Citizens Speak Out Against Florida’s ‘Red Flag Law’ and ‘Risk Protection Orders’

I want to thank and congratulate the 12 members of WH 912 (3 of which are also LARC Members & 4 of which are Members of Polk REC) who came to the annual FL Congressional Delegation forum open to the public on October 7, 2019 at the Polk State Campus in the PCSO complex.

Seven made 3 minute testimonies on the unconstitutional provisions of the Marjory Stoneman Douglas HS Public Safety Act (hereafter referred to as SB 7026) and five more supported us for a total of 12 activists in attendance.

Many thanks and kudos to our lineup of speakers – in order of appearance they were Patti Zelsman, Jack Zelsman, Danny Krueger (nominated for this years WH 912 Oscar), Royal Brown III, Glynnda White, Kay Mijou, and Manny Brito. All were well rehearsed and completed their presentations within 3 min limit or a few lines (seconds) past 3 minutes. We also appreciated those present to support us – Roy and Nancy Pearce, Linda Adams, Jane Thomas, and Dy Soldwedel-Krueger.

We spoke before five of the six members of the Polk County Congressional Delegation who were Senators Albritton and Lee and Representatives Burton, Tomkow and Bell. Sen. Stargel was not present, Her Legislative Asst. Chad Davis was the recorder for the Delegation.

Glynnda White wrote the narratives for each of our 7 speakers and submitted them to Chad Davis in advance so that we would be pre-scheduled in a sequence that built upon each other and reinforced all the major points we wanted to get across. Among important points made were as follows:

1. MSDHSPSA (SB 7026) is unconstitutional and violates our 2nd, 5th and 14th Amendment Rights and, in certain circumstances may also violate our 1st and 5th Amendment Rights – each of the testimonies drove this point home with specific examples of how our rights are/can be violated.
2. School Safety and Gun Control should have been considered in two separate bills/laws and not cobbled together in one rushed 3 week time frame after the Parkland shootings.
3. The Risk Protection Order (RPO) codified within SB 7026 prescribes Ex Parte petitions resulting in seizures of firearms, ammo, accessories & permit without a Hearing which comes 14 days later at which time the respondent must prove he/she is not a threat. This is a clear violation of Due Process Rights and the Legal Precedent of “Innocent Until Proven Guilty” for law abiding citizens who might be served with an RPO. This and other provisions are not only troubling to law abiding gun owners (especially those who have undergone background checks, have no criminal record, received CCW training and issued carry permits) but are fraught with many dangers that can result in violations of our Constitutional Rights (see attachment which was given to all the Congressional Panel Members).
4. Age restrictions on owning, possessing, purchasing long guns clearly violate the 2A rights of 18-20 year olds.
5. Bottom line recommendation was to support, co-sponsor Rep Mike Hill’s HB 6003 or sponsor a companion Senate Bill to HB 6003 which will revoke the RPO and 2 A age restrictions. Reconsider a much different and constitutional Bill for potential emergency situations where firearm seizure procedures may be appropriate.

This is the kind of Grassroots effort we must all support if we want to retain our rights and not live in fear of the possibility of an unconstitutional seizure of our firearms, ammo, accessories and permit.

BACKGROUND: Risk Protection Order in SB 7026 Violates Many Rights

Stands Due Process on Its Head – RPO takes away our Due Process Rights under the 5th and 14th Amendments as well as the Fl Constitution Sec 1, Art 9 and infringed upon our 2nd Amendment (2A) rights including FL Constitution Sec 1, Art 8.

Ex parte seizure of firearms, accessories, ammo, permits (if issued), etc. before a hearing for the respondent

Triggered by False Allegations/Weak Investigations –   Allows possibility of being triggered by false accusations and possible less than thoroughly investigated information by very busy and often overworked law enforcement.

Reverses legal precedent of being innocent until proven guilty since the respondent must prove they are not a threat rather than the court proving they are in the “after the fact” (post seizure) final RPO hearing.

Premonition Not Fact – Judges making decisions to seize property based on premonition of what might happen in the future – to do so opens very dangerous avenues to ignore our rights – trading rights for safety

Impact on Innocent Respondent  – Current procedure could lead to law abiding gun owning citizens being put through the embarrassment of seizure, personal cost to hire an attorney, loss of the means to defend themselves and their families and bureaucratic nightmare of being placed on state & federal criminal data bases and the difficulties of clearing their names.

Civil Procedure Treated Like Criminal Law – Since the RPO is a civil procedure, Why then are respondents served an ex parte and Final RPO automatically reported for inclusion in the state and national criminal data bases ?  There are no provisions in the RPO section of the law to help the respondent remove their names from these lists thus setting up another potential bureaucratic nightmare for the respondent.  This is another level of punishment for the respondent as a part of the criminal system yet they were served with a civil order.

Weak Rules of Evidence  – An RPO based on a premonition should at least be supported with beyond reasonable doubt evidence not the nebulous clear and convincing evidence of a threat as stated in the law.

