On March 9, 2018, Florida’s version of a red flag law went into effect. It was enacted in response to the shooting at Marjory Stoneman Douglas High School in Parkland, Florida in an attempt to prevent potentially dangerous people from owning firearms. While the intent of the law came from a good place, the use of it by Pinellas County law enforcement has been very aggressive. Law enforcement agencies are now using the law for virtually every incident that involves a gun. That means anyone who comes into contact with the police where a gun is allegedly involved is getting a Risk Protection Petition (RPO) filed against him or her. As a result, many people are having to deal with RPOs that the statute was never intended to address. And, sadly, an RPO has consequences on a person’s life.
What is a Risk Protection Order?
Risk protection orders are found under Florida Statute § 790.401. Under this statute, only law enforcement can file the petition against you. Every police department in Pinellas County has delegated the handling of RPOs to the Pinellas County Sheriff’s Office (PCSO).
The process begins with the filing of an ex parte petition. This means that PCSO brings paperwork to a Pinellas County judge and asks that a temporary RPO be issued. The petition is signed by the police officer who handled your situation. Once a judge reviews the petition and signs off on it (I am curious how many petitions, if any are not signed), it becomes a temporary RPO and is served on you. According to the statute, the hearing to determine whether the temporary order becomes a final order must take place within 14 days of the judge’s signature. So, by the time you get served with the petition, it does not leave you with much time to prepare.
What Must Be Proven in an RPO?
The standard for an RPO to be issued is whether one poses a significant danger of causing personal injury to himself or others by having a firearm. The burden of proof is on law enforcement to prove the issue by clear and convincing evidence. Clear and convincing evidence means that the evidence is highly and substantially more likely to be true than untrue. This is a medium burden of proof. A preponderance of the evidence standard is used in most civil courts. It is the lowest burden of proof in Florida. This burden is proven when the evidence is simply more likely to be true than untrue. In a criminal case, the burden of proof is the highest. This burden must be proven when the evidence establishes beyond and to the exclusion of a reasonable doubt.
At the hearing, the judge is tasked with reviewing many factors to determine if the respondent poses a significant danger of causing personal injury. The statute lists the factors for the court to consider, which include:
- A recent act or threat of violence whether or not it involved a firearm;
- An act or threat of violence within the past 12 months;
- Evidence of mental illness;
- A violation of an RPO or no contact order;
- Any prior RPOs;
- A violation of a prior RPO;
- Prior history of domestic violence;
- Whether the respondent has used or threatened to use any weapons;
- The unlawful or reckless use, display, or brandishing of a firearm;
- Recurring use or threats to use force on another, including stalking;
- Prior criminal history of violence;
- Evidence of the abuse of controlled substances or alcohol;
- Evidence of the recent acquisition of firearms or ammunition;
- Information from family and household members;
- Witness testimony relating to the matter before the court.
How Long Does an RPO Last?
If there is either a stipulation to an RPO or the judge finds that the burden has been met, the RPO will be issued for up to 1 year. As a condition, the judge can order the respondent to get a mental health or chemical dependency evaluation. Any firearms or ammunition in the possession of the respondent must be surrendered to law enforcement or to another.
Every respondent has the right to file a Motion to Vacate the RPO. At this hearing, the burden shifts to the respondent to prove by clear and convincing evidence that he or she is not a significant risk of causing personal injury to himself or to others. If the court agrees, the order is vacated and the firearms must be returned.
Law enforcement also has the right to try and extend the RPO. Within the last 30 days of the order, they have the ability to file a motion to extend the RPO for up to another year if they can show that there is still a need for the order. Fortunately, this attempt at an extension will not occur and/or the court will not grant an extension if there have been no problems during the term of the RPO.
Does a Risk Protection Order Go on My Record?
A risk protection petition is a civil proceeding, so it depends on what you consider to be your record. Some people consider only criminal charges to be a record, while others consider anything that is available to the public to be a record. An RPO is similar to a domestic violence injunction, except the petitioner is law enforcement rather than a spouse or significant other. The RPO is filed with the Pinellas County Clerk of Court and appears in the Probate Section of the Public Records. Therefore, if someone researches your name or runs a background check, the RPO will be visible. That means that background checks will pick up the existence of the RPO in your history. This applies to all background checks, including for employment, volunteering at your child’s school, or even as a coach in a recreational league. As of the date of this article, there is no mechanism to have a Risk Protection Order petition or order sealed or expunged like you can do in a criminal case. Thus, whatever is filed, is permanent and will stay that way.
Should I Hire a Lawyer for an RPO Hearing?
