Risk Protection Orders (RPOs)
A risk protection order is an order granted by a court that temporarily removes a person’s access to firearms in circumstances where they are a danger to themselves or others. While risk protection orders are a vital legal mechanism for improving public safety, when they are granted against a person without proper basis, they unjustifiably infringe the constitutional right to bear arms. If you have had a risk protection order granted against you, reaching out to an experienced risk protection orders attorney should be your first priority.
What Is The Purpose Of A Risk Protection Order?
Risk protection orders were introduced by legislation often referred to as Florida’s ‘red flag law’, which was enacted after a tragic mass shooting. The purpose of this legislation is to ensure that firearms can be temporarily removed from persons who appear to pose a threat to those around them or themselves, in other words, persons who exhibit ‘red flag’ behaviors. When granted in appropriate circumstances, risk protection orders play a crucial role in reducing gun violence, averting tragedies and loss of life, protecting mentally ill people at risk of self-harm, bolstering community safety, and ensuring the safety of victims of domestic violence.
However, these orders are sometimes granted because of a misunderstanding with law enforcement, on the basis of false information, or as a result of a wrongful Baker Act. A risk protection order attorney can help you challenge the order granted against you if you find yourself in this scenario.
What Are The Consequences Of A Risk Protection Order?
A risk protection order precludes the person subject to it from accessing firearms for as long as the court deems necessary, up to a maximum of a year. This period can be extended by the court if circumstances justify it. If you are subject to a risk protection order, you may not have a firearm in your possession, and any firearms and ammunition you own must be surrendered to law enforcement, together with your concealed carry license if you have one. You are also precluded from purchasing any new firearms, and background check databases will be updated to reflect this.
If a third party makes a statement under oath that you are breaching the order and have firearms in your possession, the court may issue a search warrant authorizing law enforcement to search your property. If you are found to be in breach of the risk protection order granted against you, you could be charged with committing a third-degree felony. If you believe a risk protection order has been granted against you without lawful basis, don’t take the law into your own hands: contact a risk protection order attorney to challenge the order through the proper legal procedures.
In What Circumstances Can Law Enforcement Obtain A Risk Protection Order?
Only law enforcement officers or agencies can petition the court to grant a risk protection order against someone. However, a member of the public may report a person who appears to pose a threat of gun violence to their local police station or sheriff’s office, and request that a petition be filed. There are two types of risk protection orders: temporary or emergency RPOs, and final RPOs.
Temporary RPOs
Temporary RPOs are issued on an emergency basis without a court hearing first being held. They are intended to cater to circumstances in which a person (called the respondent) poses an imminent risk of gun violence, either to themselves or others. Law enforcement will have to demonstrate in their petition that granting the RPO without a hearing is justified in the circumstances, and will have to include evidence to this end. The court may grant a temporary RPO if it finds that there is reasonable cause to believe that the respondent will pose a significant danger to themselves or others in the near future by possessing firearms or ammunition.
Temporary RPOs are granted very quickly – usually within a day of the petition being filed – but they are, as the name indicates, only temporary, and a further hearing must be scheduled at which the court will decide whether there are grounds to grant a final RPO. Temporary RPOs are granted ex parte, that is, without notice to the respondent, so if a temporary RPO has been granted against you, you will only find out when the order is served on you by law enforcement and you are requested to surrender your firearms. If this happens, you’ll need to act quickly to challenge the order at the final RPO hearing, so you should immediately contact the experienced risk protection order attorneys at Baker Act Attorneys to seek advice on your next steps.
Final RPOs
Final RPOs are RPOs that are either granted in non-emergency circumstances or after a temporary RPO has been granted and must be extended or discharged. The petition brought by law enforcement must be served on the respondent so that they have adequate opportunity to contact an attorney and prepare for the hearing, which must take place within fourteen days after the petition is filed. The standard of proof that must be met for a final RPO is higher than that of a temporary RPO: the court must find that there is clear and convincing evidence that the respondent poses a significant risk of danger to themselves or others by possessing a firearm. If the court is so satisfied, it may issue a final RPO that can remain in place for up to a year.
Evidence the court will consider before granting temporary or final RPOs
Whether a temporary or final RPO is being sought, the court is required to take relevant factual circumstances into account. Relevant factors may include the following:
- The respondent has recently, or within the past year, threatened violence or engaged in an act of violence (whether self-harm or harm against others)
- The respondent has serious mental illness
- The respondent has or has had a substance abuse disorder
- The respondent has previously been the subject of an RPO, or has previously violated an RPO or no contact order
- The respondent has recently been arrested for, or convicted of, domestic violence
- The respondent is stalking someone
- The respondent has recently threatened to use a firearm against someone or themselves, or has recklessly displayed or brandished a firearm
These factors will need to be proved through the submission of evidence, including evidence from family members, neighbors or colleagues under oath (submitted either through a written statement or through oral testimony).
How Can I Challenge My Risk Protection Order?
There are two ways in which you can challenge a risk protection order. First, if you have had a temporary RPO granted against you, you may appear at the court hearing for the final RPO and oppose law enforcement’s petition (if you have been given notice of a non-urgent RPO hearing, you may also appear at the initial hearing to argue against the petition). Second, if a final RPO has already been granted against you, you may petition the court to ‘vacate the order’ – the legal term used to remove the RPO and allow you to re-possess your firearms. Your right to bring a petition to vacate comes into existence as soon as a final RPO has been granted against you.
In both instances, hiring an experienced risk protection order attorney to represent you will greatly improve your prospects of success. If you’re opposing a final RPO, you’ll need to make a strong argument to the court explaining why an RPO should not be granted against you and will need to respond to any evidence that law enforcement has included in its petition to demonstrate that you are a danger to others (or yourself). An experienced attorney will be able to skillfully cross-examine any witnesses called by law enforcement and argue that the evidence in support of the petition is insufficient, false, or misleading. You’ll also need to build a strong body of evidence to support your arguments – your risk protection order attorney will be able to advise you on the kind of evidence you’ll need to include, such as character statements from witnesses, medical reports, and psychiatric evaluations.
If you’re petitioning to vacate an existing RPO, this evidence will need to meet an even higher threshold: you must produce clear and convincing evidence that you are no longer a threat to yourself or those around you.
Can A Baker Act Attorney Help Me Lift My Risk Protection Order?
Baker Act attorneys are excellent legal representatives for risk protection order cases because they must frequently assist clients who need to demonstrate their soundness of mind and mental capacities in cases initiated in terms of the Baker Act. They are intimately familiar with the kinds of evidence that courts will consider relevant when deciding whether a person poses a danger to themselves or others, and have a wealth of expertise in strategically using evidence, existing case law, cross-examination techniques, and oral argument to obtain favorable outcomes for their clients.
A Reputable Risk Protection Order Attorney Is Ready To Assist You
At Baker Act Attorneys, we’ve assisted countless clients facing risk protection orders to successfully defend against the proceedings being brought against them, often in circumstances where the RPO is being sought on the basis of false information. We firmly believe in protecting our clients’ second amendment rights in circumstances where limiting them would be unjust or inappropriate, and we will rigorously defend you in your RPO hearing.
If you’re the family member of someone who you think is at risk of self-harm or harming others through gun violence, we’re also here to help you evaluate whether it’s time to contact law enforcement.
If you’ve just been served a temporary RPO and don’t know where to turn, contact us today at 855-429-0074 to arrange an emergency consultation.
As Seen On
