After the shooting at Parkland, the Florida legislature took an unprecedented step toward gun control by passing the Risk Protection Order Act. CS/SB 7026 (2018-3, Laws of Florida) also upped the age to purchase firearms from 18 to 21 and instituted a mandatory waiting period for the purchase of firearms. The law also created a ban on “bump stocks,” a program of school mental health screenings, and the state’s new “red flag law” allowing law enforcement to petition the courts to temporarily remove firearms from those who pose a “significant danger” due to mental health crisis or other troubling behavior.
Interestingly, and perhaps ironically, the NRA came out in favor of the risk protection order scheme, although the organization is challenging the constitutionality of the age increase and waiting period. Even Senator Marco Rubio, a long-time recipient of NRA campaign funds, has joined with Democratic Senator Bill Nelson to draft federal legislation encouraging states to implement similar prophylactic firearm seizure provisions. Those voices who have insisted that gun violence boils down to a mental health issue appear to be winning – at least at first blush.
The NRA’s selective disapproval of the legislation is ironic because federal case law since the Heller decision seems to indicate that the age limit and waiting period are likely to survive scrutiny. The Risk Protection Order Act, on the other hand, is probably the most constitutionally-questionable aspect of CS/SB 7026.
The Risk Protection Order Act, located at § 790.401, Florida Statutes, creates a two-step process for seizing (or requiring the surrender of) firearms. First, there is a temporary ex parte provision allowing law enforcement to submit factual allegations permitting the circuit court to grant a seizure or surrender of firearms for up to 14 days. Within that time, a hearing on the formal risk protection order must be held, at which time the court can determine to extend the temporary order for up to 12 months.
It is important to understand the history of this provision. Prior to the passage of the Florida law, only five other states had a similar scheme: California, Oregon, Washington, Indiana, and Connecticut. While the intent of each is the same — to prevent “dangerous” people from owning firearms — the language and process of each is distinctly different. The Florida Act, which was proposed, enrolled, and signed by Governor Scott in just over two weeks, was cribbed almost word-for-word from the Washington state legislation. That legislation was passed by referendum in 2016; as yet, it has not seen a constitutional challenge in the federal courts. This lack of guidance for our Florida courts is concerning, because the language of the law is extraordinarily broad and goes well beyond mental health matters.
Section 790.401, Florida Statutes, allows the courts to remove and to prohibit the purchase of firearms when an individual poses a “significant danger” based on “any relevant evidence.” That’s it. The statute lists fifteen optional criteria that “may” be considered by the court, but the analysis is open-ended. There is no requirement that the “significant danger” be concrete, likely, or imminent. (Compare this to the Connecticut law, which requires that the respondent own firearms, lists mandatory criteria for the court’s consideration, and requires that the speculated harm be “imminent.”)
Curiously, almost all of the fifteen criteria in the Florida law would already submit an individual to some form of firearm restriction: domestic violence injunctions and convictions, stalking, previous convictions for violent acts, and threats of violence (a second degree felony in Florida). “Recent acquisition of firearms” is among the criteria, along with “corroborated substance abuse” and “serious mental illness [or] recurring mental health issues.” While the petitioner must prove its case by clear and convincing evidence (unlike the Washington statutes, which require only a preponderance of the evidence), it is unclear how much due process protection this standard provides when the court is permitted to examine “any relevant evidence,” and virtually anything can be considered relevant.
Another problematic aspect of the new law is that while it allows the petitioner to put a respondent’s mental health at issue, it provides no confidentiality protections. Without a statutory fix, Florida courts may be forced to determine confidentiality on an ad hoc basis, with each case potentially subject to motions to determine confidentiality and motions to intervene by local press agencies.
These problems were on display in the very first risk protection order petition examined by the Ninth Judicial Circuit. The case involved a young man who had made troubling statements online concerning school shooters. In two separate online statements, the man called Nikolas Cruz and Stephen Paddock “heros.” In another, he responded to the taunt, “You guys are too weak to be a school shooter” by stating, “Maybe for now I am but not forever.” Notably, the respondent had no history of violence or interaction with law enforcement. Searches of his electronic devices, home, and car turned up zero evidence of intent to commit violence. In fact, he did not even own a firearm at the time of the petition and never had in the past.
The petitioner, City of Orlando (by way of their police department, since only law enforcement agencies may petition for risk protection orders), alleged “serious mental illness” and “threats of violence” as the grounds for the petition. There were two problems, however. First, the petitioner had no access to the respondent’s mental health records for the purposes of proving mental illness (and, as it turns out, the man did not have a serious mental illness). Second, none of the statements actually constituted a “threat” under Florida or federal law, as ugly and unsettling as they may have been. In effect, the City of Orlando was asking the court to look outside the fifteen criteria listed in § 790.401 — which is explicitly permitted, but which is also what makes the law potentially subject to substantive due process challenges — and impose the risk protection order based on what the respondent was thinking.
During the hearing, the petitioner emphasized that this what was the law was designed to do: prevent violence before it ever happens. The fact that the respondent had never made true threats, committed an overt act of violence, or made any plans to do so was not a bug of the law; it was its feature. “We don’t have to wait for something bad to happen. The law is meant to stop the person before something bad happens,” the city attorney noted. As noble as the law’s intentions may have been, this sentiment treads dangerously close to the premise of Minority Report.
The petition was denied.
Psychiatrists and psychologists have acknowledged that it’s impossible to predict when a person will commit violence based on his or her mental health profile alone. And even the Baker Act requires that an involuntary commitment be based on a person’s “recent behavior” demonstrating imminent danger to self or others. Crazy or disturbing thoughts, standing alone, cannot suffice to allow the curtailment of liberty. In the context of long-standing regulations on the acquisition of firearms by the mentally ill, an adjudication of mental incompetence has always been the safeguard ensuring due process before second amendment rights are curtailed.
The new Risk Protection Order Act aims to impose second amendment and property restrictions without an adjudication of incompetence, and, in the case cited above, based on constitutionally-protected (if admittedly heinous) speech. It is questionable whether this scheme can withstand federal court scrutiny.
