Florida case shows inherent flaw with red flag laws

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Red flag laws are a particularly onerous piece of gun control legislation. While a number of states have such laws on the books, all of them have serious problems. Part of that is because they start from a presumption of guilt and then you have to essentially prove your innocence.


But there tend to be layers to problems, and red flag laws aren’t uniquely devoid of those, apparently.

Take this case from Florida recently highlighted by USA Carry:

A case in point. The Lakeland, FL police department petitioned for a Red Flag Risk Protection Order through the Florida Statute 790.401(3)(a) and (b), in May 2020. Under the Order, a man I will call “E.P.” (identity protected because it is an active case) was taken into custody and his firearms and ammunition were seized.

His Hearing on the Order was scheduled for June 12, 2020 “in the court facility located at 255 N. Broadway Ave., Bartow, FL.” This date and time were confirmed on June 3, 2020, by the police department’s attorney, and again in a court notice issued before June 12. So, E.P. arrived at the appointed date and place at 1:30 pm and waited until 3:00 pm. He testified that “he was not let into the courtroom, nor was he aware that the Hearing would take place virtually or how to attend.” The Hearing was held at a remote video conferencing event, without notice of this change to E.P.

At that hearing, the court determined, incorrectly, that E.P. had “elected not to attend” and entered a Red Flag Protection Order against him. He was prohibited from having custody or control of, or purchasing, possessing, receiving, or attempting to purchase or receive, a firearm or ammunition for up to a year, and was required to surrender any and all guns or ammo not already in the custody of the police to law enforcement. E.P. appealed the Order on the basis that it was made without giving him the chance to appear or a notice that the proceedings would take place by means other than those designated in court documents. This non-legal layman understands that a Notice of Hearing must be issued by the court, received, and followed by involved parties about the specifics given.

From May of 2020, the Order was in effect, and not until August 13, 2021, was the Order invalidated. The Appellate Court ruled that E.P.’s Due Process rights were violated by the failure to notify him that the Final Hearing would take place virtually instead of in the court facility listed in the Order. His right to be heard was deprived and the Order was reversed in his favor. I also recognize that his Second Amendment rights were violated.

Note that E.P. spent much time and money to correct the mistakes made by the government court system and to restore his inalienable rights to his gunsammo, and property… his Second Amendment and Due Process Rights.


Now, as the above-linked piece points out, for poorer people, this simply isn’t an option. E.P. was in a position to seek legal assistance, but a lot of people really just can’t do so. That means they’re stripped of their Second Amendment rights, sometimes because of a bureaucratic screw-up and not because they represent an actual danger to anyone.

E.P. did what he was supposed to, but the state didn’t. Yet because of their mistakes, he was ordered to surrender any and all firearms he might still possess, was denied the ability to even shoot a gun lawfully, and had to spend time and treasure fixing the issue.

Nothing about that is right and there are no repercussions for those who make such mistakes.

If this were the only issue with red flag laws, that would be enough, but it’s not. Red flag laws can be used by those with a grudge against the person, and we’ve seen attempts to do just that. How many have we not heard about?

This is especially troubling since red flag laws aren’t even needed. Those who represent a risk to themselves or others can be held for psychological evaluation for up to 72 hours as it is. Those planning a mass shooting can be arrested under existing laws as well.

There’s really no reason for red flag laws, and yet, here we are.

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