REPORT: Florida Cops Have Authority to Take Away Second Amendment Rights
Article from Reason by Jacob Sullum.
A new report on Florida’s “red flag” law claims Broward County’s experience with gun confiscation orders confirms that they prevent suicides and homicides while guaranteeing due process for people accused of posing a threat to themselves or others. But the analysis by the Giffords Law Center to Prevent Gun Violence (GLC), based on 255 police petitions filed in the year ending March 9, 2019, actually reinforces the civil liberties concerns raised by red flag laws. In particular, it shows that the judges who are supposed to decide whether someone poses enough of a threat to justify suspending his Second Amendment rights almost always defer to the conclusions reached by law enforcement agencies.
Florida, like every other state with a red flag law, allows police to obtain temporary, ex parte orders forbidding people to possess firearms. When police file such petitions, the respondent has no advance notice and no opportunity to rebut the allegations against him. The orders, which last up to 14 days, are supposed to be based on “reasonable cause to believe that the respondent poses a significant danger of causing personal injury” to himself or others “in the near future.” In the cases covered by the GLC report, police always sought ex parte orders, judges always granted them, and they did so “very quickly,” sometimes within hours.
Despite the wording of the statute, it seems that neither police nor judges are distinguishing between people who pose a risk that is “significant” (whatever that means) but not imminent and people who are apt to harm themselves or others “in the near future,” such that waiting for a hearing would be unacceptably dangerous. The routine, automatic issuance of ex parte orders means that when a respondent finally gets his day in court, the playing field is slanted sharply against him. The judge is deciding whether to maintain the presumptively protective status quo or change course and give the respondent legal access to guns he might use to kill himself or someone else.
Not surprisingly, the information obtained by the GLC shows that judges are rarely willing to take that chance. When police sought final orders, which they did in 93 percent of the cases, judges issued them 96 percent of the time in cases where the outcome was known. Final orders, which typically last a year and can be extended for another year, are supposed to be based on “clear and convincing evidence” that the respondent “poses a significant danger of causing personal injury” to himself or others. Theoretically, that test is much harder to satisfy than the “reasonable cause” standard for an ex parte order (although the threat no longer has to be “in the near future”). Yet respondents persuaded judges to restore their Second Amendment rights just 4 percent of the time.
Read the entire article at Reason.