Can You Refuse a Red Flag Order?
Shortly after the February 2018 high school shooting in Parkland, Florida, the state of Florida passed its first risk protection order law, also known as a “red flag law.” Since then, Florida courts have issued a total of 2,649 risk protection orders. That is nearly five orders every day since the bill became law—as of August 2019, per Tampa Bay Times.
In December 2019, Jerron Smith became the first person convicted of failing to comply with a “red flag” confiscation order in the State of Florida. According to the South Florida Sun-Sentinel, Smith was found guilty for refusing to let law enforcement confiscate his weapons under the red flag law.
Smith was previously arrested and is still facing charges stemming from an incident where he is accused of shooting at a car driven by his friend, Travis Jackson, after an argument. After his arrest, deputies convinced the Judge in Broward County that Smith should not be allowed to possess firearms. The Judge signed a Temporary Risk Protection Order. When the deputies went to Smith’s home and informed him that he must surrender his firearms, Smith refused to do so without an attorney present.
“He never had an opportunity to understand what was going on,” said Smith’s defense lawyer Jim Lewis. “He thought he had a right to have an attorney present before the order was executed.”
When a risk protection order is issued by a court, the respondent does not have the right to refuse to comply. However, the initial risk protection order issued by the courts is a temporary order. Within 14 days, in Florida (other states may vary), the court must schedule a hearing on the risk protection order. At this hearing, the respondent has the opportunity to defeat the order and to receive their firearms back. The petitioner must prove to the court by clear and convincing evidence that the respondent poses a significant danger of causing personal injury to himself, herself, or others by having in his or her custody or control, or by purchasing, possessing, or receiving a firearm or any ammunition. However, the respondent MUST comply with the initial temporary order, which Smith did not do.
Although risk protection orders are civil orders, violating them results in criminal prosecution. On December 6th, 2019, the prosecutor of Smith’s case convinced the jury of his guilt by playing a body-camera video. The video shows the deputies allegedly explaining Smith’s rights, the requirement to surrender his weapons, and noting he could have an attorney challenge the Risk Protection Order in court after he surrendered his firearms. The jury deliberated for less than an hour before returning a guilty verdict.
Broward County Circuit Judge Ernest Kollra ordered a pre-sentencing investigation for Smith, who now faces up to five years in prison for disobeying the Risk Protection Order and refusing to surrender his firearms.
What Can Gun Owners Take Away From This?
While it will be different in every state, it is important to note, when the Sheriff shows up at your door with the temporary risk protection order, you should calmly comply and surrender your weapons. Even though this is a very stressful and upsetting time, you must keep your composure and cooperate. For example, an angry or violent reaction towards the order will only bolster the case against you at the hearing on the risk protection order. The time to fight the risk protection order is in court at your hearing, not with the armed deputies on your doorstep.
As a gun owner, you must know the law. Please remember, ignorance of the law is not a defense.
Keeping gun owners armed and educated is one of our core missions at U.S. LawShield. Educational materials like videos, blog posts, and newsletters are continually produced so our members can be in the know.
Furthermore, Independent Program Attorneys are available to answer your questions regarding red flag laws or any other firearm or self-defense related questions. Contact U.S. LawShield and ask to speak to your Independent Program Attorney.
I see this as a very dangerous violation of our second amendment rights. It basically gives police and sheriff deputies a seemingly peaceful way of illegally confiscating our firearms. Who is to say that they will give them back after they take them. The government is known for saying one thing and doing another especially in this venue. I think this so called cooperation with the law is just another way of grabbing our guns, taking away our rights without starting the Civil War that just coming out to our homes and demanding our arms would begin. I strongly reject this sleight of hand tactic to disarm the population on false premisses.
As a Member, a Veteran and a Liberal, I find many of these comments amusing. The tribal hate of politics. You think Liberals don’t own firearms? Because we care about fellow human beings and support social programs, you think we don’t own weapons? I wasted forty years voting Conservative and want no more to do with the GOP. And I’ll never vote for another
What if you have a weapon in your house that is not yours? Does that gal under the law and get confiscated???
Sorry, this is unconstitutional. I know, it’s a law but that doesn’t make it constitutional. It’s a law full of good intentions, written in the aftermath of “mass shootings” (which may or may not have been staged and/or funded by the left) as a back-door maneuver to bypass the second amendment. It is extremely naive, really just downright stupid, for anyone to believe that these “Red-Flag” laws will not be abused and exploited in a desperate effort to remove the weapons from law abiding citizens!
To comply with these laws is an act of cowardice!
Will he be appealing his conviction? What was his sentence? What are the thoughts from the law professors as to opinion if SCOTUS would grant cert?
Statements: Everybody should be familiarized with guns, starting at a young age.
As per the story states, this guy shot at his friend…Friend?
Conclusion: Stupid people should never have a gun.
I am a staunch conservative. I don’t get told. I have a 180 IQ and don’t need, now will allow government to convince me they are wleays correct in it’s assumptions, nor telling me how to run my life. I am on the side of the 2nd amendmant and the only folks who know I have a gun, is the people, from whom, I bought it. If anyone shot at me, I would be in need of USLAWSHIELD…HOWZAT?
