There are many critics and commentators who have given their opinion about Florida’s recently-passed statute regarding Risk Protection Orders (RPO) (otherwise known as “red flag” law) in context of whether they violate the Second Amendment, and many of the comments floating around have mischaracterized or misstated what the law states. This has caused confusion, misperception and mistakes among the public and for persons who may have been affected by the new law.
This article is intended to give a brief review of the Florida Risk Protection Order law under Florida Statute (FS) s. 790.401, et. al.
First, it should be observed that injunctions have been a part of English common law for centuries, and the American judicial system has continued the common law remedy of injunction. In this regard, FS 790.401, et. al., is not unprecedented and tracks hundreds of years of legal precedent.
Injunctions are classified as orders prohibiting or mandating certain behavior and can be either temporary or permanent in duration. In general, temporary injunctions are designed to maintain the status quo until such time as the court holds a hearing on the merits of the case to determine if a permanent injunction should be ordered. Permanent injunctions are deemed a final judgment after trial, though the word “permanent” can be misleading because, in many cases, the courts are limited in the duration of an injunction.
What Are Injunctions For?
There are three prerequisites for the issuance of an injunction:
- The inadequacy of a remedy;
- The likelihood of irreparable injury if the injunction is not granted; and
- The probability of success in the action.
Courts have long ruled that conclusory allegations of irreparable injury or inadequate legal remedy do not suffice for the issuance of an injunction. Generally, the petitioner must also show that the injury sough to be avoided will happen or be aggravated if the injunction is not granted.
How to Get an Injunction in Florida
Notice of a Petition seeking injunction must be served on all parties, notice given of the hearing on the merits, and a hearing must be held on the merits for the parties to present evidence in support or in opposition to the petition. Courts have long held that where the Petition either does not state a cause of action or has failed to meet their burden of proof beyond the preponderance of the evidence, the injunction will be denied, and Res Judicata will prevent the petitioner from getting a “second bite at the apple” unless he alleges new facts that were not addressed in the prior petition.
Common law has also allowed courts to enter temporary ex parte injunctions (meaning, where injunction is issued on a temporary basis without hearing, until such time as a hearing is held) when the petitioner demonstrates in his petition (1) that injury, loss or damage will result before the adverse party can be heard in opposition; (2) the efforts he made to give the opposing party notice; and (3) the reasons why notice should not be required.
Courts are also required to state the findings of fact that support the issuance of an injunction and how they comport to the required elements of granting injunctive relief as required by common or statutory law.
Types of Injunctions
In the United States, states have developed statutory schemes whereby courts may order injunctions. Florida, like all states, has a statute prescribing the elements of injunctive relief in general. See FL. R. Civ. P., Rule 1.610. It follows the elements and requirements under common law. Additionally, Florida legislatures have created other statutory schemes for authorizing injunctions. Common scenarios for such orders are:
- When a person is arrested for domestic violence;
- When a person is committed under the Baker Act;
- When a person is arrested for a criminal violation;
- When a person has an Order of Protection or Restraining Order entered against him;
- When a person has a No Contact Order entered against him; and
- When a person is alleged to have abused or neglected a child.
(For reference, Addendum A below includes excerpts from relevant statutes regarding the courts’ power to order injunctions, either temporary or permanent in nature.)
Risk Protection Orders
Florida’s Risk Protection Order (RPO) under FS 790.401, et. al., is similar to and tracks America’s long-held common law regarding injunctions and other statutory injunction statutes. But in many respects, RPO provides more protection to the respondent than other injunction scenarios.
Like all injunctions, a Petition must be filed alleging the necessary facts and elements for the court to have jurisdiction over the matter, but FS 790.401(2)(a) restricts the person who can file a petition to a Florida law enforcement office. No other person can file a RPO petition.
If a RPO is ordered, the respondent may not possess firearms, ammunition, or a concealed carry permit for the duration of the injunction.
