Florida Appeals Court Upholds Red Flag Law against Constitutional Challenge

  • Date:
  • September 27, 2019

Jefferson Davis (not that one), a Gilchrist County Sheriff’s deputy, allegedly threatened to kill another deputy after he discovered that his girlfriend had been involved with the man. His colleagues sought and obtained a Risk Protection Order (“RPO”) under Florida’s new “red flag” law. Davis appealed, raising a number of challenges to the RPO entered against him and to Florida’s entire scheme. In Davis v. Gilchrist County Sheriff’s Office, Florida’s first district court of appeal rejected those challenges. This case represents one of the few rulings on the constitutionality of “red flag” laws generally and the first on Florida’s law. The Florida court joins courts in Indiana and Connecticut in upholding these types of laws against constitutional challenge.

As I’ve written about previously, “red flag” laws—also known as Extreme Risk Protection Order laws—permit law enforcement to temporarily remove firearms from an individual that a court determines is a danger to himself or others. Florida’s law, like most states, allows both temporary, emergency orders, and longer (one year) orders. Some Second Amendment advocates have argued that these laws violate a respondent’s due process rights. But, in fact, the Supreme Court has regularly recognized that emergency situations often require quick action (like a temporary, ex parte RPO) that permits postponing a hearing for a short period of time.

Florida’s appeals court recognized the procedural protections built into Florida’s law. It noted that “[t]he statute . . . requires a hearing within fourteen days of an RPO petition being filed, thus affording a respondent due process and a prompt opportunity to resist a final order.” Not only that, but:

the statute incorporates an added due process safeguard by requiring proponents to meet the heightened “clear and convincing” burden of proof standard. Compare § 790.401(3)(b), Fla. Stat. with e.g. Wash. Rev. Code. § 7.94.040(2) (requiring a showing of significant danger by the less stringent “preponderance of evidence” standard). Furthermore, the duration of the RPO may not exceed twelve months, § 790.401(3)(b), and the statute contains a mechanism whereby the respondent can request early termination of the order. § 790.401(6), Fla. Stat. Finally, the statute clearly requires the listed factors be considered within a specific context—the threat of gun violence. § 790.401(3)(b), Fla. Stat.

Davis also challenged the law as void for vagueness. He argued that “it leaves too much to the discretion of the trial court and law enforcement in determining what constitutes ‘significant danger,’ ‘relevant evidence’ [of that danger], and ‘mental illness.’” The court, however, appealed to common usage to find this language fairly specified:

In our view, there is nothing inherently vague about the terms Appellant would have us scrutinize. We interpret the word “significant” (as in “significant danger”) in a manner consistent with standard dictionary synonyms such as “noteworthy, worthy of attention and consequential; as opposed to “trivial.” “Significant” is no more or less “vague” than the word “imminent” found in the domestic violence injunction statute (§ 741.30, Fla. Stat). The same is true of the commonly used word, “relevant”.

The court’s decision will likely prove to be influential among Florida courts considering the coming challenges to Florida’s new law. As a recent Sun Sentinel report shows, Floridians have been making use of the new law to disarm those who are found to be dangerous to themselves or others.