Florida 'red-flag' law eyed amid gun debate
As a national debate rages over gun laws after last month’s mass shooting at a Texas elementary school, proponents of “red-flag” policies point to a Florida law as a model for states seeking to strip deadly weapons from people who could cause harm.
The Florida law, which allows authorities to take guns from people found to pose a “significant danger” to themselves or others, has drawn pushback from Second Amendment advocates and some law-enforcement officials.
But supporters say the law --- used thousands of times since the Republican-controlled Legislature approved it in 2018 --- has saved an untold number of lives.
“There’s no question that it has prevented harm. No doubt in my mind,” Pinellas County Sheriff Bob Gualtieri told The News Service of Florida.
The measure allows law-enforcement officials to seek “risk-protection” orders from judges, who must consider a number of factors --- such as recent acts of violence or threats of violence --- before granting the requests. The orders can last up to 12 months, and officials are permitted to seek a single extension of up to another year.
Lawmakers included the red-flag measure in a sweeping school-safety law passed after a 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland that killed 14 students and three faculty members.
In Pinellas County, Gualtieri has a special unit dedicated to processing risk-protection order requests for the sheriff’s office and municipal police departments. Pinellas has had about 1,100 petitions for the orders --- the second-highest number in the state.
The orders have thwarted shootings, “active-assailant events” and domestic violence, said Gualtieri, who chairs a school-safety commission created by the Legislature after the Marjory Stoneman Douglas shooting.
“Some of these people that we have been successful in removing firearms from are scary people, are people that were in some cases hellbent on that pathway to violence, and they would have acted,” he said.
The orders allow authorities to “intervene at the earliest possible time” to “prevent something from becoming actionable,” Gualtieri added.
Most risk-protection orders are not seeking to prevent people from hurting themselves, according to Gualtieri.
“The majority of them are harm towards others. Their head’s not in the right space. They shouldn’t have guns or ammunition,” he said.
But critics of the law believe it gives the government too much power and doesn’t do enough to safeguard due-process rights.
Under the law, authorities can petition courts to temporarily remove people’s weapons for up to 14 days. If such petitions are granted, hearings must be held within two weeks on requests for risk-protection orders that can last up to a year.
Because the process isn’t criminal, people subject to risk-protection petitions are not entitled to public defenders and would have to hire private lawyers to represent them at hearings. The law also allows people to petition courts to have their guns returned before orders expire. Legal costs in risk-protection cases can range from $5,000 to $10,000, according to some experts.
When weighing requests for risk-protection orders, judges must consider whether to order mental-health evaluations. But the law doesn’t require that services be provided to people who might be experiencing mental-health crises and are suspected of being threats.
“Those type of people need to be identified, and we need to make a determination, is this somebody that we need to be making sure they don’t get guns. I agree with all of that. Why are we too scared to give them a right to counsel, and why are we too scared to include provisions in the law for them to actually get stabilization and treatment of some type?” Eric Friday, an attorney who is general counsel of the Florida Carry gun-rights organization, said in a telephone interview.
Friday and other gun-rights advocates said officials should use Florida’s Baker Act, which allows people to be involuntarily detained for up to 72 hours while mental-health evaluations are conducted, to isolate people who pose risks to themselves or others, rather than stripping them of Second Amendment rights.
But Polk County Sheriff Grady Judd said “the Baker Act is a totally different instrument” and does not allow the removal of firearms.
“So that’s why you need the RPO (risk-protection order). When we go to someone and they’re having a mental-health break, or they’ve got something real stressful and they’ve not committed a crime, they’re not a criminal. They’re just under this immense stress and have not yet acted out. I call it ‘threatened out,’” Judd told the News Service this week.
Polk County, with about 1,300 orders over the past four years, has had more risk-protection orders than anywhere else in the state.
“It’s simply a tool to keep people safe and to protect people from each other sometimes or protect people from themselves,” Judd said.
Ryan Petty, whose 14-year-old daughter Alaina was among the Parkland victims and who is a self-described “ardent Second Amendment supporter,” acknowledged that red-flag laws are problematic for some gun-rights advocates.
“The concern that most Second Amendment advocates have is it feels like due process is reversed,” he said in a phone interview.
But Petty, who also serves on the school-safety commission, defended the law.
“With regard to the due-process issues, I get it. It feels like guilty until proven innocent. I don’t know how you get around that, to be honest with you,” he said. “But it seems to me that we are balancing the rights of law-abiding gun owners against the rights of individuals who have chosen and demonstrated that they are a threat to themselves or others. That’s the distinction I make, and that’s why I’ve supported and support red-flag laws like we have in Florida.”
As of May 25, the state had 2,845 active risk-protection orders, including temporary orders, according to the Florida Department of Law Enforcement. The numbers can fluctuate daily.
Since the law passed in March 2018, 8,683 petitions for temporary 14-day orders and 5,856 petitions for orders that can last up to 12 months have been filed, and nearly all of the requests have been approved, according to records provided by the Office of the State Courts Administrator. The data show wide disparities in the number of requests among the state’s 67 counties.
“I’ll tell you unequivocally some sheriffs philosophically may be against it, so they’re not going to encourage the use of it. … Some police agencies are just lazy and take the easiest way to the end of the process. Some may not even know about it yet. At the end of the day, they could accuse me of overusing it, but I’m trying to save lives,” Judd said.
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