How could a state law that violates the Second, Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution pass through Florida’s Republican-dominated legislature and then receive a Republican governor’s signature? How can the same law now be enforced vigorously every single day throughout the state without a single word of objection from civil libertarians?
The law only victimizes gun owners — that’s how.
Where’s the NRA?
Hell, where’s the ACLU?
What happened to the presumption of innocence?
Red Flag laws, also known as Risk Protection Orders, have turned gun owners into second-class citizens. The criminal justice system has been altered by the legislature to treat us differently than other folks.
Drug dealers now have more Constitutional protections than gun owners.
I do not understand how any sheriff’s deputy, police officer or special agent who has taken an oath to support and defend the Constitution can enforce these orders. They clearly violate their oath.
A stunning 95 percent of all RPOs brought before a court in Florida are signed by the judge — 95 percent!
It seems today’s judges have forgotten the immortal words of English jurist William Blackstone, who said, “It is better than 10 guilty persons escape than that one innocent suffer.”
On its face, Florida’s RPO is troubling, both constitutionally and morally. But the way they’re enforced is truly scary.
I recently received a copy of the “Risk Protection Order” policy from the Sarasota County Sheriff’s Office, as well as a copy on their online training course the deputies had to pass before enforcing the new law. The documents were obtained through a public records request. I’m told Sarasota’s policy is similar to those of other Florida law enforcement agencies.
The Sheriff’s spokeswoman added, unsolicited, that the agency has “pursued” 32 RPOs since the Risk Protection Order Act was passed in March 2018. All but one, she wrote, were accompanied by either an arrest, an injunction or an involuntary committal.
When you read the policy, two things leap out at you: the complete lack of due process for the gun owner, and the incredibly low standard of proof needed to cause someone’s guns to be seized against their will.
No proof, no problem
There are two types of RPOs in Florida: Final and Temporary.
The standard of proof needed for each is vastly different.
For a Final RPO, which bars a gun owner from possessing firearms, ammunition and a concealed weapons permit for a period of one year, a law enforcement officer must show “whether by clear and convincing evidence, the respondent (the gun owner) poses a significant danger of causing personal injury to himself or herself or others by having in his or her custody or control, or by purchasing, possessing, or receiving a firearm or any ammunition.”
The standard of proof for a Temporary RPO is “whether there is reasonable cause to believe that the respondent (the gun owner) 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 any ammunition.”
A Temporary RPO creates up to a 14-day window during which the respondent cannot possess firearms, ammunition or a concealed carry permit. During the 14 days, a hearing will be held to determine whether a Final RPO is needed.
The “reasonable cause” requirement struck me. Having been in law enforcement, I’ve heard of reasonable suspicion, and I’ve heard of probable cause. But I’ve never heard of reasonable cause.
Turns out it’s an IRS term.
Reasonable Cause is based on all the facts and circumstances in your situation. We will consider any reason which establishes that you used all ordinary business care and prudence to meet your Federal tax obligations but were nevertheless unable to do so: via IRS.gov
According the the Sarasota County Sheriff’s policy, there are 16 criteria a deputy should consider in determining whether “grounds for an RPO exist.” And the court, the document states, may consider any “relevant evidence.”
Some examples are obvious, such as domestic violence convictions, violations of previous or existing RPOs, threats of self-harm or threatening to use weapons to harm others.
Other criteria are a bit suspect:
13. Corroborated evidence of the abuse of controlled substances or alcohol by respondent.
14. Evidence of recent acquisition of firearms or ammunition by the respondent.
15. Any relevant information from family or household members concerning the respondent.
16. Witness testimony, taken while the witness is under oath, relating to the matter before the court.
If you’ve ever had one beer too many you’ve violated 13.
If you’ve recently bought a gun or a box of ammo you’ve violated 14.
If you’ve ever made your spouse angry you’ll likely be guilty of violating 15.
Anyone who doesn’t like you and who doesn’t mind perjuring themselves can get you a violation of 16.
Due process be damned
While a law enforcement officer is gathering evidence, witness statements and filling out the RPO checklist — yes, they use a checklist — the gun owner is blissfully unaware.
The first symptom that your rights are about to be massively violated will be a knock on the door.
There’s no warning. There’s no time to call a lawyer. There is no appeal.
“Service of a temporary RPO shall be made as soon as possible on any day of the week and at any time of the day or night,” the policy states. “The case agent shall not wait until business hours to affect service.”
They’re not there to talk, and they’re not there to hear your side of the story. They don’t care what you have to say. They’re there to take your guns.
“Upon making contact with the respondent being served the temporary RPO or final RPO, the deputy shall request that the respondent immediately surrender any license to carry a concealed weapon and all firearms and ammunition owned by or held by the respondent.”
If the gun owner does not comply, they’re guilty of a third-degree felony, punishable by up to five years in prison and a $5,000 fine.
If you want to turn your firearms and ammunition over to a third party, too bad. The deputy will still take them. The third party can come down to the Sheriff’s Office, pass a background check and retrieve the weapons at a later date, maybe.
If the gun owner tries the “I lost all my guns in a tragic boating accident” and the deputy suspects they’re lying. they’ll come back with a search warrant.
According to the policy: “If there is probable cause to believe that the respondent has failed to comply with the surrender of all firearms and/or ammunition after the respondent has been served with the RPO, the case agent shall apply for a search warrant that describes the firearms or ammunition owned by the respondent and describes the location(s) where the contraband is reasonably believed to be found.”
Note the language: shall apply for a search warrant. That leaves no discretion. Also note the use of the word contraband. That means you’ll never see your guns again.
It’s easier to take firearms from a law abiding gun owner than it is to seize drugs from a drug dealer.
Law enforcement goes to great lengths during a narcotics investigation. There are trashings — digging through garbage to find evidence of narcotics violations — surveillance, hand-to-hand buys, informants, pen registers, wire taps and more.
Narcotics detectives cannot simply walk up to the front door of a drug house, provide the drug dealer with a court order demanding he turn over his heroin or cocaine, and then charge him with a third-degree felony if he does not comply.
Drug dealers are afforded more legal protections than gun owners.
At some point, these RPOs will face a Supreme Court review. It has to happen. Even some of the law enforcement officers I’ve spoken to admit RPOs are on very shaky constitutional ground.
I think that’s a bit soft. They’re clearly unconstitutional — period.
They’ve been unconstitutional since they were first conceived.
Just look at their purpose as defined in the Sheriff’s Office policy: “The Risk Protection Act was created to establish a legal process to obtain a court order to restrict an individual from accessing firearms or ammunition when there is evidence that the person poses a significant danger to himself/herself or others, including significant danger as a result of a mental health crisis or violent behavior.
Third-party hearsay, social media posts, statements taken out of context, statements from 8-year-olds, a couple drinks too many or a newly purchased firearm are not evidence.
They’re common behavior, and this act weaponizes common behavior. That’s the problem.
The lack of due process exacerbates this problem.
If someone does or says something worrisome, I fully understand that law enforcement would want to question the individual — that’s part of the job. However, depriving them of their property before they’ve had a chance to explain themselves and charging them with a felony if they resist is not law enforcement. It’s tyranny.
This great country has never tolerated tyranny.
It shouldn’t start now.