instead, the judge acting as the scheduled duty judge on the day the petition is filed decides whether to issue a temporary order, sets the hearing within 14 days, and then conducts the hearing. Because the duty judge schedule is published weeks in advance and because the agency has control over when the petition is filed, the petitioner can pick the judge that will hear the case, as least until an administrative order is entered that describes a better procedure.
The court may conduct a hearing by telephone under a local court rule to reasonably accommodate a disability or exceptional circumstances. The court must receive assurances of the petitioner’s identity before conducting a telephonic hearing.
The court must issue a risk protection order for a period that it deems appropriate, up to and including but not exceeding twelve (12) months if:
In determining whether grounds for a risk protection order exist, the court may consider any relevant evidence, including, but not limited to, any of the following:
Normally, the witness at a protective order hearing must take the stand and testify in open court. The RPO statute, however, allows the court to consider evidence or recommendations in writing or by telephone at the hearing.
If the evidence or recommendation is in writing, then the respondent and the respondent's attorney are entitled to a copy.
The statute also provides that for a hearing under this section, the rules of evidence apply to the same extent as in a domestic violence injunction proceeding under s. 741.30.
A petitioner may request that a temporary ex parte risk protection order be issued before a hearing for a risk protection order, without notice to the respondent.
The petition must explain the allegations based on personal knowledge that the respondent poses a significant danger of causing personal injury to himself or herself or others in the near future by having in his or her custody or control, or by purchasing, possessing, or receiving, a firearm or ammunition.
In considering whether to issue a temporary ex parte risk protection order under this section, the court shall consider all relevant evidence.
If a court finds there is reasonable cause to believe that the respondent poses a significant danger of causing personal injury to himself or herself or others in the near future by having in his or her custody or control, or by purchasing, possessing, or receiving, a firearm or ammunition, the court must issue a temporary ex parte risk protection order.
The court must hold a temporary ex parte risk protection order hearing in person or by telephone on the day the petition is filed or on the business day immediately following the day the petition is filed.
A temporary ex parte risk protection order must include all of the following:
“To the subject of this protection order: This order is valid until the date noted above. You are required to surrender all firearms and ammunition that you own in your custody, control, or possession.
You may not have in your custody or control, or purchase, possess, receive, or attempt to purchase or receive, a firearm or ammunition while this order is in effect.
You must surrender immediately to the (insert name of local law enforcement agency) all firearms and ammunition in your custody, control, or possession and any license to carry a concealed weapon or firearm issued to you under s. 790.06, Florida Statutes.
A hearing will be held on the date and at the time noted above to determine if a risk protection order should be issued.
Failure to appear at that hearing may result in a court issuing an order against you which is valid for 1 year. You may seek the advice of an attorney as to any matter connected with this order.”
The temporary ex parte risk protection order ends upon the hearing on the risk protection order. A copy of the temporary ex parte risk protection order must be served by a law enforcement officer on the respondent and must be served concurrently with the notice of hearing and petition.
If the court denies the petitioner’s request for a temporary ex parte risk protection order, the court must state the particular reasons for the denial.
A risk protection order must include all of the following:
“To the subject of this protection order:
This order will last until the date noted above. If you have not done so already, you must surrender immediately to the (insert name of local law enforcement agency) all firearms and ammunition that you own in your custody, control, or possession and any license to carry a concealed weapon or firearm issued to you under s. 790.06, Florida Statutes.
You may not have in your custody or control, or purchase, possess, receive, or attempt to purchase or receive, a firearm or ammunition while this order is in effect.
You have the right to request one hearing to vacate this order, starting after the date of the issuance of this order, and to request another hearing after every extension of the order, if any.
You may seek the advice of an attorney as to any matter connected with this order.”
If the court issues a risk protection order, the court must inform the respondent that he or she is entitled to request a hearing to vacate the order under Section 790.401(6). The court shall provide the respondent with a form to request a hearing to vacate.
The attorneys at the Sammis Law Firm represent clients at the hearing in which the court considers the petition for a risk protection order. If the order was already granted, we can help you request a hearing to show all of the reasons why the RPO should be vacated.
You have a right to request only ONE hearing to terminate the order every 12-month period that such order is in effect.
The court must notify the petitioner of the impending end of a risk protection order. The notice must be received by the petitioner at least 30 days before the date the order ends. The petitioner may, by motion, request an extension of a risk protection order at any time within 30 days before the end of the order.
Upon receipt of the motion to extend, the court is required to schedule a hearing to be held no later than 14 days after the date the order is issued. The statute allows the court to schedule a hearing "by telephone."
