First Person Charged & Convicted Under Florida’s New ‘Red Flag’ Law
The first person charged under Florida’s new ‘red flag’ law – passed in an effort to prevent another Parkland school shooting – was found guilty in December. The law allows law enforcement to confiscate an individual’s weapons if they deem that the individual poses a danger to themselves or others. It also allows them to do so without first obtaining a warrant; police simply need a court order, and to get that court order, they simply need to convince a judge that removing the weapons is warranted. If the individual then refuses to voluntarily surrender their weapons, they can face up to five years in prison. In this case, the defendant was previously arrested – and the order granted – based on charges of firing shots at his best friend’s vehicle. This was enough to justify seizing his weapons.
Deference & Thresholds
Florida’s red flag law, like others, provides a significant amount of deference to law enforcement and judges to decide what warrants seizing one’s weapons, especially with such a low standard to grant the court order – i.e. the requirement that police simply convince the judge that removing the weapons is warranted. However, police do not have the right to test the weapons to determine whether they were used to commit crimes without first obtaining a specific warrant.
Why Lack of Awareness of the New Law Matters
While ignorance of the law is never a viable defense, in this case, there are a number of issues associated with this law and the fact that so many are unaware of its existence. For one, most people in general are aware that they have Second Amendment rights and that police need a warrant to search their home. However, in this case, the police showed up at the defendant’s home and demanded that he surrender his weapons without having a warrant, which was confusing to the defendant; again, based on his general understanding of his rights and what is required to search one’s property.
It would also likely surprise many to find out that those targeted do not have the right to have an attorney present before an order is entered against them and, although risk protection orders are civil actions, defying them is a criminal act, and therefore, once the judge makes the determination that removing an individual’s weapons is warranted, their only choice is to either surrender the weapons or place them under the care of someone who is legally allowed to keep them.
Contact Our West Palm Beach Criminal Defense Attorney
As a former prosecutor, I have significant experience with both sides of Florida’s criminal justice system, and can provide anyone charged with the very best in skilled representation. After 30 years of practicing criminal law, we have seen it all, are prepared to aggressively defend you if you or a loved one has been charged with a crime. Contact a West Palm Beach criminal lawyer at the office of William Wallshein, P.A. today to find out more.