Questions remain on ‘red flag’ gun law
Application of state’s new risk protection order still being crafted
Within weeks of the Parkland school shooting that claimed 17 lives, a South Florida judge used a new law to grant the state’s first risk protection order, allowing police officers to temporarily seize guns and ammunition from a 56-year-old man who was deemed to be a threat.
On that same day, the Orlando Police Department petitioned for the same type of injunction against a 21-year-old University of Central Florida student who police said had made disturbing comments online and told an officer he imagined feeling the “adrenaline rush” experienced by mass shooters.
But law enforcement agencies and legal professionals are still scrambling to address the challenges of the so-called “red flag” law — developing consistent protocols and procedures to serve the orders, getting appropriate training and interpreting terms not explicitly defined in the law.
“There’s still issues,” said Leonard Dietzen, an attorney who represents the Florida Police Chiefs
Association. “It was put together very fast because the [Parkland] incident happened on Valentine’s Day and a couple of weeks later we have a new law. That’s never happened in Tallahassee.”
Under the Marjory Stoneman Douglas High School Public Safety Act, law enforcement officials can obtain a temporary risk protection order by showing evidence that people are a danger to themselves or others in the near future. Authorities also can seek a longer-term order, which lasts 12 months.
The subject of the temporary injunction has a right to challenge it in a court hearing and, if it is dismissed, the person’s rights to obtain and own weapons or ammunition are restored. On Monday, a judge dismissed a temporary order against the UCF student, Christian Velasquez.
Dietzen said he developed a 10-page “tutorial” document to help police departments train their staff, but there are still concerns among police officers about liability, and the potential danger of serving the injunctions to people with mental illnesses and access to weapons.
“This could be a SWAT situation because some people have vaults of guns,” he said. “I think everyone is looking for model policies and procedures and the whole act has to be digested first.”
UCF police Deputy Chief Carl Metzger said the agency is experiencing the “growing pains” of the new law.
“We’re all scrambling to catch up,” he said. “Instead of giving us a month or typically we’ll have several months to get our ducks in row and develop procedures. … In a perfect world, we input the data and a tool would tell us, ‘Obtain injunction if it reaches this level’ … [but] I don’t know that a tool like that exists.”
On March 13, OPD sent an email to all sworn officers explaining the main details of the law, saying it was “effective immediately” and encouraging officers to contact the department’s legal adviser if they encountered a situation in which they thought a risk protection order was necessary.
“Many times in the past, before the order, we were presented with this information that this person could be a threat or may want to harm someone,” OPD Chief John Mina said, adding that before the new law, they would have no recourse to intervene in those cases.
During a hearing last week for the petition against Velasquez, his attorney Kendra Parris said there was no existing guidance for how to interpret the law. Velasquez, who didn’t personally own any guns, had not done anything to suggest he would act on his comments, she said.
“What we’re arguing is that the statute is constitutionally vague and … also over-broad,” she said. “It all comes down to what the Legislature means by ‘threat.’ ”
Miami-Dade District Judge Steve Leifman, who serves on the Florida Supreme Court’s Mental Health subcommittee, said Parris raised an “interesting issue” in the law. Typically, when the wording of legislation is unclear, its meaning is resolved through court cases, he said.
Although the law was created to prevent future acts of violence, including mass shootings, he predicted it may be applied more often to people with a history of domestic violence or those threatening to harm themselves.
“The thing is, people with mental illness are no more dangerous than the general population. But some horrible acts happen, as we all know,” Leifman said. “I wouldn’t be surprised over time ... if these injunctions would be equal if not more important to protect people from committing suicide than from homicide.”
The new legislation also amended parts of the state’s Baker Act, which allows the involuntary commitment of people who are deemed a threat to themselves or others for mental health evaluations. Under the new version of the law, people committed under the Baker Act whose weapons have been temporarily seized have to petition a court to get them back.
Charlotte Melton, vice president of the Mental Health Association of Central Florida, said she was excited about the new law and hopes it can prevent a “revolving-door” system, in which mentally ill people were held briefly and then released, without the guarantee of further treatment.
“I think that kind of follow-up due process hasn’t been as available to the Florida Baker Act in the past and that this could trigger more follow-up care for treatment for patients,” she said.
Leifman said though the legislation was adopted more hastily than usual, it could still help address and prevent violent situations.
“Even when they [the Legislature] don’t rush, there are often unintended consequences with legislation. And there are even more unintended consequences when they do rush,” he said. “And that’s OK … We just have to be judicious.”