As a member I have to question the comments of some of your clients! In this circumstance it appears from the article that the action was legal. For me any reasonable firearm owner must agree that someone shooting at a “friend” is probably not a responsible firearm owner. We all agree that their are Laws we do not agree with but that is America. For me I cannot understand why we cannot agree that common sense should prevail.
If there was video of this man shoot at a mans car because of an arguement, then I support the law enforcement as this action shows that this man can loose control. Generally speaking this is a chipping away at 2nd ammendement rights.
Well Frank, I would agree with you except for the fact that at the time the RED FLAG order was issued he had not been convicted of anything. He had not been found guilty of a crime or adjudicated as mentally ill. In fact, I don’t think he had even been arrested for the alleged crime. The fact is most RED FLAG laws allow the state to take away a citizens rights first then hold a hearing to determine if it was justified. In other words you are guilty until proven innocent.
Yup kind of like pre-WW-ll Germany, those who brought you the Third Reich
In regards to Frank, because you can’t teach common sense it’s a God given right, just like stupid can’t fix that.
Red flag law. A red flag law is a gun violence prevention law that permits police or family members to petition a state court to order the temporary removal of firearms from a person who may present a danger to others or themselves. A judge makes the determination to issue the order based on statements and actions made by the gun owner in question. Well I can agree with Mr Harris, But I do believe we are missing some of the key points on the Red Flag rules. Yes it may be true that basically we are going with “unproven” allegations but we have these everyday with Law suits, arrests etc. For me as a Gun owner I would hope we have responsibility when it comes to firearms. Please don’t take this as a Anti-GUN comment just saying lets use some common sense for us as Gun owners. Remember one of the reasons we have so many issue’s with Gun rights is because of the actions of a few. Could of it been prevented with someone saying if you see something say something?
Frank, from what you stated, it sounds like you are saying the judge takes in account statements and actions of the gun owner. I think judge takes in statements of others, and only alleged actions of gun owners. Gun owner gets no say till his day in court. Actions of a few gun owners cause a lot of problems for ALL gun owners. I think comments others make about not giving up guns, while the law will be judged to be right or wrong, has no bearing on whether we comply or not.
I’m wondering how they will treat the firearms they are confiscating. How will they be handled? How will they care for them while under their control? Will the officers just throw them in the truck of their squad car? Will the firearms then be thrown in a trunk at the police station? Will the individual have the right to sue the local police or sheriff’s office for damage of property? Will the police or sheriff collect ballistic samples while the firearms are in their possession?
We are getting only one half of one side of this story. He shot at a vehicle “driven” by his “friend”. Question, who shot first? Was alcohol involved? Was friend trying to run him down? Was it “friend” who got the protection order against him in retaliation for the incident? I am a licensed concealed carry holder and don’t go unarmed anywhere except the showers. Unless the “friend” was trying “run me down” I would not have reacted that way. Did Smith (defendant) call 911? I know that the first person to call 911 is the “to be disproved authority” And YES I am a Texas Law shield member.
Ken, when ATF seized whole gun stores most of the weapons returned were unsalable. They were simply put in open barrels and left in damp warehouses. You can look up the many complaints and legal actions that were filed in a effort to recover. Unfortunately few ever saw a penny.
This convetsation is way off base. This is a poor example to debate the law. With the number of incidents regarding this law surely there is a better example to debate. The drscribed incident should have resulted in the arrest of all concerned parties to let local
law enforcement sort it out. The issue here is multi faceted. A liberal gun hating neighbor, co worker , or disgrunted. relative or ex employee can make up sime sort of ficticious allegattion and have someones guns taken. Without penatly if the accusation does not fly. Nightime no knock raids are extremely problematic particulary given the fact that the victim does not expected a visit from law enforcement. Dogs get killed by law enforcement. People get shot. Police are mistaken for home invaders as the victims suspect home invaders are claiming to be police. A death has already occurred in Maryland. Witness accounts indicate that the subject of the red flag order was shot while asleep in his bed. Withess accounts indicate that the swat team members shot him from outside the dwelling through a window. His pregnant girlfriend who was sleeping with him required treatment for window glass cuts. Police have refused to release body cam footage. Police accounts of yhe incident differ greatly from the witness accounts and have changed several times according to reports. The murder victim was supposedly prohibited from owning. gun but police have not indicated a reason for this. The raid was generated from an anonomus tip. This law provides no due process. It is predicated on the sibject being guilty until innocence is proven by subject. Evidence is oresented to judge by pilice without subject being present to provide defense with legal counsel. This law is dangerous and unconstitutional. It was ill concieved by career politicians to deny law abiding honest citizens their second amendment rights. It was quickly passed in the wake of a horrible tragedy as a knee jerk reaction. The tragedy falls on yhe cowardice of yhe sheriffs dept and their documented failure to address the active shooter situation. This dangerous and problematic law should never have been passed.The 2A community must come together snd work to overturn this law or amend it to provide due orocess to accused and severe felony charges to those who file ficticious or frivilious reports in a spiteful or personally motivatrd manner. Lets all
get together and oppose this terrible legislation