The respondent must be personally serviced with notice of any request for an extension of a risk protection order and the date of the hearing.
In determining whether to extend a risk protection order issued under this section, the court may consider all relevant evidence. If the court finds by clear and convincing evidence that the requirements for issuance of a risk protection order continue to be met, the court must extend the order.
If, after notice, the motion for extension is uncontested and no modification of the order is sought, the order may be extended by a motion or affidavit stating that there has been no material change in relevant circumstances since entry of the order and stating the reason for the requested extension.
The court may extend a risk protection order for a period that it deems appropriate, up to and including but not exceeding 12 months.
After a temporary or final risk protection order is issued, the court will order the respondent to surrender to the local law enforcement agency all firearms and ammunition owned by the respondent in the respondent’s custody, control, or possession. The court must also order the respondent to surrender any license to carry a concealed weapon or firearm issued under s. 790.06.
When the order is served, the law enforcement officer will immediately take any firearms and ammunition owned by the respondent or in his custody, control, or possession. The law enforcement officer will also take any license to carry a concealed weapon or firearm issued under s. 790.06, held by the respondent.
Even if the officer doesn’t take the firearm and ammunition immediately, the respondent has a duty to surrender any firearms and ammunition owned by the respondent and any license to carry a concealed weapon or firearm issued under s. 790.06, held by the respondent, in a safe manner to the control of the local law enforcement agency immediately after being served with the order by service or immediately after the hearing at which the respondent was present.
A law enforcement officer may seek a search warrant from a court of competent jurisdiction to conduct a search for firearms or ammunition owned by the respondent if the officer has probable cause to believe that there are firearms or ammunition owned by the respondent in the respondent’s custody, control, or possession which have not been surrendered.
When the firearms and ammunition are seized by law enforcement, the officer is required to issue a receipt identifying all firearms and the quantity and type of ammunition that have been surrendered, and any license surrendered and shall provide a copy of the receipt to the respondent.
Within 72 hours after service of the order, the law enforcement officer serving the order shall file the original receipt with the court and shall ensure that his or her law enforcement agency retains a copy of the receipt.
If the law enforcement officer or any other person files a sworn statement or provides testimony that the respondent has failed to comply with the surrender of firearms or ammunition owned by the respondent, as required by an order issued under this section, the court shall determine whether probable cause exists to believe that the respondent has failed to surrender all firearms or ammunition owned by the respondent in the respondent’s custody, control, or possession.
If the court finds that probable cause exists, the court must issue a warrant describing the firearms or ammunition owned by the respondent and authorizing a search of the locations where the firearms or ammunition owned by the respondent are reasonably believed to be found and the seizure of any firearms or ammunition owned by the respondent discovered pursuant to such search.
The statute specifically provides that its provisions do not “affect the ability of a law enforcement officer to remove a firearm or ammunition or license to carry a concealed weapon or concealed firearm from any person or to conduct any search and seizure for firearms or ammunition pursuant to other lawful authority.”
If a person other than the respondent claims title to any firearms or ammunition surrendered pursuant to this section and he or she is determined by the law enforcement agency to be the lawful owner of the firearm or ammunition, the firearm or ammunition shall be returned to him or her, if:
The court can order you to attend a compliance hearing. In some cases, the court iwll waive the compliance hearing if all firearms and ammunition and any license to carry concealed weapon or firearm issued to Respondent under section 790.06, Florida Statutes have been surrendered to the petitioning law enforcement agency and are no longer in the custody, control or possession of Respondent.
If not, the Petitioner and Respondent are ORDERED to appear in a courtroom for a compliance hearing to present proof of surrender to be held within three business days of the order. The Court may cancel the hearing upon a satisfactory showing that the Respondent is in compliance with the order.
All law enforcement agencies must develop policies and procedures regarding the acceptance, storage, and return of firearms, ammunition, or licenses required to be surrendered under this section.
If a risk protection order is vacated or ends without extension, a law enforcement agency holding a firearm or any ammunition owned by the respondent or a license to carry a concealed weapon or firearm issued under s. 790.06, held by the respondent, that has been surrendered or seized pursuant to this section must return the property if requested by a respondent only after:
If a risk protection order is vacated or ends without extension, the Department of Agriculture and Consumer Services, if it has suspended a license to carry a concealed weapon or firearm pursuant to this section, must reinstate such license only after confirming that the respondent is currently eligible to have a license to carry a concealed weapon or firearm pursuant to s. 790.06.
A law enforcement agency must provide notice to any family or household members of the respondent before the return of any surrendered firearm and ammunition owned by the respondent.