Elements of a Risk Protection Order Petition
FS 790.401(2)(e) prescribes the necessary elements that must be alleged in the Petition and supported by facts sworn to under oath by the petitioner. The petitioner must:
- Allege that the respondent poses a significant danger of causing personal injury to himself or herself or others by having a firearm or any ammunition in his or her custody or control or by purchasing, possessing, or receiving a firearm or any ammunition, and must be accompanied by an affidavit made under oath stating the specific statements, actions, or facts that give rise to a reasonable fear of significant dangerous acts by the respondent;
- Identify the quantities, types, and locations of all firearms and ammunition the petitioner believes to be in the respondent’s current ownership, possession, custody, or control; and
- Identify whether there is a known existing protection order governing the respondent under s. 741.30, s. 784.046, or s. 784.0485 or under any other applicable statute.
Hearing and Notice
Like all petitions, if the elements and facts necessary to state a cause of action are not stated, the court must dismiss the petition sua sponte without a hearing being necessary. But if the petition has stated a legally-sufficient cause of action for RPO, the court shall order a hearing on the merits of the petition. The hearing must be held no later than 14 days of the date of the order, and the respondent must be given notice of the hearing.
At the hearing, the petitioner has the burden of proof at the hearing (see “Burden of Proof” below), but the respondent still has the right to present his own evidence in opposition to the Petition. If the court finds that the petitioner has met his burden of proof, the court may issue an injunction against the respondent as provided by FS 790.401, et. al.
Limits on Risk Protection Orders
If the court grants a RPO, the court cannot enjoin the respondent from possessing firearms for more than one (1) year from the date of the order, but can for less than a year. This is the same limitation that has been imposed on injunctions issued in cases of domestic violence. See In re Family Law Rules of Procedure, 663 So. 2d 1049, 1084 (Fla. 1995), order clarified, 667 So. 2d 202 (Fla. 1996) (“Any relief granted by an injunction for protection against domestic or repeat violence shall be granted for a fixed period not to exceed 1 year”).
By operation of law, the RPO automatically and unconditionally terminates at the expiration of its duration and any in case, at the expiration of one year; and at that time, the State is required to return all seized property back to the respondent without further conditions. The respondent does not have to prove anything to be entitled to the return of his property.
Extending a Risk Protection Order
The petitioner can seek an extension of the injunction, but the petitioner must, once again, meet the heightened burden of proof at a hearing, and the respondent maintains his rights to oppose the petition for extension.
The court’s authority to extend the RPO is much more limited than the court’s authority to extend injunctions in domestic violence cases. See In re Family Law Rules of Procedure, 663 So. 2d 1049, 1084 (Fla. 1995), order clarified, 667 So. 2d 202 (Fla. 1996) (“Broad discretion resides with the court to grant an extension after considering the circumstances. No specific allegations are required”).
The State’s request to extend the injunction must be made within 30 days before the natural termination of the injunction. The court can extend the injunction if the State meets its burden of proof, but not more than 1 year. Once again, at the natural expiration of the RPO, the injunction would automatically terminate, and the respondent’s rights fully restored.
Rights to a Re-Hearing
If the court grants the petition for a RPO or an extension, the respondent has the statutory right to request a hearing to vacate the RPO or the extension. The respondent may request the hearing at any time after the injunction is entered; and the court, upon receipt of the respondent’s motion, must set a hearing no sooner than 14 days and no later than 30 days after service of the motion—so no undue delays are allowed for the respondent to get a re-hearing.
At the re-hearing, the burden of proof shifts to the respondent to prove “by clear and convincing evidence that the respondent does not pose a significant danger of causing personal injury to himself or herself or others by having in his or her custody or control, purchasing, possessing, or receiving a firearm or ammunition.”
Shifting the burden to the respondent is a long-held rule of law in American jurisprudence when the government first meets its burden of proof against a person. This burden shifting happens even in criminal cases when a defendant raises an affirmative defense to the government’s allegation of a crime. One Florida appellate court explained the burden shifting this way:
- Due process requires the state to prove an accused guilty of all essential elements of a crime beyond a reasonable doubt. Art. I, § 9, Fla. Const.; Amend. 5, U.S. Const.; see also State v. Cohen, 568 So.2d 49, 51 (Fla.1990). “An affirmative defense does not concern itself with the elements of the offense at all; it concedes them,” but asserts a good excuse or reason. Id. Once raised, the defendant carries the burden of proving the defense. White v. State, 757 So.2d 542, 546 (Fla. 4th DCA 2000).
Wright v. State, 920 So. 2d 21, 24 (Fla. 4th DCA 2005) (bold added).
