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

Monday, August 23, 2021

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

President Biden and his Attorney General, Merrick Garland, have championedred 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 states 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 departments 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 oclock. 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 videoconferencing 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 a 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 isnt too surprising. Florida news sources analyzing RPO cases in two Florida counties found that such petitions were overwhelming 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 arent 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 courts 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 courts 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 courts 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).

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Biden Administration Bans Importation of Russian Ammunition

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Sunday, August 22, 2021

Biden Administration Bans Importation of Russian Ammunition

The Biden Administration’s Department of State announced that it will soon prohibit the importation of Russian ammunition into the United States. According to a release on the Department of State’s website, “[n]ew and pending permit applications ...

Virginia: Terry McAuliffe Wants to Ban Guns, Register Gun Owners, and Restrict Carry

News  

Monday, October 18, 2021

Virginia: Terry McAuliffe Wants to Ban Guns, Register Gun Owners, and Restrict Carry

Virginians are increasingly exercising their Second Amendment rights. NICS Checks in the commonwealth were up more than 60-percent from 2019 to 2020. From 2019 to 2021 there was a 21-percent increase in the number of ...

NYSRPA Case Exposes Biden’s Anti-Second Amendment Bias, Vindicates Opposition to Garland

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Monday, October 18, 2021

NYSRPA Case Exposes Biden’s Anti-Second Amendment Bias, Vindicates Opposition to Garland

Further evidence of Joe Biden and Attorney General Merrick Garland’s contempt for the Second Amendment has emerged in recent weeks.

The View Doesn’t Appreciate a Right

News  

Monday, October 18, 2021

The View Doesn’t Appreciate a Right

Women, and especially black women, are increasingly buying firearms for self-defense. This reality did not sit well with the hosts of a somehow still-running daytime talk show.

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Monday, June 30, 2014

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

Ohio: Senate Passes Emergency Powers Bill

Thursday, October 21, 2021

Ohio: Senate Passes Emergency Powers Bill

Yesterday, the Senate voted 23-7 to pass Senate Bill 185, to guarantee that Second Amendment rights remain protected during emergencies.

DOJ Releases Biden Gun Confiscation Order Legislation

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Wednesday, June 9, 2021

DOJ Releases Biden Gun Confiscation Order Legislation

DOJ has made clear that Garland’s selective definition of “civil rights” has no room for the Second Amendment...

Final Brief Filed in Key Second Amendment Case Before Supreme Court of the United States

Friday, October 15, 2021

Final Brief Filed in Key Second Amendment Case Before Supreme Court of the United States

The final reply brief has been filed in the NRA-ILA-supported case challenging New York’s restrictive concealed-carry-licensing regime. This was the final filing before the Supreme Court hears oral arguments on November 3rd.

The Year of the Gun – Record Number of Carry Permits in 2020

News  

Monday, October 18, 2021

The Year of the Gun – Record Number of Carry Permits in 2020

Last year was one for the record books. Not only did gun sales climb to unprecedented highs, but 40 percent of all purchasers were first-time gun buyers, estimated to be some 8.4 million people.

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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.