2A Privilege Not Right– Hearings being held after the fact of seizures has the effect of turning the 2A from a right to a privilege.

Legal Representation – During the final RPO Hearing the court is represented by prosecution/attorney(s) representing Law Enforcement (LE) petitioners whereas the respondent is not entitled to Public Defense.  If they want (and probably should retain) legal representation, the respondent must hire an attorney without reimbursement compensation should their case be vacated.

Vague language of the RPO is open to varying interpretations by different legal jurisdictions, Judges, LE.

Duty Judges – Reliable sources have reported where large numbers of RPOs are being issued, the load is too great for assigned judges to review petitions and hold hearings so case assignment can go to duty judges with little knowledge of the RPO procedures.

Contract Lawyers for LE are being hired to represent LE petitioners with an incentive for pay based on cases leading to issuing of Final RPOs.

Judges Removed  – In at least one Court Jurisdiction, the Judge assigned to RPO cases was replaced by the Chief Judge of that Jurisdiction because of complaints by LE petitioners that he was turning down too many LE petitions he judged to not be clear and convincing and did not issue an ex parte RPO.

Property Treatment – There are no specifics in the RPO process as to the condition of how the seized property of the respondent is to be handled, stored, maintained and returned nor are there stipulations within what timeframe to return property should the ex parte RPO or final RPO be overturned or vacated.  This can lead to damaged property being returned without compensation and bureaucratic delays in returning properties.

3^rd Party Transfer – The time frame of the option whereby a respondent can transfer property to be held by a 3rd party is also not determined nor prescribed.  There are unanswered questions about the strict conditions (such as passing a background check) required of the 3^rd party transferee.

•     For example if the 3d party is a CCW permit holder is this enough proof that a background check has been performed or does a new check have to be made and by whom?  Transfer requires a  sworn statement that the 3^rd party will not allow respondent access during RPO period – will the LE officer serving petition take this statement or does the 3^rd party or if not who/where do they go?
•     Based on the lack of specifics on the transfer process, it appears this transfer won’t happen before the seizure but afterwards/post seizure.  This then leads to more bureaucracy and time delays.  The transfer should be conducted before seizure so as to preempt the need for LE to take possession, store, maintain and return property e.g. this function should take place between respondent & 3rd party at the same time the petition is served to the respondent and LE conducts inventory.  This would save LE resources as well.

Unequal Penalties – The fact that an accuser found to have rendered a false statement can only be charged with a misdemeanor whereas a search warrant can be issued to determine if any of the prohibited items are in the respondent’s residence and if the respondent is found to possess any firearm or related item after the final RPO (including one firearm bullet), they can be charged with a 3rd Degree Felony. This is also absurd, amounts to a civil search and unbalances the scales of justice.

Other Rights in Jeapordy – We are concerned these violations of our 2nd, 5th and 14th Amendment rights by SB 7026 could lead to other violations such as our 1st and 4^th Amendment rights.

•   1^st Amendment Rights – Sen. Galvano’s coordination with FDLE to identify hate groups and hate speech could lead to RPOs being issued to members of these groups even though no such correlation exists in past mass shootings.
•   What will be the criteria/sources used to determine that a group is a terrorist group and that they are a threat?  Surely not the uber leftist SPLC who has placed most conservative groups on their list of terrorists?
•   Who will determine what is hate speech ?  This is fraught with the possibility of politicizing hate speech and using it against political opponents and seems more like the tactics of the Communist KGB or Nazi Gestapo than USA law.
•   There are leftist groups such as the SPLC who have falsely classified most conservative groups as hate groups.  Others have now stated the NRA is a terorist group and all members of the NRA are racists.  These types of action like the RPO run the risk of turning certain agencies of the FL Govt into “speech police” which could further jeopardize our 1st and 2nd Amendment rights.

Weakening Self Defense Laws: Then there are the intended or unintended consequences in RPOs weakening our Self Defense laws and Stand Your Ground rights – law abiding citizens will be concerned about using their firearms under lawful conditions for fear of then having an RPO issued against them while a determination of immunity from prosecution for shooting takes place.

•   Acceptance of large donations from gun control groups like Everytown USA  to PACs helping Republican Senators get re-elected also smacks of a conflict of interest and definitely conflicts with Republican values.

Civil Law Process Treated Like Criminal Law.  Why then are respondents served an ex parte and Final RPO automatically reported for inclusion in the state and national criminal data bases ?  There are no provisions in the RPO section of the law to help the respondent remove their names from these lists thus setting up another potential bureaucratic nightmare for the respondent.  This is another level of punishment for the respondent as a part of the criminal system yet they were served with a civil order.

Conclusions – All of the above stacks the deck against the respondent in an RPO case especially if the respondent has no prior criminal record, is law abiding and is the target of someone’s vendetta, anger, political attack or other such lies and distortions to make LE petitioner and Judge wary that they might be a threat and then err on the side of perceived safety rather than individual liberty.

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