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

Opinion

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Florida “Red Flag” Abuse – Florida Man’s Rights Virtually Disappear IMG NRA-ILA

Fairfax, VA – -(Ammoland.com)- President Biden and his Attorney General, Merrick Garland, have championed “red 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 state’s “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 department’s 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 o’clock. 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 video conferencing 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 an 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 isn’t too surprising. Florida news sources analyzing RPO cases in two Florida counties found that such petitions were overwhelmingly 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 aren’t 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 court’s 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 court’s 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 court’s 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).


About 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. Visit: www.nra.org

National Rifle Association Institute For Legislative Action (NRA-ILA)

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nobodyuknow
nobodyuknow
1 month ago

Sounds like China or Russia to me. Communism on the prowl in the U.S.A.

swmft
swmft
1 month ago

time to start filing red flag complaints against judges and police

Russn8r
Russn8r
1 month ago

BS. NRA humped HR2640, disarming veterans, then feigned shock at no ‘due process’, which b-holes like YOU&NRA think is ‘adjudication’, not jury trial.

Last edited 1 month ago by Russn8r
Jose
Jose
1 month ago

It would be nice if JB & MG apply these reds laws to Chicago crime infected areas and stop abusing law abiding citizens..

Tionico
Tionico
1 month ago

It is a frightening twist of (non)logic that makes these cases “civil” rather than criminal. Seems to me our rights remain OURS until/unless we have a fair trial to weigh a named crime with an attendant punishment, that trial to be held in open court, both sides presenting their own witnesses and examining the other side’s witnessesAND their testimony, and to be decided by a JURY OF PEERS of the accused. h, and a RIGHT to be represente by egal counsel. NONE of these things happen with these illegal unconstitutoinal orders. The accused is stripped of his rights and/or liberty,… Read more »

John Dow
John Dow
1 month ago

Red flag laws have nothing to do with safety of the victim or society. If that was the purpose, they’d put the person in confinement, not his/her firearms.

If the popo took your guns and you really did mean to harm someone, you still have a myriad of lethal tools available – automobiles, kinves, clubs, gasoline, rope, etc. etc.

It’s just another means to harass gun owners, pure and simple.

Buster
Buster
1 month ago

Have faith, fellow Patriots, and be of good cheer. Divine intervention has saved America numerous times in the past, and it will again. God knows by name the enemy within. The war has begun, and the purge will not take long. This will not be a shooting war. Only God’s enemy will die of the Covid hoax, but God’s warriors are protected from the hoax. Of the Americans currently stuck now in Aphganistan, only God’s enemy will perish there – God’s warriors will be evacuated. The dead and missing in the TN floods were ALL God’s enemy – even the… Read more »

JSNMGC
JSNMGC
1 month ago
Reply to  Buster

Just when things couldn’t get any nuttier.

Last edited 1 month ago by JSNMGC
udomann
udomann
1 month ago
Reply to  Buster

Looks like the Taliban has the more powerful God on their side. Currently there are 2000 Gods to choose from, let’s pick one who benefits us more.

Buster
Buster
1 month ago
Reply to  udomann

Maybe you should move to Aphganistan?

Russn8r
Russn8r
1 month ago
Reply to  udomann

Uh huh. That’s you copy-schart Bible verses with no context, no clue what they mean.

Stag
Stag
1 month ago
Reply to  Buster

That’s some serious mental illness right there.

Bill
Bill
1 month ago
Reply to  Buster

The twins were God’s “collateral damage,” then? Wow, what a con man you are.

Buster
Buster
1 month ago
Reply to  Bill

They were not collateral damage – they were enemy. They gave their God-less parents impetus to convert America to a God-less nation.

How many infants died in Hiroshima?

JSNMGC
JSNMGC
1 month ago
Reply to  Buster

You just may take the prize here – and that’s saying something.

Buster
Buster
1 month ago
Reply to  JSNMGC

The Lord works in mysterious ways.

