Mr. Thompson et al – you deserve a big Garland for your Ledger and News Chief editorial of October 6th entitled “Red-Flag” law has red flags of its own.
My wife and I, both of whom are Constitution loving, U.S. Army veterans, and law abiding gun owners; extensively studied Florida’s new 105 page SB 7026 school safety law. We immediately saw problems and warned in writing about much of your excellent editorial’s content/concerns regarding the “Risk Protection Orders (RPOs) also referred to as “Red Flag” laws. We have also notified our Polk County Congressional Delegation of our concerns. You are 100% accurate when you wrote about Florida being a (surprising) outlier compared with the other 10 states enacting red-flag laws which “are known for harboring hostility to guns and a proclivity for stricter gun-control laws.”
This law was hastily written following great pressure on the Legislature and Governor after the evil Parkland murders. With few exceptions, much of this law would never have been passed under other circumstances. It was a knee jerk reaction to a failure of law enforcement in Broward County both at the FBI and Sheriff levels and the Broward County School Superintendent as well. Yet, to date they have not been held accountable !
Children were murdered and something substantial needed to be done quickly such as Sheriff Judd’s Sentinel/Martial program to provide protection for children in our schools by school start-up but not with these RPOs which can bring the loss of rights, financial expense and reputations of law abiding citizens who are also gun owners.
You followed with the astute comments that “Yet strict attention must be paid to how this law is executed. The RPO process is fraught with significant potential for abusing the rights of law-abiding gun owners”. How true, including potential violations of our 2nd, 4th, 5th and 14th Amendment rights. As stated above, the only part that should have been so rapidly put into place was Sheriff Judd’s Sentinel or Martial program. The rest should have been thoroughly thought through including specific, understandable, not subject to open interpretation, constitutional procedures. Three (3) weeks was not enough time to get this hugely significant legislation right. Mid-term elections should not have been a consideration in the Legislature’s decisions..
After your explanation of potential factors for issuing a RPO such as violent criminal history, threatened violence, history of mental illness or substance abuse or threats of self harm you rightfully followed with “Yet, per Florida Senate staff analysis of the law, judges may grant RPOs after considering a simple “intent” to possess guns, or “any relevant information” supplied by family members or witnesses.”
You then quoted Kendra Parris, an Orlando lawyer who has been critical of the law, as noting on her blog that this standard is way too broad writing “Virtually anything can be considered relevant” – she also noted “the risk doesn’t have to be “concrete, likely, or imminent,” and she is so right about that.
For example, it is very disturbing to me as a combat veteran that a PTS diagnosis might be considered “relevant information” here especially since 99.9999% of those veterans with PTS are non-violent and non-threatening nor should this in any way be construed as mental illness.
Many of us lawful gun owners fear cases involving angry neighbors, jealous wives or girlfriends, vindictive ex-spouses, anyone who is anti-gun and knows others with guns or has an axe to grind can call in a false report. There are countless other false scenarios which could lead to an improper seizure by an RPO including possibly even the involvement of biased liberal judges or DAs with an anti-gun agenda. To make matters worse, the seizures come first followed by a hearing which is wrong and violates 4th, 5th and 14th Amendment rights to be free from unlawful seizures and to have Due Process. Unless there is formidable evidence of an imminent threat, the hearing should occur, the evidence heard and considered and the accused being able to present evidence before all the guns, accessories and concealed carry permits (if issued) are seized.
Please see the attached articles including my Letter to the Editor which you published. Lawyers are also beginning to recognize the potential violations of 4th, 5th and 14th Amendments because of the loose way this portion of the law is written leaving itself to many various interpretations. As stated above, I was gratified to see your reference to Orlando Attorney Kendra Parris adding her voice to the chorus of those concerned about the potential violations of Constitutional rights especially of Due Process. You also referenced Lakeland Attorney Tony C. Dodd’s concerns in your front page article of Sep 30 entitled Guns under lock – he was absolutely correct in his assessment and appreciate your inclusion of his remarks in this article. I would also invite you to read what another Attorney, Cynthia Clark had to say about this law.
Speaking of this Sep 30 article. I wrote to you and reporters Mr. Chambliss and Ms. Schottelkotte about their article the same day it was published – please see email below. Unfortunately, I have not received a response in answer to the following:
“Mr. Chambiss and Ms. Schottelkotte, I would urge you to follow up on this very huge issue including information on how many of these 121 Risk Assessment Orders since Sep 17 and beyond are/were overturned and at what cost to the rights (and personal financial expense) of law abiding, actually non-threatening citizens.” Also “what is/was the bureaucratic procedure for obtaining his (the grandfather in case overturned) lawful firearms back; how big a hassle was it; how much time did it take to get their property back and what condition were his guns in upon return?”.
It should also be noted that a person ordered to appear before a NPO hearing would be smart to hire an attorney but the law gives no recourse for this person to be reimbursed for his/her legal fees if found not to be a threat. Additionally, all of the accused’s firearms, accessories and permit most likely are seized before the hearing commences which is not Due Process. Nor is it Due Process for the accused to have to prove they are not a threat and should keep their firearms rather than the Court/Prosecutor proving they are a threat and holding all their seized firearms, accessories and concealed carry permit (if issued) for 1 year leaving them defenseless to protect themselves and their families against possible criminal acts.
Again, thank you for this timely and astute editorial on the RPO portion of the Marjory Stoneman Douglas Public Safety Act and please follow up on this whole issue. Lakeland Lawyer Tony C. Dodds was insightful when he predicted that “there will be numerous challenges to its constitutionality.” With the exception of Sheriff Judd’s Sentinel or Martial Program many parts of this law including the part dealing with ex parte and RPO seizures are bad law as written.
I’m sure you know that both Senator’s Bill Nelson and (disappointingly) Marco Rubio have indicated they favor national Red Flag laws and so has anti-2A Representative Darren Soto – 9th Dist and Gov candidate Andrew Gillum. Nelson, Soto and Gillum also are on record for banning AR 15 type rifles and high capacity magazines of all kinds (rifle and pistol) and mandatory registration of all firearms.
Sir – when I went to bed at 3:30 am on November 7, 2016, I was hugely relieved that Hillary Clinton would not be my President. Among other reasons she was adamantly against my 2nd Amendment and other God given natural rights spelled out in the Bill of Rights not as rights but as prohibiting government over-reach of these rights. She would have taken action including SCOTUS appointments to do away with or weaken my Second Amendment and other rights. Now, with this Florida government over-reach, I find myself with this same kind of anxiety as a resident of the State of Florida because of this bad law. This isn’t right and must be changed !