The foreknowledge was provided by three talented psychics called “Precogs.” The "Precogs” would "previsualize" crimes by receiving visions of the future. Officers in the PreCrime unit would then arrest the suspect before the crime was committed.
The authorities who created the program discovered that minority reports were casting doubts in individual cases. To protect the program from criticism, the authorities devised a plan to hide the minority reports.
When the Precogs predict that Tom Cruise's character will commit murder, he goes on a mission to find his minority report. The movie explores the role of preventive government in protecting its citizens and the hidden problems with an infallible prosecution.
Finding the Minority Report in a RPO Hearing
In March of 2018, Florida created its own version of PreCrime called a "Risk Protection Order" under Florida Statute Section 790.401.
At the hearing, the court is asked to determine, by clear and convincing evidence, whether the respondent poses a "significant danger" of causing injury to himself or others by having a firearm in his custody or control.
If you represent a client served with a temporary risk protection order, you will begin your own quest to find the minority report. You will have less than fourteen (14) days and the attorney with the sheriff's office or police department might block you at every turn.
Strategies for Winning RPO Hearings
Because I had some experience representing Respondents in RPO cases, I was invited to give a presentation at a CLE seminar for the St. Pete Bar Association on Friday, May 17, 2019, at the St. Petersburg Yacht Club.
The seminar was entitled "Know Your Client’s Rights: Adapting to Legislative Changes in Criminal Defense." My part of the presentation was on representing clients facing weapons removal and restriction under Risk Protection Orders.
My 40-minute presentation was followed by an hour-long panel discussion on RPOs with The Honorable Pat Siracusa, The Honorable Susan St. John, an attorney in private practice with experience in RPO cases, Bruce H. Denson, and attorneys for the Pinellas County Sheriff's Office and the Tampa Police Department.
My presentation focused on strategies the Respondent's attorney might use to win the Risk Protection Order (RPO) hearing by showing the Court the reasons the petition for the RPO should be denied.
Most Respondents in these hearings appear without an attorney. As a result, people consent to the RPO being imposed without fully understanding the direct and collateral consequences of that decision.
The Florida Supreme Court has yet to adopt a model colloquy to be given to the Respondent by the Circuit Court Judge before accepting the Respondent's stipulation or consent to enter the RPO without a hearing.
I'm adding the material from my presentation below with a few modifications. I'm sharing this information because it might help other attorneys during their first RPO hearing or those trying to learn more about the process from the defense attorney's perspective.
Sharing this information is a great way to network with other attorneys fighting similar battles. Feel free to email me at Lsammis@sammislawfirm.com if you disagree or suggest a different approach.
The Florida Supreme Court has yet to adopt a model colloquy to be given to the Respondent by the Circuit Court Judge before accepting the Respondent's stipulation or consent to enter the RPO without a hearing.
I'm adding the material from my presentation below with a few modifications. I'm sharing this information because it might help other attorneys during their first RPO hearing or those trying to learn more about the process from the defense attorney's perspective.
Sharing this information is a great way to network with other attorneys fighting similar battles. Feel free to email me at Lsammis@sammislawfirm.com if you disagree or suggest a different approach.
I'd like to thank Kendra Parris, who has information on her website about Risk Protection Orders in Florida and handles these cases throughout the state.
What is an RPO in Florida?
The Florida Legislature created The Risk Protection Order Act (Section 790.401, Florida Statutes) in 2018. The statute seeks to reduce deaths and injuries by restricting persons who are at a high risk of harming themselves or others from having access to firearms or ammunition.
The statute allows law enforcement officers or agencies to obtain a court order when there is evidence that a person poses a significant danger to himself or herself or others by having a firearm or any ammunition. This significant danger might be the result of a mental health crisis, evidenced by violent behavior, any other factor enumerated in s. 790.401(3)(c), or any other “relevant evidence.”
The purpose and intent of the statute is:
“[T]o reduce deaths and injuries as a result of certain individuals’ use of firearms while respecting constitutional rights.”
Ch. 2018-3, § 14(2), at 15, Laws of Fla. (emphasis added).
Does the statute “include standards and safeguards to protect the constitutional rights of those persons and to ensure due process of law,” as suggested by the OSCA Court Staff Manual on RPO?
Why are RPO Laws Being Created?
The Florida law was derived almost word-for-word from the Washington “Extreme Risk Protection Order Act,” Wash. Rev. Code § 7.94, passed by voter referendum in 2016. At last count, fifteen states and the District of Columbia have passed risk protection order laws.
