Florida Appeals Court Upholds Red Flag Law against Constitutional Challenge

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.

Duke Panel Discussion on Extreme Risk Laws

Last night at Duke, we held a fantastic panel discussion with distinguished guests Professors Kristin Goss & Jeffrey Swanson and North Carolina Representative Marcia Morey to discuss Extreme Risk laws, often called Red Flag laws. These are laws that allow law enforcement to temporarily remove firearms from individuals that a court determines are a danger to themselves or others. If the person asking the court to temporarily remove the firearms proves their case, the court can enter what’s usually called an Extreme Risk Protection Order (or ERPO for short) that permits law enforcement to disarm the person who has been found dangerous.

Seventeen states and the District of Columbia currently have Extreme Risk laws on the books. More than a dozen of those have been passed in the last two years. In other words, there’s clearly momentum behind this type of legislation.

One important thing to note is that these are all state-level interventions. There is no federal Extreme Risk law, and the current proposals about federal legislation would not create one. Instead, the federal proposals are designed to provide grants to incentivize states to pass their own Extreme Risk laws that satisfy certain standards. The proposed federal legislation would also make it a federal crime for someone under an ERPO to possess guns, so that a person subject to a North Carolina ERPO couldn’t simply jump into Virginia and purchase a gun. Because the Extreme Risk laws are state-level interventions, the laws can vary quite a bit.

There are several main features of Extreme Risk laws, and the state laws differ on these dimensions. First, the states vary in who can petition for an ERPO; all states allow law enforcement to seek an ERPO. And most allow family or household members to do so in addition to law enforcement. Several expand the pool farther, such as allowing mental health professionals, school administrators, or coworkers to petition for an ERPO.

Second, the states differ in how the petitioner can get emergency relief. This often happens in what’s called an ex parte proceeding, where the petitioner shows that the person against whom the ERPO is sought (generally called the respondent) is an imminent risk of harm to himself or others; the proceeding is called “ex parte” because it can take place without the respondent. The states vary in the showing the petitioner must make to get an emergency ERPO – the majority require reasonable, probable, or good cause, some require a preponderance of the evidence (a showing of more likely than not) and others use a “clear and convincing” standard, which is generally the hardest burden to meet in civil cases. None require proof beyond a reasonable doubt, which is generally restricted to criminal cases.

Third, states differ in how long the emergency, ex parte ERPO can last before the Respondent is given a chance to respond at a hearing. The states range from permitting these ex parte orders to remain in effect for just a day or two in Maryland all the way up to 21 days in California and Oregon. The most popular number among the states is 14 days for an ex parte ERPO.

Finally, the states differ in what the petitioner must to do obtain a full ERPO, which typically lasts for six months or a year. About 2/3 of the states require the petitioner to make her case by clear and convincing evidence—again, the most demanding civil burden of proof—and the other 1/3 permit a full ERPO based on showing a preponderance of the evidence.

Extreme Risk laws have been effective at generating bipartisan consensus in many states. But there are critics who say these laws run afoul of the Second Amendment or violate the Respondent’s due process rights. Joseph and I are at work on a paper that will discuss these constitutional dimensions and plan to post about that in more depth on this blog in the coming weeks. Briefly, so long as procedural mechanisms are provided to the Respondent that meet the requirements of Constitution’s guarantee of due process, the Second Amendment arguments to temporary removal based on a finding of dangerousness are likely to fare poorly given the current state of the law.

As for due process, the Supreme Court has said that, in general, due process requires notice of the government action and an opportunity to be heard. In exceptional circumstances, the opportunity to be heard can be postponed until after the deprivation has occurred. Thus, the idea of an ex parte, emergency ERPO is consistent with the Supreme Court’s recognition that emergency situations justify quick actions necessitating seizure of property before a hearing is held.

A video from the event will be posted on the Center’s website when it becomes available.

Second Amendment Sanctuary Counties

Second Amendment sanctuary counties”—counties that refuse to enforce state regulation of firearms—represent the latest skirmish in the seemingly interminable debates over gun policy in America;  debates that, more often than not, break along geographical, cultural, and political lines:  urban versus rural; blue versus red.

Colorado recently joined over a dozen other states in passing legislation that allows law enforcement to temporarily remove firearms from an individual if a court finds the individual poses a threat to himself or to others.   These Emergency Risk Protection Orders (“ERPOs”) (sometimes called “red flag” laws) appear to be effective in reducing suicides, and have gained popularity in state legislatures since the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida in 2018.   While most gun issues are divisive, ERPOs would seem to generate a modicum of agreement—they are temporary, they involve layers of procedural protections, and in most cases they are initiated by the real fears of family members or law enforcement.   Even the National Rifle Association has endorsed some kind of temporary risk-based sequestration of firearms, at least in principle.

Notwithstanding, officials in almost half of Colorado’s sixty four counties object to Colorado’s ERPO procedure, and have vowed not to enforce it.    These counties, mostly Republican, mostly (but not exclusively) rural, have deemed themselves Second Amendment sanctuary counties, and have adopted some of the rhetoric (and terminology) of “sanctuary cities”—cities that refuse to cooperate in federal immigration enforcement.

And, like sanctuary cities, these counties use a constitutional vernacular to frame their protests.   The chair of the Weld County, Colorado commission stated that their opposition to ERPOs “isn’t an issue of safety as much as it is an issue of protecting the constitutional rights of citizens.”  Their protest has become national: Second Amendment sanctuary counties have sprung up in Oregon, Illinois, and New Mexico in the last several months.

What can we draw from these local efforts to thwart a state-wide policy regarding high-risk individuals and firearms?   First, we should understand that, thus far, no federal or state court has held that an ERPO procedure is unconstitutional.   So, even though county officials frequently cite the Constitution, they are not simply following court-issued constitutional decisions.  Instead, they may be engaging in what Bruce Ackerman referred to as “constitutional politics”—the effort to mobilize citizens in an act of constitution-making outside of the courts.

Second, for advocates of localism—the idea that local officials have the power, perhaps even the right, to govern in their community’s best interests, irrespective of state policy—sanctuary cities (for immigrants) and sanctuary counties (for gun owners) are a test of conviction.  The general rule is that, absent home rule authority, local governments are merely arms of the state, to be created, dissolved, or governed at the will of the state legislature.   Localists chafe at this arrangement.   But if the principle is that, within the bounds of constitutional limitation, local government autonomy is desirable in and of itself, then one must defend local government autonomy even when one disagrees with the resulting policy.

Finally, the phenomenon of Second Amendment sanctuary counties highlights the asymmetry of gun policymaking in the United States.   After Heller, most of the litigation and liability incentives err on the side of non-enforcement.   Colorado shields officers from liability for their good faith decision not to investigate, report, or file an application for an ERPO.  (Whether this language is broad enough to insulate an officer who refuses to enforce a duly-issued court order remains to be seen).  And there’s no general federal due process right to have restraining orders enforced by local government.   By contrast, all the liability risks (not to mention the physical risks) are on the side of enforcement.   A law officer who enforces an ERPO exposes himself to Second Amendment litigation, state constitutional litigation, and (at least according to one Second Amendment sanctuary county) civil liability under local law.

Given that the liability risk for erroneous non-enforcement of an ERPO is minimal, and the liability risk for erroneous enforcement is potentially high, it stands to reason that there could be a kind of silent Second Amendment sanctuary system already in place.