No one disputes the goal of preventing harm. But the Red Flag process walks a fine line between public safety and civil liberties.
Can the government take away your firearms without charging you with a crime? In Florida, the answer is yes—and it’s happening more often than most people realize.
Florida’s Red Flag Law, officially known as the Risk Protection Order (RPO) statute, allows police to ask a court to temporarily remove firearms from individuals they believe pose a threat to themselves or others—even if those individuals have no criminal history, mental health diagnosis, or history of violence.
Supporters argue this law saves lives. Critics argue it sacrifices due process on the altar of prevention. As a criminal defense attorney in South Florida, I’ve stood at the intersection of these two forces—representing clients stripped of their rights based on suspicion, not evidence.
How the Law Works
Florida Statutes § 790.401, enacted in 2018 after the Parkland school shooting, allows law enforcement to petition a judge for a Risk Protection Order. These orders:
- Require individuals to surrender all firearms, ammunition, and concealed carry permits
- Can be issued ex parte—meaning without the subject being notified or present
- Are typically valid for up to one year, but can be extended
If granted, the person is legally barred from possessing or acquiring any new firearms. Violating an RPO is a felony.
You Don’t Need to Commit a Crime to Lose Your Rights
The most controversial aspect of Florida’s Red Flag Law is that you don’t need to be arrested, charged, or convicted of anything. All it takes is for law enforcement to believe that:
- You made threats (verbally, in writing, or online)
- You acted erratically
- You’ve recently acquired or displayed firearms in a concerning way
- You have a history of substance abuse or mental health instability
In some counties, police are using RPOs more frequently and preemptively—often based on social media activity, anonymous tips, or emotional outbursts.
Due Process in the Crosshairs
Risk Protection Orders are civil proceedings. That means:
- There’s no right to a court-appointed attorney
- Hearings are held within 14 days of the petition—but the temporary firearm seizure can happen immediately
- The burden of proof is “clear and convincing evidence,” which is below the criminal standard of “beyond a reasonable doubt”
If a temporary order is granted, police can show up at your home, unannounced, and lawfully seize your firearms—even before you’ve had your day in court.
Mental Health and the Slippery Slope
No one disputes the goal of preventing harm. But the Red Flag process walks a fine line between public safety and civil liberties.
There’s a growing concern that RPOs are being used too broadly:
- Individuals struggling with temporary grief, stress, or depression may be labeled dangerous
- Veterans and first responders are often reluctant to seek help, knowing it might trigger an RPO
- False or retaliatory petitions, while rare, can be difficult to disprove in such short timeframes
Once your name is in the system, even if the petition is denied, the reputational and emotional damage is done.
What You Can (and Should) Do If You’re Served
If you’re served with a Risk Protection Order petition, the worst thing you can do is ignore it. The second worst thing is walking into the hearing unrepresented.
An experienced criminal defense attorney can:
- Challenge the sufficiency of the petition
- Present evidence of stability, medical care, and lack of risk
- Cross-examine law enforcement officers and rebut subjective claims
- Request early termination of the order if circumstances change
In some cases, it’s possible to reach a negotiated resolution that avoids a full-year firearm ban or clears the way for record sealing.
A New Type of Legal Battle
RPO cases represent a growing segment of what I call “preventative litigation”—legal action based on what might happen, rather than what has.
This shift raises deep constitutional questions:
- Where is the line between caution and overreach?
- How do we ensure safeguards against abuse of discretion?
- Should someone lose a fundamental right based on untested allegations?
For Floridians who value both safety and liberty, these are not academic concerns. These are personal realities.
Final Thoughts: Know Your Rights—And Defend Them Early
Florida’s Red Flag Law isn’t going anywhere. If anything, enforcement will likely increase in response to continued calls for gun safety reform. But with that comes the risk of broad, unchecked application.
If you or someone you know is served with an RPO petition, take it seriously. Don’t assume the truth will speak for itself. Don’t expect fairness without preparation.
Your gun rights, your record, and your reputation are all on the line.
Join the conversation!