On January 3, 2019, Senator Rubio introduced a bill entitled the “Extreme Risk Protection Order and Violence Prevention Act of 2019.” Congress.gov, S. 7, 116th Congress (2019-2020), which is virtually identical to s. 790.401, F.S., except that any family or household members have standing to act as the petitioner, in addition to law enforcement. (Latest Action: Senate - 01/03/2019 Read twice and referred to the Committee on the Judiciary).
The bill also authorized appropriations in the amount of $20 million for each fiscal year from 2019 through 2023 to be awarded by the Department of Justice to states that have enacted "qualifying" risk protection order laws. The funds promise to provide assistance to law enforcement agencies or the courts to carry out this new law.
Who is the Petitioner?
Under The Risk Protection Order Act, only law enforcement officers or agencies may file a petition for a risk protection order. The petition must be filed in the clerk’s office for the circuit court in the county where the Petitioner’s law enforcement office is located (or in the county where the Respondent resides).
*Recently Proposed Legislation: SB 7106 expanded the definition of a petitioner for purposes of seeking an RPO to include certain family members of the respondent or a person who is the respondent’s legal guardian (without the assistance of law enforcement). Although this bill died in committee on 5/3/19, this proposed legislation will likely reemerge in the next legislative session.
What additional problems are created if Florida's RPO is amended to allow family members to file RPO petitions?
What must be shown for the RPO?
For the ex parte Temporary RPO:
The petition and accompanying affidavit(s) must provide facts that give rise to a reasonable fear that Respondent "poses a significant danger of causing personal injury to himself or herself or others by having …a firearm or any ammunition.”
The Temporary RPO has two additional requirements:
- the sworn facts that demonstrate that Respondent poses a significant danger of causing injury must be based on personal knowledge; and
- the sworn facts must demonstrate that the danger may occur in the near future.
Does the court find “by clear and convincing evidence that the respondent poses a significant danger of causing personal injury to himself or herself or others by having …a firearm or any ammunition”?
What is the Burden of Persuasion?
The burden of persuasion for the Temporary RPO hearing is “reasonable cause.” For the Final RPO hearing, the burden of persuasion is “clear and convincing evidence.”
What Do You Mean "I Can't Have a Continuance?"
The RPO statute does NOT prohibit the court from granting a continuance for good cause at the 14-day hearing. Instead, the statute merely provides:
"the court must order a hearing to be held no later than 14 days after the date of the order....." (emphasis added).
Once the court orders the hearing to be held, then this provision of the statute is satisfied.
The statute for domestic violence protective order expressly allows the court to grant a continuance and extend the temporary order during the continuance. So to avoid any prejudice to the petitioner, you might be asked to stipulate that the Temporary RPO is being extended until the continued return hearing.
Some judges will deny the "motion to continue" because the statute doesn't expressly allow it. Other judges are routinely granting the request for a continuance by the Respondent's attorney. Alternatively, the Court might offer to bifurcate the proceeding to allow the Respondent to return later to present their side of the case.
Even if the RPO statute is silent about the ability to continue the hearing, due process would require it in some circumstances. Without a continuance, there might be no way to adequately represent the Respondent or have a fair hearing. For this reason, it is important to file a written "motion to continue," showing good cause to preserve that issue for appeal.
Which Rules of Evidence Apply?
Section 790.401(3)(e), Florida Statutes, specifically provides that the same rules of evidence that apply to a domestic violence injunction proceeding under s. 741.30 (which are Ch. 90), also applies to a RPO hearing.
The relevant rules of evidence, with citations to the applicable Florida statute, are listed here:
- Hearsay –section 90.801
- Availability of declarant immaterial –section 90.803
- Declarant unavailable – section 90.804
- Self-authentication –section 90.902
- Relevancy
- Definition – section 90.401
- Admissibility – section 90.402
- Exclusion (prejudice/confusion) – section 90.403
- Oaths/Affirmations – section 92.50
- Presumptions
- Defined –section 90.301
- Rebuttable –section 90.302
- Burden of proof –section 90.304
- Judicial Notice
- Mandatory –section 90.201
- Discretionary –section 90.202
- Privileges – section 90.501
- Competency
- Generally –section 90.601
- Disqualification –section 90.603
- Expert Witnesses
- Generally –section 90.702
- Basis of opinion testimony –section 90.704
- Authoritativeness of literature –section 90.706
"[a] person, including an officer of the court, who offers evidence or recommendations relating to the cause of action either must present the evidence or recommendations in writing to the court with copies to each party and his or her attorney, if one is retained, or must present the evidence under oath at a hearing at which all parties are present."When would that provision apply for merely presenting written evidence or recommendations?