TexDad
TexDad
1 month ago

Dear NRA,

You’ve endorsed red flag laws. You are not the good guys here.

– Life Member

Russn8r
Russn8r
1 month ago
Reply to  TexDad

The NRA expected due process for red flag laws.” Bullshit.

TexDad
TexDad
1 month ago
Reply to  TexDad

Ah yes, I remember the damage control letter. So they have to let you be heard before the nannies get to ignore it and do whatever they want anyway.

Not good enough.

They shouldn’t have suggested red flag laws were a good thing in any case. Do we seriously trust anyone with the power to issue or execute such orders not to abuse that power?

I skipped your opening bat excrement.

Buster
Buster
1 month ago

If he ever does get his guns back, they’ll look like they were dragged the last half-mile behind a pickup truck.

Pa John
Pa John
1 month ago

Here is a DuckDuckGo search for “psych hold laws”: https://duckduckgo.com/?q=psych+hold+laws&atb=v256-1&ia=web EVERY STATE IN THE UNION already has some form of these “involuntary psych hold” laws on the books, for dealing with people with very apparent psychological problems who may be a danger to themselves and/or others. In most states this amounts to 72 hours that someone can be involuntarily held for “psychological observation” in some local hospital psych ward, but this time limit varies a bit in some states. This is NOT the same as being “committed to a mental institution” as the person is only being “involuntarily held for… Read more »

JSNMGC
JSNMGC
1 month ago
Reply to  Pa John

People who want red flag laws:

  • Donald Trump
  • Tom Cotton
  • Mitch McConnell
  • Lindsey Graham
  • Ted Cruz
  • Dan Crenshaw
  • Marco Rubio
  • Greg Abbott

And a whole lot more.

The war against liberty has been raging for some time – it’s kind of a one-sided war though.

Last edited 1 month ago by JSNMGC
JSNMGC
JSNMGC
1 month ago
Reply to  JSNMGC

For those people cheering for DeSantis, he wants more pink-haired, crazy nieces to report their firearm-owning uncles because the uncles laughed at their nieces’ crazy political posisitons:

https://www.fox13news.com/news/desantis-hopes-red-flag-laws-will-help-thwart-future-shootings

Last edited 1 month ago by JSNMGC
Russn8r
Russn8r
1 month ago
Reply to  JSNMGC

F me. I had high hopes. WTF. Who else is vaguely viable? Noem?

Russn8r
Russn8r
1 month ago
Reply to  Pa John

Normal decent people have been put in 72-hr hold due to doctors negligently prescribing inappropriate drugs, and other innocent causes of temporary, one-off, non-recurring insanity that is not their fault. Presumably “Red Flag” combined with “Fix” NICS turns them into Prohibited Persons?

Bill
Bill
1 month ago

It’s wonderful to have a court come to correct decisions! Was there no gun lawyer available to him?

Deplorable Bill
Deplorable Bill
1 month ago

Tyranny under color of law. There are laws that enslave mankind and there are laws that set men free. Red flag “laws” are of the enslavement type. Somewhere in the constitution it mentions unlawful search and/or seizure is, indeed unconstitutional. There will come a day when the “authorities” try to pull this [email protected] and the target is going to defend himself. I hope it makes the news so everyone in the same zip code can go help him. There truly was a time when the N R A was a righteous idea, sadly, because of their approval of tyrannical red… Read more »

Jaque
Jaque
1 month ago

IT WAS THE NRA WHO CHAMPIONED RED FLAG LAWS. DID THEY NOT KNOW THE ABUSES THAT WOULD TAKE PLACE, LIKE IN EVERY LAW THAT EXISTS ? I AM A LIFE (ENDOWMENT) MEMBER AND NOT PLEASED THAT THE NRA LEADERSHIP HAS TREATED MEMBERS LIKE ENDLESS MONEY POTS AS THEY MISUSE (WASTE) MEMBERS FUNDS AS A USELESS BOARD RUBBER STAMPED THE LEADERSHIPS PLANS WITHOUT READING THEM.

