By Royal A. Brown III
Reference the article below on Risk Protection Orders in the Lakeland Ledger. While I don’t subscribe to the Lakeland Ledger—this article was sent to me by a friend. I think it was published on July 15th, 2022. It illustrates several points we have been making about the unconstitutional Florida’s Risk Protection Order (RPO) or Red Flag Law codified within SB 7026, Marjory Stoneman Douglas Public Safety Act signed into law in June 2018 following MSDHS, school shootings in Parkland, FL.
See our points in BOLD letters below. As always, your comments are welcomed.
Polk Sheriff’s Office makes first appeal of RPO denial
by Gary White – The Ledger
Three weeks before the slaughter at an elementary school in Uvalde, Texas, a school resource deputy at Kathleen High School received an anonymous tip that a student had brought a gun to campus.
The deputy found the student, a senior, in a reading class on the afternoon of May 4. He asked the student to give him his backpack, and the student replied, “Why?”
When the 18-year-old student finally handed over the backpack, the deputy found another pack inside it that contained a Glock 42, a subcompact, semi-automatic pistol, loaded with four rounds, according to an arrest affidavit. The deputy also discovered two boxes of ammunition holding 43 rounds, the report said.
The student, Terrance Broome, made the unprompted statement, “I’m scared. Someone is trying to kill me,” according to the deputy’s report. He didn’t elaborate.
After the arrest of the student on multiple charges, the Polk County Sheriff’s Office decided that the circumstances fit the state’s guidelines for seeking a risk-protection order. Under a law passed in 2018 in response to the killing of 17 people at Marjorie Stoneman Douglas High School, law-enforcement agencies can petition a court to have weapons temporarily removed from someone deemed to be a danger to themselves or others.
Two weeks after the incident, the request for a risk-protection order went before Judge Ellen Masters, the chief judge for the 10th Judicial Circuit, based in Bartow. Masters denied the petition, writing that the allegations the PCSO presented were “insufficient to establish by clear and convincing evidence that the Respondent poses a significant danger of committing personal injury to himself or others by having in his custody or control or by purchasing, possessing or receiving, a firearm or any ammunition”
The Sheriff’s Office has appealed the denial to Florida’s Second District Court of Appeal, which has administrative offices in Lakeland and holds hearings in Tampa.
The case illustrates the limits that law-enforcement agencies face in seizing weapons from citizens under the 2018 legislation, often described as a “red-flag law.” All petitions for risk-protection orders, or RPOs, must be approved by a judge, and judges don’t automatically concur with the arguments agencies make.
Not So – the power of the RPO is almost unlimited including ignoring Due Process. Shows how bias Gary White is.
The Polk County Sheriff’s Office reported filing for 984 RPOs since the law took effect in 2018, with 858 petitions granted. That means that 12.8% have been denied or dismissed.
This means that 126 of those respondents accused of being a threat had to go thru the nightmare of receiving a no notice ex parte seizure without Due Process and were later found not to be a threat.
It also means they most likely incurred the personal expense of hiring an attorney to represent them at the Hearing which took place 2 weeks post-seizure to counter the evidence presented by the PCSO attorney before the Judge. LE attorneys have a definite edge without private attorney’s present to defend the respondent. White is mistaken when he implies they get to attend the “compliance hearing”.
The accused person (“respondent”) also must go thru a bureaucratic procedure to be removed from state and federal criminal data bases and retrieve their property without any guarantee in the law that their property be returned in same condition found.
126 people having their property seized without Due Process is far too many law abiding citizens having to go thru this stressful process which implies one or more of the following conditions: e.g. those accusing them of being threats lied; a faulty investigation was performed and/or the reviewing judge rubber stamped these petitions.
The law allows 3rd degree misdemeanor charges to be filed against an accuser who deliberately lied about the respondent being a threat. To our knowledge this part of the laws has not been prosecuted.
Nothing was stated in this article that other existing means to legally seize firearms and ammunition already were in place in FL law e.g. Baker Act, Marchman Act; Court Injunctions.
A spokesperson for Polk County Public Schools said confidentiality rules prevented the district from disclosing whether Broome had been expelled after the incident.
Broome did not appear for the court hearing, just as he had missed a previous compliance hearing after being released on May 5. John W. Lees, a lawyer for the Sheriff’s Office, sought a default order. Lees did not present any testimony, saying the petition was based on an arrest affidavit and witness statements. Masters, who has been a judge since 1999, was not persuaded of the need for an RPO.
“I don’t think I can enter this one, Mr. Lees, based on those facts, even though it’s a default, which is pretty rare,” Masters said during the hearing, according to a court transcript.