I've noticed that if the Respondent doesn't appear at the RPO hearing, the court simply reads the petition and grants it. In other types of injunction hearings, the court will require the petitioner to present sufficient evidence before granting the injunction, even if the Respondent fails to appear in court.
Since the same rules of evidence that apply to a domestic violence injunction proceeding under Section 741.30 also apply in a RPO hearing, does the same hold true for the rules of procedure? The answer appears to be "no."
The Florida Family Law Rules of Procedure apply to domestic violence, repeat violence, dating violence, stalking violence, and sexual violence injunction for protection hearings as explained in Rule 12.010(a)(1), but apparently the same rules do not apply at RPO hearings. [2]
Instead, the Florida Rules of Civil Procedure apply to RPO hearings for the reasons explained in Rule 1.010. Under Rule 1.010, the civil rules of procedure apply to "all actions of a civil nature and all special statutory proceedings in the circuit courts and county courts except those to which the Florida Probate Rules, the Florida Family Law Rules of Procedure, or the Small Claims Rules apply."
Since the RPO statute doesn't fit into any of those exceptions, the Florida Rules of Civil Procedure must apply to an RPO hearing.
Yes. Florida Rule Civil Procedure 1.310 provides:
After commencement of the action any party may take the testimony of any person, including a party, by deposition upon oral examination....The attendance of witnesses may be compelled by subpoena as provided in rule 1.410.
"Leave of court" isn't required except when the plaintiff seeks to take a deposition within 30 days after service of the process and initial pleading on any defendant (unless the defendant has served a notice of taking a deposition or otherwise sought discovery).
For this reason, if you file a "notice of deposition" or "subpoena duces tecum" on the Petitioner's witnesses, then the Petitioner might be able to take your client's deposition without seeking leave of the court.
The same thing occurs in domestic violence injunctions. If the Respondent files a notice of taking a deposition, then the Petitioner might do the same.
I've seen RPO hearings in which the attorney for the Pinellas County Sheriff's Office calls the Respondent as a witness during their case in chief, although they might say that rarely occurs.
In some cases, it might even be helpful for your client to submit to the deposition because the Petitioner might be persuaded to drop the petition.
Or your client might decide to "take the Fifth" at the deposition or hearing if answering the questions might tend to incriminate them (especially if they have charges pending related to the allegations in the petition).
The problem with RPO hearings is that even though you are entitled to pre-trial discovery under the Rules of Civil Procedure, the fact that the hearing takes place within 14 days means that your opportunity for pre-hearing discovery is effectively barred unless you get a continuance.
Consider filing a motion for "discovery" and a demand for "exculpatory information or evidence" immediately after you are retained. Then, request that same information through a subpoena duces tecum, interrogatories, production of documents, or requests for admission.
In the motion, list the specific items that you suspect might be exculpatory or potentially exculpatory, including any 911 call, witness statements, police reports, or surveillance videos. Then, send the request a second time as a public record request to the agency or agencies that have those records.
The Pinellas County Sheriff's Office or any law enforcement agency might take the position that the requested records have been excised, withheld, or are exempt from a public records request under F.S.S. 119.071(2)(c)(1) because of an active criminal investigation.
The point is to clearly demonstrate the fact that the agency is telling you that you are not entitled to discovery and they won't comply with the PRR in a timely manner. Then add this information to your written "motion for continuance" to be filed before the 14-day hearing.
Since the Florida Rules of Civil Procedure apply, you could serve the Petitioner's witnesses with a notice of taking deposition and subpoena duces tecum, although as a practical matter, you might only have time to serve them right before the 14-day hearing and ruling on the motion for continuance.
If you don't get the continuance after making the proper arguments and then lose the hearing, the case would likely get reversed on appeal. If the court effectively bars any opportunity for discovery by denying the request for a continuance, then a due process violation has occurred.
For injunctions for protection cases in Florida, the Court may not bar the opportunity for discovery, but may limit the time in which a party may engage in discovery.
I think the same logic should apply to the RPO hearing. The Courts should give the Respondent's attorney an opportunity to obtain discovery and be prepared for the return hearing.
Unless you are sure the court is providing the court reporter or an electronic recording, you should always bring a court reporter (unless you have a really good reason not to).
Section 790.401, Florida Statutes, does NOT require the court to record a hearing on the Final RPO, a motion to vacate, or a motion to extend. Without a transcript, it is nearly impossible for the Respondent to successfully appeal an adverse ruling.
If a petition to extend the RPO is filed each year, having a record of that initial hearing might become important years later. This doesn’t seem to be an issue in Pinellas County, FL, because the RPO hearings are recorded electronically using the "Blue Man.”