IS THE ILA STILL EFFECTIVE IN ITS MISSION ? I AM NOT CONVINCED IT IS. CONVINCE ME

Stag
Stag
1 month ago

Funny how these anti-2A laws that the NRA called for and endorsed are resulting in violations of people’s rights.

https://youtu.be/A8ijtVkTCCQ

Russn8r
Russn8r
1 month ago

You NRA hypocrites endorsed Carolyn McCarthy’s confiscation law that turned countless veterans into ‘prohibited persons’ – no ‘adjudication’ let alone the only true due process for taking away liberty – Fair Trial By Jury Of Peers. You scored the vote A+ & graded accordingly, later pretending to be shocked, SHOCKED, that it was ‘abused’ to crap on rights! Adding insult to injury, you ran ads on veteran sites to sucker them out of cash to “fix” the problem you created – like a “protection” racket, but the vics really think you’re protecting them. You winked at Lautenberg, which lets judges… Read more »

Last edited 1 month ago by Russn8r
JSNMGC
JSNMGC
1 month ago
Reply to  Russn8r

You’re gonna piss off the Cap’n.

Russn8r
Russn8r
1 month ago
Reply to  JSNMGC

F the Cap’n. Carolyn McCarthy’s is a form of Red Flag. So’s GCA’68, ‘Fix’ NICS etc. You can’t piss on 1st Principles & expect it not to progress. They naturally & inevitably lead to things like No Fly No Buy etc. But NRA wants to have its cake & eat it too.

“How DARE these gun grabbers push Red Flag! Only NRA should be allowed to advance prohibited personhood!”

JSNMGC
JSNMGC
1 month ago
Reply to  Russn8r

There is no reasoning with the people still donating to the NRA.

They didn’t reason themselves into their belief and there is no amount of reason that will convince them to change their belief.

Russn8r
Russn8r
1 month ago
Reply to  JSNMGC

Yes & no. Some are just unaware of NRA corruption & trea$0n. There’s still die-hard True Believers who shoot messengers but their numbers are ebbing and they’re increasingly on the indefensible defensive. 10yrs ago you couldn’t criticize Bush without being smeared. Now it’s hard to find a-h0les who openly defend him.

Last edited 1 month ago by Russn8r
JSNMGC
JSNMGC
1 month ago
Reply to  Russn8r

I agree – I should have confined my comments to the people who are active on boards like this one. There is no excuse for them to not at least do their own research when they see comments that are surprising to them.

The others read their NRA magazine, slap an NRA sticker on their Lincoln Town Car, call it good, and drive around happy like Mr. Magoo.

hoss
hoss
1 month ago

Makes a body wonder where DeSantis is in all this?

JSNMGC
JSNMGC
1 month ago
Reply to  hoss

Wouldn’t it be refreshing if he at least provided data on:

  • The number of enforcement actions that were executed per quarter by county since the law went into effect;
  • The number of subjects who were convicted of crimes;
  • The number of subjects who were committed to mental institutions to protect themselves or others (because, even though government employees followed orders to seize their guns, they could still buy gasoline, propane, matches, rope, knives, etc.)
  • The number of people who were prosecuted for false accusations and how many of those were convicted and the nature of the penalties imposed on them.
Jaque
Jaque
1 month ago
Reply to  JSNMGC

You bring up a good point. There needs to be a national Red Flag reporting system with real time updating. I dont trust the Feds with such a projects but perhaps AMMOLAND has the resources to create such a reporting system. The public must be able to view every event to see for themselves the abuses on ones rights Red Flag laws create

JSNMGC
JSNMGC
1 month ago
Reply to  Jaque

I don’t trust the Feds to do this either.

I’m fairly certain the number of “high risk-oh-my-we-have-to-take-their-guns-now” people who were commited to institutions where they couldn’t hurt themselves or anyone else was about zero. They were all left to be able to buy all sorts of other things with which they could do harm and they didn’t hurt anyone.

