The Legislature devised the process for a risk protection order following the February 2018 massacre of 17 people at Parkland’s Marjory Stoneman Douglas High School by a gun-toting former student.
On Friday, Lakeland city commissioners heard how local law enforcement is using the law preemptively as officers and judges sort through reported threats of gun violence. A threat may end up being as benign as a frustrated kid with no gun access who makes a generic social media post or being as serious as an adult with an assault weapon, high-capacity ammo and specific plans. Or it could be a suicide threat by someone who has gun access.
David Carmichael, a Bartow lawyer with Boswell & Dunlap who serves as acting general counsel for the Lakeland Police Department as well as a legal counselor for the Polk County Sheriff’s Office and other local law enforcement agencies, said Polk, Broward and Pinellas counties have been leaders in implementing the RPO law that passed in March 2018.
While Polk County has processed more than 160 RPO petitions in the first eight months of this year and a similar number in the last nine months of 2018, those numbers are in the single digits for some of the state’s large counties, Carmichael said.
“We are treating it seriously here,” he said, acknowledging that there could be constitutional issues with Florida’s new law as well as with the similar red-flag laws in 13 other states. However, challenges to Florida’s law have yet to make it through the courts’ appeals process, he said.
“We are removing firearms; that’s a constitutional right issue. We are doing it because of things they say, which could be a free speech issue. We are doing it through search and seizure, which also is a protected right,” Carmichael said.
Still, “it is the law of the land,” he said.
Local police have taken the policy approach that “we are just presenting the evidence, we are not making the final decision. The judge makes the decision,” Carmichael said.
Lakeland Police Capt. Steve Pacheco, who is in charge of the city’s school resource officers, said that the law was passed “as a mechanism to protect our kids. We have had 10 threats we dealt with this week between us and Polk County. The two we dealt with in Lakeland both had guns. Eight of the 10 cases in the county involved guns.”
Although some are idle threats by kids who do not think about the consequences of what they are saying, each has to be taken seriously, Pacheco said.
Each threat is time-consuming from a staffing perspective, involving taking the school resource officer off campus to do a threat assessment at the home and a couple other officers to help out for three or four hours, Pacheco said.
“A lot of times the parents are cooperative. They know if their kids are having a problem with discipline or mental health issues.” And parents who have guns in the house typically secure them in a safe, turn them over to law enforcement or move them to a relative’s home, Pacheco said.
Lakeland schools started the year with eight RPOs in effect, Pacheco said. The judge can issue the weapons ban for up to a year. At the end of that time officers must decide whether to let the order expire, which would allow the respondent to have access to guns, or to request another year-long RPO, Pacheco said.
“We have to figure out what is going on with that child or that adult. We need to do quarterly checkups so we can make sure the person is in counseling and any mental health issues are being dealt with,” he said.
The Polk School Board has made counseling more accessible to troubled students by bringing on teams of mental health professionals this year, he said.
Commissioner Sara Roberts McCarley asked how many of the threats are viable. “How much of this is an immature young person who is mouthing off on social media? This seems it could put a mark on you forever. When we were young, if we were an idiot no one knew. Now it is being blasted across the universe.”
Pacheco said that some of the threats can be dealt with without an RPO if the kid puts out a vague threat on Snapchat with no real intention of violence nor access to weapons.
“But a lot of them are direct statement, such as ‘If you do this, I am getting back at you. I am going to shoot you and kill you,’ ” Pacheco said.
When Mayor Bill Mutz asked how many people readily turn over their guns when requested, Carmichael said that among 130 cases processed this year by Lakeland police and the Sheriff’s Office, all turned over their guns.
Carmichael described the RPO as a complicated process that relies upon the police officer to file a petition after gathering information about a credible threat of violence by a person who claims to have or has access to firearms.
The officer goes before a judge in an ex parte hearing, meaning only one side is presented to the judge, he said. The judge can then issue a temporary risk protection order telling the respondent to turn over all guns and ammunition and setting a date for a due process, evidentiary hearing within 14 days.
The officer then has 72 hours to report back to the judge whether the person complied with the temporary order.
Carmichael said he was shocked to find that 40 percent to 50 percent of the people turn over their firearms and ammunition, accepting the temporary RPO without going to the evidentiary hearing.
“They recognize what they did and say, ‘I said it, it was a dumb thing to say,’ ” and they turn over their weapons, he said.
Those who go to the evidentiary hearing can present evidence, technical reports, witnesses and arguments to the judge, who then decides whether or not to issue a final order for an RPO. That order can prohibit the respondent from owning, possessing or acquiring firearms and ammunition for up to 12 months and can require any concealed weapon or other gun permit be surrendered.
In a small number of cases, the judge has decided not to issue the RPO,” Carmichael said.
Once an RPO is issued, the clerk of the court records it and it becomes a matter of public record, Carmichael said.
“The teeth in this final order, is if the respondent obtains weapons within 12 months, the case moves from the civil world to the criminal world and he would potentially be guilty of a third-degree felony,” Carmichael said.
Commissioner Justin Troller asked about the stigma that may follow a person who was given a RPO. “As people understand that it becomes public record; they may say take me to the end,” Troller said.
Carmichael said that four hearings were scheduled on Friday afternoon by people who had taken that position and “I don’t blame them for that.”
Carmichael said that while he recognizes there are issues with the law, the city and other law enforcement agencies in the county are continuing to use it.
City Attorney Tim McClausland called RPO another tool in a police officer’s tool kit.