Explore The NRA Universe Of Websites

APPEARS IN News

A “Red Flag” Case – Florida Man’s Rights Virtually Disappear

Monday, August 23, 2021

A “Red Flag” Case – Florida Man’s Rights Virtually Disappear

President Biden and his Attorney General, Merrick Garland, have championedred flag” laws that authorize courts to temporarily prohibit individuals from possessing or accessing guns based on unproven and uncorroborated allegations by family members, coworkers, law enforcement officers or others. A key feature of these laws is an initial order that is imposed ex parte” – without notice to the affected person, where he or she has no opportunity to attend or contest the allegations.

The model legislation prepared by the Biden Administration authorizes such an initial order, together with a concurrently-issued warrant authorizing a law enforcement agency to search the person of the respondent and any such place for firearms and to seize any firearm.” The gun ban and confiscation remain in place until a second court hearing (for a final order) occurs, which may be weeks later. Only with respect to this hearing does the person have the right to due process – to advance notice of the hearing, and to appear, challenge the basis for the order, and present their own evidence.   

The NRA, as have other critics, has voiced concerns over the lack of due process, impact on civil liberties, the flimsy standards, and a process that is slanted towards the issuance of an order. Supporters dismiss these concerns; after all, the ex parte order (and concomitant loss of gun rights and personal property) is technically temporary, and the lack of notice and an opportunity to appear are rectified during a later hearing on notice. 

A recent case in Florida illustrates one of the many issues with these orders.

On May 31, 2020, officers of the Lakeland, Florida police department petitioned for a risk protection order” under that states red flag” law against E.P. Officers took E.P. into custody and seized his firearms and ammunition. The ex parte order served on E.P. instructed him that the hearing on the final risk protection order (RPO) was scheduled for June 12, 2020, at 2:00 p.m. in the court facility located at 255 N. Broadway Ave., Bartow, FL.” This date, time and place were confirmed on June 3 by the police departments attorney, and again in a court notice issued prior to June 12.    

E.P. presented himself at the appointed date and place at 1:30 p.m. and waited until 3:00 oclock. He testified that he was not let into the courtroom, nor was he aware that the hearing would take place virtually or how to attend.” In fact, the hearing was held as a remote videoconferencing event, without notice of this change to E.P. At that hearing, the court determined, incorrectly, that E.P. had elected not to attend” and entered a RPO against him. E.P was prohibited from having custody or control of, or purchasing, possessing, receiving, or attempting to purchase or receive, a firearm or ammunition for up to a year, and was required to surrender any guns or ammunition not already in the custody of the police to law enforcement.

This isnt too surprising. Florida news sources analyzing RPO cases in two Florida counties found that such petitions were overwhelming likely to result in an order against a defendant, with judges granting the orders in 90% of all cases. Fewer than two in ten respondents had been represented by counsel – these proceedings are civil in nature, so respondents arent eligible for assistance from public defense lawyers.

E.P. appealed the order against him on the basis that it was made without giving him an opportunity to appear or notice that the proceedings would take place by means other than those designated in the courts official documents. The state law, Fla. Stat. Ann. § 790.401(3)(a) and (b), mandates that a court must issue a notice of hearing” to the affected person, and may issue a final order [u]pon notice and a hearing on the matter.”

It was not until August 13, 2021, that the courts order was invalidated. A unanimous panel of the appellate court ruled that E.P.s due process rights were violated by the failure to notify him that the final hearing would take place virtually instead of in the court facility listed in the ex parte order. Citing Florida caselaw, the court observed that [p]rocedural due process requires both fair notice and a real opportunity to be heard ... at a meaningful time and in a meaningful manner.” The lack of proper notice deprived E.P. of his right to be heard and accordingly, the order must be reversed.”

The case highlights the weakness of a model predicated on the presumption that persons named in a petition are dangerous, and that it is therefore appropriate to strip them of their rights and property without notice or a meaningful opportunity to respond until after the fact. E.P. was obligated to spend time and money to undo the trial courts blunder and even so, there is no indication in the case report that he had his property or his gun rights restored prior to the appellate court ruling.

