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Florida risk protection orders

Posted by Larry Avallone | Jan 24, 2020 | 0 Comments

Risk Protection Orders

In response to incidents of gun violence, in 2018, a new gun control measure was passed in Florida. Sometimes called a red flag law, the intention is to identify people who may be a threat to themselves or others and to seize any firearms that the person might have.  

The process begins when a Law enforcement officer files a petition for a Risk Protection Order. If they have reason to believe that a person poses a significant danger of causing personal injury to themselves or others and the person has a firearm or ammunition in their custody. Once the petition is filed, the law enforcement officer or law enforcement agency is referred to as the petitioner and the person against whom they are seeking the Risk Protection Order is referred to as the respondent.

The petition is typically filed in the county where the respondent lives. The petition must be accompanied by an affidavit made under oath that states the specific statements or facts that give rise to a reasonable fear of significant dangerous acts by the respondent. The petition must also identify the types, quantity, and location of all firearms and ammunition that the petitioner believes is owned or possessed by the respondent.

Once the court receives a petition for a Risk Protection Order, the court must hold a hearing within 14 days, and must provide notice of the hearing to the respondent. The court may issue what is known as a temporary risk protection order while waiting for the hearing. The temporary order is only valid until the day of the full hearing. The temporary order must be served on the respondent at the same time as the notice of hearing.

A hearing must be held within 14 days. At the hearing, the court must decide whether there is clear and convincing evidence that the respondent poses a significant danger of causing personal injury to themselves or others by having possession of firearms or ammunition. If the court finds that there is clear and convincing evidence for such a risk, then the court must issue a risk protection order. The risk protection order can be ordered for any amount of time that the court deems appropriate, up to a maximum of 12 months.

The law provides a list of factors that the court may consider. The listed factors include: recent acts or threats of violence, evidence of serious mental illness, violations of previous risk protection orders or injunctions, the existence of previous or current risk protection orders, prior convictions for domestic violence, use or threats to use weapons, unlawful or reckless display of firearms, recurring use or threats to use physical force against others, evidence of stalking other people, prior convictions for any crimes involving violence or threats of violence, corroborated evidence of alcohol or drug abuse, evidence of recent acquisitions of firearms or ammunition, information from family and household members, and witness testimony given under oath.

Once the court has issued a risk protection order, the respondent must surrender all of his or her firearms to law enforcement. The Court must hold a hearing within three days of issuing the risk protection order to confirm that all the firearms were surrendered.

Anyone who is found possessing firearms in violation of a risk protection order can be prosecuted for a felony of the third degree.

Since this process moves very quickly, if you have been served with notice of a risk protection order in Volusia County, it is important to immediately call a local attorney to represent you. Avallone Law P.A. is available day or night to answer your questions. 

About the Author

Larry Avallone

Larry Avallone is a Volusia County Florida based Board Certified Criminal Trial Attorney. He has been a Deputy Sheriff and a State Prosecutor and he exclusively practices criminal defense law.

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