Even in a criminal case, where Americans get the highest level of protection against government accusation, a defendant must prove his affirmative defense at the government’s trial against him once they have met their burden of proof (beyond a reasonable doubt).
In contrast, however, under FS 790.401, et. al., the respondent gets a new and entirely separate hearing whereby he is permitted to present more evidence that the injunction should be denied. The respondent’s unconditional right to request a second hearing is very unique in civil and criminal process.
In almost all cases, a defendant or respondent is not entitled to an automatic second trial or hearing unless he can meet certain legal requirements, such as, the court made a fundamental error at trial, new material evidence was discovered that was unknown before the trial, or the State violated the defendant’s fundamental right to a fair trial. The burden for getting a new trial is high, because in American jurisprudence, we place high priority on finality and certainty in the legal process.
But for an RPO, the respondent gets an automatic right to a re-hearing without having to meet any conditions. Again, this is unusual in American jurisprudence and demonstrates how sensitive the legislature was to protecting our Second Amendment while helping society to prevent unnecessary casualties.
If the court finds that the respondent met his burden of proof at the re-hearing, the court shall vacate the injunction, and the respondent is entitled to a return of all seized firearms, ammunition, or concealed carry permit.
Appealing an Injunction in Florida
A respondent has the right to appeal the RPO where errors are made regarding the respondent’s substantive or procedural rights. This adds another layer of protection for the respondent to protect his rights.
Transfer of Firearms
FS 790.401(9) also provides that 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 pursuant to subsection (7) to another person who is willing to receive the respondent’s firearms and ammunition” as long as the recipient meets qualifications provided in subsections (a) – (c).
Ex Parte Temporary Injunction
Like all injunctive relief, courts have jurisdiction to enter a temporary ex parte injunction when specific elements are met. FS 790.401(4)(a) states,
A petitioner may request that a temporary ex parte RPO be issued before a hearing without notice to the respondent by including in the petition detailed 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.
Notice that the petitioner must have “personal knowledge” that the respondent poses a significant danger to himself or others. To what extent a court would allow an office to testify about what other persons know will be seen more closely as these RPO cases are tried in courts, but it would appear that a court cannot enter an ex parte temporary injunction when the law enforcement officer has knowledge only given to him by a lay person. But in any event, a respondent has the right to challenge any witness at a hearing if the court finds that a temporary ex party injunction should be entered.
This procedure gives an added layer of protection to prevent an ex parte injunction. In addition, the court must consider the same factors as he does in an actual RPO hearing. See FS 790.401(3)(c).
The burden of proof for a temporary ex parte order is less than the burden of proof at the hearing (see “Burden of Proof” below), which is the case for all ex parte injunction petitions, as they are meant to simply maintain the status quo until the court can hear the merits of the case at a hearing. Of course, the petitioner, again, has the burden of proof.
FS 790.401(4)(c) states the standard for issuing an ex parte injunction:
- If a court finds that 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.
If the court determines that the petitioner has stated the necessary elements obtain an ex parte injunction, “[t]he 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.” FS 790.401(4)(d).
The requirement that the court hold an ex parte hearing, in addition to a hearing on the merits, is very unique in the world of injunctions.
In most cases, a court has the authority to enter an ex parte injunction just based on the petition itself. See e.g. FS 394.463(2)(a) (“An involuntary examination may be initiated by any one of the following means: 1. A circuit or county court may enter an ex parte order stating that a person appears to meet the criteria for involuntary examination and specifying the findings on which that conclusion is based. The ex parte order for involuntary examination must be based on written or oral sworn testimony that includes specific facts that support the findings”).
But this is not so with a RPO. The court not only must review the allegations contained in the petition for legal sufficiency, but also must hold a hearing with the petitioner by the next business day after the petition has been filed. This is another layer of protecting the respondent in the process.
If the court grants the petition for ex parte injunction, the must state the following in his order:
- 1. A statement of the grounds asserted for the order;
- 2. The date the order was issued;
- 3. The address of the court in which any responsive pleading may be filed;
- 4. The date and time of the scheduled hearing;
- 5. A description of the requirements for the surrender of all firearms and ammunition that the respondent owns, under subsection (7); and
- 6. The following statement:
- “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.”
