After the shooting at Parkland, the Florida legislature passed legislation (Marjory Stoneman Douglas High School Public Safety Act) which, in part, created a mechanism for preventing certain people from possessing or purchasing firearms. Section 790.401, Florida Statutes implements the process for a Risk Protection Order (“RPO”).
Who Can File for an RPO?
A petition for RPO must be filed by a law enforcement officer or agency, who is then considered the “petitioner”; the person upon whom they seek the RPO is the “respondent”. The petitioner must file the petition in either (1) the county where their law enforcement office is located; or (2) where the respondent resides. The petition must allege, under oath, specific statements or actions by the respondent, or other facts which establish a reasonable fear that the respondent “poses a significant danger of causing personal injury to himself or herself or others by having a firearm or any ammunition in his custody or control”.
Although the statute requires that the petitioner identify any firearms in respondent’s possession or control, it is not necessary to allege that the respondent currently has access to firearms to obtain an order of RPO. It is also not necessary that the petitioner allege that the respondent has made any threats regarding use of a firearm.
After a petition for RPO is filed, the court must hold a hearing within 14 days before issuing the RPO. However, before the hearing, the court can issue a temporary ex parte RPO (without a hearing). The respondent must be personally served with the petition, any ex parte orders and notice of the hearing. These matters are heard in the circuit court.
RPO Hearings
During an RPO hearing, the petitioner must establish, through clear and convincing evidence, that the respondent poses a significant danger of causing personal injury to himself or herself or others by having a firearm or ammunition in his or her custody or control. The rules of evidence apply, exactly as they do in a hearing on a domestic violence injunction.
In reaching its decision, the court can consider the following factors:
Recent acts/threats of violence against self/others (does not need to include a firearm)
Act/threat of violence within the 12 months
Unlawful/reckless use or display of firearms
Evidence of serious or recurring mental health issues
Violations of RPOs or no contact orders
Prior RPOs
Prior convictions (including withholds of adjudication) on domestic violence charges or crimes of violence; or evidence of past threats/physical force/stalking of another person (whether or not convicted or arrested)
Evidence of use of controlled substances or alcohol
Recent acquisition of firearms or ammunition
If the court grants the request for RPO, the order must include a statement of the grounds, how long the order will be in place, and a statement regarding the surrender of firearms. The court is also required to consider whether a mental health or chemical dependency evaluation is appropriate and, if so, must order it. The court can enter an RPO for any period of time but it cannot exceed 12 months. It is a felony of the third degree to possess a firearm or ammunition, or to purchase or receive same, for an individual who has knowledge that they are prohibited from doing so by RPO.
Early Termination/Extension of an RPO
After an RPO is granted, the respondent has one opportunity to request the RPO be terminated (“vacated”) before it is scheduled to expire. There is no specific timeframe that a person must wait, under statute, to request the termination of the order. Once a respondent files a motion to vacate the RPO, they must serve the petitioner (the law enforcement officer/agency) and the court must set a hearing between 14 and 30 days of the date of service. In that hearing, the respondent then has the burden, by clear and convincing evidence, to establish that he or she does not pose a significant danger of causing injury to himself, herself, or others by having a firearm or ammunition in his or her custody or control. The court will use the same criteria listed above in this hearing.
A petitioner may move to extend an RPO (for up to an additional 12 months) any time during the 30-day period that the RPO is scheduled to end. The court must personally serve the respondent with the motion and must hold a hearing within 14 days, using the same criteria listed above.
How Does an RPO Affect My Record?
According to statute, RPOs must be forward to both state and national crime reporting agencies and those agencies must maintain that information in their systems for the period of time the RPO is active. This means an RPO should appear on a basic criminal background check during the period it is active. Because of the way information is reported and exchanged electronically between agencies and background check companies, it is possible that an RPO continues to appear beyond its active date.
An RPO Order is also forwarded to the Department of Agriculture, who regulates firearm licensing and purchases. You should not be able to purchase a firearm or obtain any kind of firearm permit during the period an RPO is active.
The record of the court case, regardless of whether the RPO is granted or denied, may also appear on a local clerk of court’s public website and may remain subject to public record requests. A record relating to an RPO petition may not be sealed or expunged in the same manner as an arrest record.
A Risk Protection Order can have lifelong and serious consequences. An attorney with knowledge and experience can help to guide you through the process. Attorneys Lori Wurtzel and Ben Wurtzel have represented respondents in Risk Protection Order hearings, successfully petitioned to vacate RPOs and have assisted clients in better protecting their record after entry of an RPO. If you or someone you know is facing an RPO, call Wurtzel Law today for a free consultation to learn more about we can help.