I’m also fairly certain that of all the false accusations, the number of people who were charged for viciously ruining someone’s life was about zero.

I’m also fairly certain the number of enforcers who refused to enforce was about zero.

Terry
Terry
1 month ago
Reply to  JSNMGC

100% – Anyone screwed up enough to have their guns confiscated is too dangerous to be running around loose anyway. Red flag is just BS. That kid that shot up Lakeland had been called in like 30 times. These laws do nothing but screw with people who are not the problem. Where I grew up these problems were taken care of by a few concerned citizens with Hickory ax handles. The main problem is that that the balls have fallen off most men. This touchy Feeley BS has ruined the US.

Russn8r
Russn8r
1 month ago
Reply to  Terry

“Anyone screwed up enough to have their guns confiscated is too dangerous to be running around loose anyway.”

When they come for yours, I hope you remember that a-hole statement throwing innocents under the bus. You will deserve no sympathy.

Last edited 1 month ago by Russn8r
Terry
Terry
1 month ago
Reply to  Russn8r

Did you even read the whole reply you ignorant dip stick. When they come for mine they will be stacked up like cordwood. I read your posts daily and am pretty sure your reading comprehension is close to non-existent. I am saying that if you are such a threat that you NEED intervention you should not be walking around anyway – like that kid in Lakeland. Why don’t you read the whole thing instead of blowing up like you usually do? And you might take in mind that I was replying to JSNMGC , not you. Please take a running… Read more »

Russn8r
Russn8r
1 month ago
Reply to  Terry

Don’t blame me if you can’t express yourself clearly, you big scary tiger-talking chatroom commando. Think they’re dumb enough to knock on your door, demand your guns & start shooting if you don’t give them up? When they come for you & yours, you won’t know it’s coming. They’ll wait till you leave home, work or grocery store, pull you over in a ‘routine’ traffic stop, etc.

I agree with the rest of the actual positions in your post despite my close to non-existent reading comprehension.

Last edited 1 month ago by Russn8r
Terry
Terry
1 month ago
Reply to  Russn8r

“When they come for you & yours, you won’t know it’s coming. They’ll wait till you leave home, work or grocery store, pull you over in a ‘routine’ traffic stop, etc.”
It won’t make any difference where they try to interdict me. I’m only slightly less armed during those situations.

“you big scary tiger-talking chatroom commando”

Sgt TL Davis
Army Grunt, 1971-1974
Guess where my chatroom was.

Russn8r
Russn8r
1 month ago
Reply to  Terry

Many sincere thanks for your service there.

You sound unrealistic on how confiscation will be done & your ability to “stack them up like cordwood” in all circumstances. Enforcers don’t want to die, so they’ll quickly learn from the natural selection of low-IQ enforcers who don’t do it sneaky, when folks are most vulnerable, to avoid resistance. Anything else is suicidal.

Other than that & “Anyone screwed up enough to have their guns confiscated is too dangerous to be running around loose anyway”, which apparently didn’t come out right, we agree on the issues you raised.

Last edited 1 month ago by Russn8r
Russn8r
Russn8r
1 month ago
Reply to  Jaque

Good idea. These sad stories are “lost like tears in rain”, to quote Roy in Bladerunner. It would be cool, but AmmoLand doesn’t even have enough staff to timely countermand the “Awaiting for moderation” purgatory it employs, with keyword algorithms seemingly chosen by commie-libs at WordPress or whatever with input by SPLC, ADL, Bloomberg & Jack Dorsey. When AmmoLand runs ads to cover costs, people whine about “gouging” & “price fixing”.

Last edited 1 month ago by Russn8r
JSNMGC
JSNMGC
1 month ago
Reply to  Russn8r

These guys are fairly good with data:

https://heyjackass.com/

Given all the trillions government employees waste, I’d be ok with hiring HJ to do the job.

Russn8r
Russn8r
1 month ago
Reply to  JSNMGC

True. Also need a page with links to all the stories, somewhere they can’t be lost.