A temporary ex parte risk protection order ends upon the hearing on the risk protection order. FS 790.401(f). Thus, the temporary injunction can last no more than 30 days.
Burden of Proof
Like all injunctions sought, the petitioner (not the respondent) has the burden of proof, meaning the petitioner has the burden to introduce admissible evidence at trial that supports the allegation and meets the statutory requirements giving the court authority to grant the injunction. The respondent has no burden of proof, though he certainly has a constitutional and statutory right to present evidence to oppose the petition.
The burden of proof that the petitioner must satisfy is by “clear and convincing evidence” that the respondent “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.” FS 790.401(3)(b).
The “clear and convincing evidence” standard of proof is the highest burden of proof in civil cases, and it is higher than all other civil actions, including other kinds of injunctive relief actions.
In fact, the government has a lower burden of proof in a child dependency and neglect case under FS 39.507(1)(b) (“In a hearing on a petition in which it is alleged that the child is dependent, a preponderance of evidence will be required to establish the state of dependency”). This means, the government could meet its burden of removing a child from a parent more easily than it could in obtaining a RPO against a person.
To put it in perspective, “Clear and convincing” is the burden of proof just below the highest burden of proof standard in America, i.e. “beyond reasonable doubt”, which is reserved solely for the government’s criminal actions against persons.
“Clear and Convincing” burden of proof standard has been explained this way:
- ‘Clear and convincing evidence’ differs from the ‘greater weight of the evidence’ in that is more compelling and persuasive. ‘Clear and convincing evidence’ is evidence that is precise, explicit, lacking in confusion, in such a way that it produces a firm belief or conviction without hesitation about the matter in issue.
Todd Evans, Employee/Claimant vs. St. Lucie County Fire District, Employer, and Preferred Governmental Claim Solutions, Carrier/Servicing Agent, 2010 WL 6766189, at *4, citing Florida Standard Jury Instructions in Civil Cases 411.3, No. FC09-09 (Fla. March 4, 2010) (bold added). That the legislature established this heightened burden of proof, once again, demonstrates America’s appreciation for the Second Amendment.
Like other statutory schemes regarding injunctive relief, such as relief involving domestic violence, the Courts can consider specific factors, which are listed in FS 790.401(3)(c)(1)-(15). These factors have been well-established in American jurisprudence as relevant factors regarding allegations of harm or injury to other persons.
As one would suspect, like other civil proceedings, the Florida Rules of Evidence apply. The Rules of Evidence, of course, are based on English common law and are designed to keep “bad” evidence out and “good” evidence in. In other words, to make evidence competent, substantive, relevant and credible, so that a fair and just order can be made accordingly. FS 790.401(e) also provides that rules of evidence apply to the same extent as in a domestic violence injunction proceeding under s. 741.30. A jurist would expect this application as well for RPO because they are similar in nature and both result in the respondent not being able to possess firearms during the duration of the injunction.
FS 39.395 Detaining a child; medical or hospital personnel.—Any person in charge of a hospital or similar institution, or any physician or licensed health care professional treating a child may detain that child without the consent of the parents, caregiver, or legal custodian, whether or not additional medical treatment is required, if the circumstances are such, or if the condition of the child is such that returning the child to the care or custody of the parents, caregiver, or legal custodian presents an imminent danger to the child’s life or physical or mental health. Any such person detaining a child shall immediately notify the department, whereupon the department shall immediately begin a child protective investigation in accordance with the provisions of this chapter and shall make every reasonable effort to immediately notify the parents or legal custodian that such child has been detained. If the department determines, according to the criteria set forth in this chapter, that the child should be detained longer than 24 hours, it shall petition the court through the attorney representing the Department of Children and Families as quickly as possible and not to exceed 24 hours, for an order authorizing such custody in the same manner as if the child were placed in a shelter. The department shall attempt to avoid the placement of a child in an institution whenever possible.