Most RPO hearings occur after a criminal charge and you may have already hired a lawyer to defend you for that. These charges range from aggravated assault with a firearm, felonious possession of a firearm, domestic battery, aggravated assault, and improper exhibition of a firearm. In these situations, because of the pending criminal charge, a respondent/defendant should not testify based on the risk of self incrimination. Unfortunately, without your testimony, it makes it much easier for the RPO to be granted. But, there are advantages to going forward with the hearing. You and your defense lawyer have the opportunity to hear the evidence against you and even cross-examine the witnesses. The information that you learn during the RPO hearing can then be used to your advantage in the criminal case. You and your lawyer should realize that the RPO will likely be granted, but since it would have likely been granted anyway, there is little downside to this strategy.
While an RPO petition most commonly follows an arrest for a crime, there are many other scenarios when they can occur. The most common situation is when law enforcement responds for a welfare check of an individual. If there is a report of a possible suicide and a gun or firearm is even remotely involved, the person will be Baker Acted (involuntary commitment to a hospital for a mental health evaluation) and an RPO will be filed. In this situation, there is no pending criminal charge, thus there is no risk to challenging the order. While a respondent still has the right against self incrimination, if no crime has been alleged, the worst that can happen is that the RPO gets entered. In this scenario, it may be worth it to a person to challenge the RPO to avoid it being part of the public record and subject to background checks.
What Can You Expect at an RPO Hearing?
All RPO petitions in Pinellas County are handled by the Pinellas County Sheriff’s Office. Thus, the lawyers trying to get the Order are experienced and know what to do. The RPO hearing is equivalent to a mini-trial. You can expect that the police officer that was involved will testify. If there were any witnesses to the alleged activity, that witness will be subpoenaed to be present. And, if there was a 911 call, that call will be played for the judge. The witnesses are also allowed to appear by phone pursuant to the statute. Your lawyer has the ability to cross examine the witnesses and call witnesses in your favor. You may also present any documents that you believe belie the allegations. You should anticipate that the hearing will last at least an hour.
You and your witnesses must be careful at the hearing, however. If anyone makes a false statement under oath at the hearing, he or she is subject to being arrested and charged with a third degree felony under the statute.
Ways to Defend an RPO Petition
Like any other hearing, the Pinellas County Sheriff’s Office must prove their case. Since the burden is clear and convincing evidence, this is actually a relatively high standard.
The most effective way to defend an RPO is to challenge the testimony of the witness. Obviously, if an eye witness does not show to the hearing, you will win. But, if the witness is biased or the credibility can be challenged, that will go a long way to help.
It is also important to remember that it must be proven that you pose a significant danger to yourself or to others. So, if a doctor or other mental health professional has already concluded that you are not a danger, it will be difficult for the judge to second guess that opinion. For example, if you have been committed via a Baker Act or Marchman Act and have been evaluated by a doctor, then it is likely that they have determined prior to your release that you are not a danger. If you can produce this documentation and present it at the RPO hearing, it will certainly be to your benefit. Additionally, if you have been referred to a psychiatrist or psychologist, it is possible to have him or her testify as to your condition. Obviously, this could be an expensive proposition for you, but if the dismissal of the RPO is important, it may be an expense worth taking.
How are the Pinellas County Judges Handling RPOs?
All RPO hearings are being handled by the felony (circuit) court judges on the 4th floor at the Pinellas County Justice Center on 49th St. N. on a rotating basis. Since the return hearings are required to be heard within 14 days of the granting of the temporary order, the judges are trying to fit these hearings into their already busy schedule. The amount of petitions being filed are surprisingly high and there are often multiple cases all set at the same time. This leads to pressure to rush through the hearing or to try and force an agreed upon resolution.
Law enforcement agencies in Pinellas County are aggressively filing RPO petitions. The Pinellas County Sheriff’s Office does not voluntarily dismiss them even if they are going to lose. In their eyes, they do not want to be held responsible if they dismiss a petition and then something bad happens. This mentality is shared by the judges in Pinellas County. The court will err on the side of granting the petition, so you and your attorney need to be organized and prepared.
What Happens If I Fail to Comply With an RPO Order?
If you violate the conditions of the order, you can be held in contempt of the Order as well as face criminal charges. Under the statute, purchasing, possessing, or receiving a firearm or ammunition during the term of the RPO is a third degree felony.
Contact a Pinellas County RPO Attorney
For some people, a Risk Protection Order does not have much effect on their lives. But, for any professional, person with a security clearance, or person who is concerned about the public nature of this proceeding, it is important to speak to an experienced attorney. While the Pinellas County Sheriff’s Office has tremendous power over these hearings, they can be won with the right attorney and right approach. And, as mentioned in the above, if you have a pending criminal charge, an RPO hearing can be an effective tool to help win your case. The criminal charge is ultimately much more important than the RPO.
I specialize in handling Risk Protection Order cases in Pinellas County. I am familiar with the lawyers, the judges, and the court system and am one of the few lawyers around who is familiar with these cases. If you have had an RPO petition filed against you in Pinellas County and would like to discuss the issue, please contact me for a free consultation.