Lees added that the student had been arrested in January 2021, while a minor, on a charge of assault with a deadly weapon. That case is still pending.
Masters acknowledged that it was “a serious violation” for the student to bring a weapon to school but said she didn’t see grounds for issuing a risk-protection order.
“I cannot make a finding based on those facts that the Sheriff’s Office has presented clear and convincing evidence that the incident or the circumstances involving this respondent indicates that there is a significant danger of personal injury to the respondent or to some other person,” Masters said.
Agree with Judge Masters. This is exactly the kind of decisions which should be made. Clear and convincing evidence is very subjective and is used because the RPO is a civil and not a criminal law. However, evidence beyond a reasonable doubt should be the standard before these seizures occur.
The judge declined a request from The Ledger to discuss her decision.
Reached by phone, Broome ended the call without answering any questions.
He is charged with carrying a concealed firearm without a permit, possession of a firearm on school property and disrupting a school function, as well as possession of marijuana and drug paraphernalia.
These charges are grounds for seizing firearms using a regular Court Arrest Order – why was an RPO even necessary.
The Sheriff’s Office filed a notice of appeal with the Second District Court of Appeals on May 26. Judd said it is the first time his office has appealed a denial of a risk-protection order.
Judd emphasized that he respects Masters but said he found the denial difficult to understand. He noted that Broome did not even appear in court to contest the request for an RPO.
“Certainly, we believe that an 18-year-old high school student with a fully loaded handgun, semi-automatic, and two boxes of ammunition is a danger to all of the students in the school,” Judd said. “So we were shocked to see that the RPO was denied.”
Judd said that in some other situations a student has made a direct threat against others when the Sheriff’s Office sought to have weapons removed. He acknowledged that Broome claimed to fear for his own safety but said personal protection did not require a loaded gun and two boxes of extra ammunition.
“I’m shocked because I don’t believe she nor any other judge would want it on her conscience if he would have taken that handgun and those two boxes of shells and shot up a school,” Judd said. “Fortunately for us, another student saw something and said something and we were able to intervene before a potential shooting occurred.”
One of main arguments against using Risk Protection Orders to seize firearms is they are based on what “might occur in the future” or in Sheriff Judd’s words above “if he had taken” based on “reasonable suspicion” and not what has actually occurred. This is not a good standard to be using to take away 2nd Amendment rights or any rights for that matter.
Further, there is no evidence that any school shooting which has occurred or one that might occur in the future would be prevented by use of Red Flag Laws. This certainly was not the case in any School Shootings of the recent past. Existing laws including the Baker Act, Marchman Act and Court Injunctions should be used instead.
School shootings are a societal problem based on grossly deteriorated morals; insensitivity to violence brought on by the entertainment industry; lack of mental health intervention and; in some cases, including the FL MSDHS and TX Uvalde school shootings, a failure of LE, school districts and school administrations to take actions to either prevent or at least marginalized these active shooting events by performing their jobs. .
Some lawmakers in Florida and elsewhere have criticized red-flag laws as an infringement on Americans’ Second Amendment rights. Florida Gov. Ron DeSantis, speaking privately to supporters at a Polk County restaurant in April, said he would have vetoed the law if he had been governor when it passed under his predecessor, fellow Republican Rick Scott.
Rick Scott was under pressure to sign this bill into law and knew he was leaving office soon. He should have declared a special session to give legislator’s more time other than the 3 weeks remaining in regular session to consider the Bill and all its consequences before signing it. Although outgoing FL Senate President RINO Wilton Simpson has taken credit for writing this bill the fact is the 48 pages covering the Risk Protection Order are almost an exact lift from the existing laws of Blue States like Oregon.
A caveat is that not all of this law is bad. We fully support the part establishing Sheriff Judd’s Sentinel or Guardian Program requiring a trained, armed LE officer or security guard in every school. We further support the follow on Law signed by Gov DeSantis, SB 7030 which authorized trained school officials/teachers to be armed as additional security. Unfortunately, few school districts including PCPS have availed themselves of this opportunity to even better protect our children.
Judd has repeatedly defended the use of RPOs as a way to prevent potential violence and said he doesn’t know what to expect from the Second District Court of Appeals.
“We need to find out what the courts believe is the parameters of the RPO,” Judd said. “And I think that will give either direction to us or it will give direction to the Circuit Court judge.”
We are hopeful the 2nd District Court of Appeals will rule in favor of Judge Master’s decision.
©Royal A. Brown, III. All rights reserved.