The case is E.P. v. Lakeland Police Dept., No. 2D20-2121, 2021 WL 3573015 (Fla. Dist. Ct. App. Aug. 13, 2021).

TRENDING NOW
SCOTUS Reverses and Remands Two NRA-ILA Backed Magazine Cases

News  

Thursday, June 30, 2022

SCOTUS Reverses and Remands Two NRA-ILA Backed Magazine Cases

One week after our landmark victory in NYSRPA v. Bruen, the Supreme Court issued orders in two other NRA-ILA backed cases. Those cases, ANJRPC v. Bruck and Duncan v. Bonta, challenge New Jersey and California laws that ban magazines capable ...

“I Did That!” Biden’s Gas Crisis Creates Public Safety Crisis

News  

Tuesday, July 5, 2022

“I Did That!” Biden’s Gas Crisis Creates Public Safety Crisis

The Biden Administration is serious about making it more difficult for responsible citizens to exercise their gun rights, which is hardly surprising from the most anti-Second Amendment president in history. What is less obvious is ...

California: Legislature Passes and Newsom Signs Anti-Gun Bills

Friday, July 1, 2022

California: Legislature Passes and Newsom Signs Anti-Gun Bills

The California Legislature starts their Summer recess today, but not before a busy week full of defiant action against the recent Supreme Court victory in the NRA case of NYSRPA v. Bruen. The legislature passed several anti-gun ...

New Jersey:  Despite Historic Supreme Court Ruling Gun Bills Advance in Trenton

Friday, July 1, 2022

New Jersey: Despite Historic Supreme Court Ruling Gun Bills Advance in Trenton

On the heels of last week’s landmark Supreme Court decision in NYSRPA v. Bruen, Majority Democrats in Trenton doubled down on even more Second Amendment infringements by passing yet another package of gun bills.  This is ...

The Dominoes Begin to Fall: NJ Amends Permit Rules After Bruen

News  

Tuesday, June 28, 2022

The Dominoes Begin to Fall: NJ Amends Permit Rules After Bruen

New Jersey’s acting Attorney General, Matthew J. Platkin, issued a directive “clarifying requirements for carrying firearms in public” a day after the historic ruling by the U.S. Supreme Court in New York State Rifle & Pistol Assoc. v. ...

California Leaks Personal Data of Carry Permit Holders

News  

Wednesday, June 29, 2022

California Leaks Personal Data of Carry Permit Holders

On Monday June 27, California Attorney General Rob Bonta announced the launch of the California Department of Justice (DOJ)’s Firearms Dashboard Portal. The data tool was designed to give granular firearm transaction and Concealed Carry Weapons (CCW) permit ...

New York:  Majority Democrats Vote in Lockstep to Defy the United States Supreme Court

Friday, July 1, 2022

New York: Majority Democrats Vote in Lockstep to Defy the United States Supreme Court

Anti-Second Amendment politicians returned to Albany late this week and did the bidding of Gov. Kathy Hochul.  She called the Legislature back into an “extraordinary” session this week.  The session was anything but extraordinary. Lawmakers ...

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

NRA-ILA Asks Court to Stop the California DOJ From Releasing Gun Owners’ Personal Information After Massive Data Leak.

Thursday, June 30, 2022

NRA-ILA Asks Court to Stop the California DOJ From Releasing Gun Owners’ Personal Information After Massive Data Leak.

Earlier this week, California Attorney General Rob Bonta announced that he would be releasing firearms data via the California DOJ’s Firearms Dashboard Portal. That data contained gun owners’ names, dates of birth, gender, race, driver’s license numbers, addresses, and criminal ...

A Century of Opposition to New York’s Sullivan Law

News  

Tuesday, July 5, 2022

A Century of Opposition to New York’s Sullivan Law

On June 23, the U.S. Supreme Court struck down New York’s discretionary carry licensing regime as a violation of the Second Amendment right to bear arms in the NRA-backed case NYSRPA v. Bruen. The law at ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.