Any firearm and ammunition surrendered by a respondent which remains unclaimed for one (1) year by the lawful owner after an order to vacate the risk protection order shall be disposed of in accordance with the law enforcement agency’s policies and procedures for the disposal of firearms in police custody.
A respondent may elect to transfer all firearms and ammunition owned by the respondent that have been surrendered to or seized by a local law enforcement agency to another person who is willing to receive the respondent’s firearms and ammunition.
The law enforcement agency must allow such a transfer only if it is determined that the chosen recipient:
Within 24 hours after issuance of the RPO, the clerk of the court will enter any risk protection order or temporary ex parte risk protection order into the uniform case reporting system and forward a copy of the order to the appropriate law enforcement agency specified in the order.
Upon receipt of the copy of the order, the law enforcement agency shall enter the order into the Florida Crime Information Center (FCIC) and National Crime Information Center (NCIC).
The order must remain in each system for the period stated in the order, and the law enforcement agency may only remove an order from the systems which has ended or been vacated.
Entry of the order into the Florida Crime Information Center and National Crime Information Center constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any county in this state.
The order will also be sent to the Department of Agriculture and Consumer Services which will suspend the license to carry a concealed weapon or firearm.
If a risk protection order is vacated before its end date, the clerk of the court shall, on the day of the order to vacate, forward a copy of the order to the Department of Agriculture and Consumer Services and the appropriate law enforcement agency specified in the order to vacate. Upon receipt of the order, the law enforcement agency shall promptly remove the order from any computer-based system in which it was entered including the Florida Crime Information Center (FCIC) and National Crime Information Center (NCIC).
Under Section 790.401(11)(a), a person who makes a false statement, which he or she does not believe to be true, under oath in a hearing under this section in regard to any material matter commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Under Section 790.401(11)(b), person who has in his or her custody or control a firearm or any ammunition or who purchases, possesses, or receives a firearm or any ammunition with knowledge that he or she is prohibited from doing so by an order issued under this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
In many of these cases, an officer with a local police department or sheriff's office will file a Risk Protection Order (RPO) Law Enforcement Officer (LEO) Affidavit.
The affidavit will allege that the affiant is 18 years of age or older and submits the affidavit in support of obtaining a Risk Protection Order. The affidavit often alleges that there is a fear that the respondent poses a significant danger of causing personal injury to self or others by having firearms / ammo in his / her custody / control or by purchasing, possessing, or receiving fireams / ammo.
The officer will allege that the detailed allegations listed in the affidavit, including specific statements, actions or facts that the officer heard / saw, gives rise to a reasonable belief that respondent poses such danger.
Links to Additional Instructional and Informational Material
Information on Florida’s Risk Protection Order - Visit the website of the Office of the State Courts Administrator to find instructions and informational brochures, standard petitions and risk protection order forms, and a court staff handbook on the risk protection order process.
Sample Form for the RPO Petition - The standard petition and order for risk protection forms must be used after January 1, 2019, for all petitions filed and orders issued pursuant to Section 790.401, under The Risk Protection Order Act. Find instructions, brochures, forms, and a handbook prepared in consultation with representatives of gun violence prevention groups, judges, and law enforcement personnel. Find an informational brochure describing the process for obtaining, extending, and vacating a risk protection order and the relevant forms.
Other States with a Risk Protection Order - Other states with laws for risk protection orders include:
If you were served with a temporary risk protection order, then contact an experienced criminal defense attorney at Sammis Law Firm, P.A., in Tampa, FL. We also have a second office in New Port Richey, FL, in Pasco County.
After the order is served, law enforcement officers will force you to "surrender" all firearms and ammunition that you have in your custody, control or possession. We can represent you at a final hearing on a petition for a risk protection order that will be held on the date and time listed in the order. During the hearing, the court will decide whether a risk protection order should be issued.
At the final hearing, the law enforcement officer who filed the petition is required to present clear and convincing evidence to prove their allegations. You may also present evidence and hire an attorney to help you do so, however, Florida law does not provide for appointed counsel in hearings of this kind. For this reason, the court will not be able to appoint an attorney to assist you in this matter.
If a final order is entered against you, your right to have firearms or ammunition my continue to be suspended for up to one year. The court must consider and could order a mental health or chemical dependency evaluation if determined to be appropriate at the final hearing.
Call 813-250-0500 today for a consultation.
This article was last updated on Thursday, September 6, 2018.
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Meet Our Attorneys
Jason D. SammisTampa native with 15 years experience. University of Florida College of Law Graduate...Read more
Leslie M. SammisFocused on DUI Defense for more than 15 years. Former Assistant Public Defender...Read more
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