The right to possess a firearm is enshrined in the Second Amendment of the U.S. Constitution.
Still, Florida “red-flag” laws permit the issuance of risk protection orders that impede on this right and prohibit you from possessing a firearm. Sometimes, a red-flag order is issued, even if it is based on false or exaggerated claims.
Do red-flag laws violate the Second Amendment and is there any way to have one removed if it was unfairly imposed on you?
What is a risk protection order?
A risk protection order is an order of the court that allows police to temporarily remove firearms from your possession and prevent you from purchasing them. This order can last up to one year.
A risk protection order can only be obtained by a police officer or law enforcement agency. To obtain a risk protection order, the officer must be able to prove by clear and convincing evidence that you pose a significant danger of hurting either yourself or someone else if you are in possession of a firearm.
Risk protection orders often are imposed in family law situations involving allegations of domestic violence.
Do risk protection orders violate the Second Amendment?
You may wonder if a risk protection order violates your Second Amendment right to bear arms.
Recently, a federal law that prevents people who are under a domestic violence restraining order from possessing firearms has been struck down by the Fifth Circuit U.S. Court of Appeals.
However, this ruling only applies to the three states that fall under the Fifth Circuit. Still, it could serve as the basis for cases in other states, including Florida, that argue that red-flag laws like these violate the Second Amendment.
In the meantime…
While the question of the constitutionality of red-flag laws is in limbo in most states, in the meantime, it may be possible to have your risk protection order in Florida vacated. To do so, you must file a motion to dismiss and request a hearing.
To prevail at such a hearing, you must be able to show through clear and convincing evidence that you do not pose a significant danger to yourself or others if you have a firearm in your possession. If the order is vacated, it is no longer effective, and you may be able to possess a firearm again.