FS 39.401 Taking a child alleged to be dependent into custody; law enforcement officers and authorized agents of the department.—
(1) A child may only be taken into custody:
(a) Pursuant to the provisions of this part, based upon sworn testimony, either before or after a petition is filed; or
(b) By a law enforcement officer, or an authorized agent of the department, if the officer or authorized agent has probable cause to support a finding:
1. That the child has been abused, neglected, or abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment;
2. That the parent or legal custodian of the child has materially violated a condition of placement imposed by the court; or
3. That the child has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care.
FS 39.504(4) If an injunction is issued under this section, the primary purpose of the injunction must be to protect and promote the best interests of the child, taking the preservation of the child’s immediate family into consideration.
(a) The injunction applies to the alleged or actual offender in a case of child abuse or acts of domestic violence. The conditions of the injunction shall be determined by the court, which may include ordering the alleged or actual offender to:
1. Refrain from further abuse or acts of domestic violence.
2. Participate in a specialized treatment program.
3. Limit contact or communication with the child victim, other children in the home, or any other child.
4. Refrain from contacting the child at home, school, work, or wherever the child may be found.
5. Have limited or supervised visitation with the child.
6. Vacate the home in which the child resides.
7. Comply with the terms of a safety plan implemented in the injunction pursuant to s. 39.301.
(b) Upon proper pleading, the court may award the following relief in a temporary ex parte or final injunction:
1. Exclusive use and possession of the dwelling to the caregiver or exclusion of the alleged or actual offender from the residence of the caregiver.
2. Temporary support for the child or other family members.
3. The costs of medical, psychiatric, and psychological treatment for the child incurred due to the abuse, and similar costs for other family members.
This paragraph does not preclude an adult victim of domestic violence from seeking protection for himself or herself under s. 741.30.
FS 741.30(1) There is created a cause of action for an injunction for protection against domestic violence.
(5)(a) If it appears to the court that an immediate and present danger of domestic violence exists, the court may grant a temporary injunction ex parte, pending a full hearing, and may grant such relief as the court deems proper, including an injunction:
1. Restraining the respondent from committing any acts of domestic violence.
2. Awarding to the petitioner the temporary exclusive use and possession of the dwelling that the parties share or excluding the respondent from the residence of the petitioner.
(g) A final judgment on injunction for protection against domestic violence entered pursuant to this section must, on its face, indicate that it is a violation of s. 790.233, and a first degree misdemeanor, for the respondent to have in his or her care, custody, possession, or control any firearm or ammunition.
394.467 Involuntary inpatient placement.—
(1) CRITERIA.—A person may be ordered for involuntary inpatient placement for treatment upon a finding of the court by clear and convincing evidence that:
(a) He or she has a mental illness and because of his or her mental illness:
1.a. He or she has refused voluntary inpatient placement for treatment after sufficient and conscientious explanation and disclosure of the purpose of inpatient placement for treatment; or
b. He or she is unable to determine for himself or herself whether inpatient placement is necessary; and
2.a. He or she is incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, is likely to suffer from neglect or refuse to care for himself or herself, and such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; or
b. There is substantial likelihood that in the near future he or she will inflict serious bodily harm on self or others, as evidenced by recent behavior causing, attempting, or threatening such harm; and
(b) All available less restrictive treatment alternatives that would offer an opportunity for improvement of his or her condition have been judged to be inappropriate.
18 USCA 3142(c) Release on Conditions.—
(1)If the judicial officer determines that the release described in subsection (b) of this section will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, such judicial officer shall order the pretrial release of the person—
(A)subject to the condition that the person not commit a Federal, State, or local crime during the period of release and subject to the condition that the person cooperate in the collection of a DNA sample from the person if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135a); 1 and
(B)subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community, which may include the condition that the person—
(i)remain in the custody of a designated person, who agrees to assume supervision and to report any violation of a release condition to the court, if the designated person is able reasonably to assure the judicial officer that the person will appear as required and will not pose a danger to the safety of any other person or the community;
(ii)maintain employment, or, if unemployed, actively seek employment;
(iii)maintain or commence an educational program;
(iv)abide by specified restrictions on personal associations, place of abode, or travel;
(v)avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense;
(vi)report on a regular basis to a designated law enforcement agency, pretrial services agency, or other agency;
(vii)comply with a specified curfew;
(viii)refrain from possessing a firearm, destructive device, or other dangerous weapon;
(ix)refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance, as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), without a prescription by a licensed medical practitioner;
(x)undergo available medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency, and remain in a specified institution if required for that purpose;