In fact, Administrative Order 2018-042 (B)(1)(c) provides that “[c]ourt-employed digital court reporters shall report all other Criminal Division proceedings.”
In Hillsborough County, it is my understanding that the proceedings are NOT electronically recorded, so bringing a court reporter is necessary (unless you have a really good reason not to).
Over the past several months, the courts have started to avoid this concern by adding information to their notices about whether the hearing will be electronically recorded or whether either side is invited to bring a court reporter.
You might consider filing the following motions prior to the RPO hearing:
When I read these petitions, I'm often struck by how much of the "evidence" is based on what happened after the officers confronted the Respondent as part of their RPO investigation either right before or right after filing for the Temporary RPO (hereinafter "TRPO").
These issues don't exist in every RPO case. This evidence or testimony might only be a small part of the Petitioner's overall case. Nevertheless, I've seen this issue arise because the officers don't follow their normal procedures during an RPO investigation because they perceive the circumstances as more pressing or demanding.
In a case with little evidence, the Petitioner often makes a big deal about things that happened while the officers were confronting the Respondent before even obtaining the TRPO and then again while serving the TRPO. Many of the cases involve extensive interrogation without reading Miranda warnings.
Once the officer decides this is an "RPO" investigation, the goal of the interrogation is to develop evidence that can be used in the petition. If the evidence wouldn't be admissible in a criminal case, then it should NOT be admissible in an RPO hearing.
Additionally, the officers might illegally detain the Respondent for questioning during a prolonged detention and then complain that he or she was not forthcoming or cooperative.
I've seen several cases in which the Respondent was detained and evidence for the RPO hearing was gathered as part of a roadside investigation. In these types of cases, the legality of the stop or detention is often in dispute.
When the officers serve the TRPO, they often gain entry into the house or vehicle to retrieve the firearms (without a warrant). While seizing the firearms, they might also gather or photograph other evidence.
Which Rules of Procedure Apply?
Since the same rules of evidence that apply to a domestic violence injunction proceeding under Section 741.30 also apply in a RPO hearing, does the same hold true for the rules of procedure? The answer appears to be "no."
The Florida Family Law Rules of Procedure apply to domestic violence, repeat violence, dating violence, stalking violence, and sexual violence injunction for protection hearings as explained in Rule 12.010(a)(1), but apparently the same rules do not apply at RPO hearings. [2]
Instead, the Florida Rules of Civil Procedure apply to RPO hearings for the reasons explained in Rule 1.010. Under Rule 1.010, the civil rules of procedure apply to "all actions of a civil nature and all special statutory proceedings in the circuit courts and county courts except those to which the Florida Probate Rules, the Florida Family Law Rules of Procedure, or the Small Claims Rules apply."
Since the RPO statute doesn't fit into any of those exceptions, the Florida Rules of Civil Procedure must apply to an RPO hearing.
Can I Take the Deposition of the Witnesses Named in the RPO Petition?
Yes. Florida Rule Civil Procedure 1.310 provides:
After commencement of the action any party may take the testimony of any person, including a party, by deposition upon oral examination....The attendance of witnesses may be compelled by subpoena as provided in rule 1.410.
"Leave of court" isn't required except when the plaintiff seeks to take a deposition within 30 days after service of the process and initial pleading on any defendant (unless the defendant has served a notice of taking a deposition or otherwise sought discovery).
For this reason, if you file a "notice of deposition" or "subpoena duces tecum" on the Petitioner's witnesses, then the Petitioner might be able to take your client's deposition without seeking leave of the court.
The same thing occurs in domestic violence injunctions. If the Respondent files a notice of taking a deposition, then the Petitioner might do the same.
I've seen RPO hearings in which the attorney for the Pinellas County Sheriff's Office calls the Respondent as a witness during their case in chief, although they might say that rarely occurs.
In some cases, it might even be helpful for your client to submit to the deposition because the Petitioner might be persuaded to drop the petition.
Or your client might decide to "take the Fifth" at the deposition or hearing if answering the questions might tend to incriminate them (especially if they have charges pending related to the allegations in the petition).
How Do You Get Discovery without a Continuance?
The problem with RPO hearings is that even though you are entitled to pre-trial discovery under the Rules of Civil Procedure, the fact that the hearing takes place within 14 days means that your opportunity for pre-hearing discovery is effectively barred unless you get a continuance.
Consider filing a motion for "discovery" and a demand for "exculpatory information or evidence" immediately after you are retained. Then, request that same information through a subpoena duces tecum, interrogatories, production of documents, or requests for admission.
In the motion, list the specific items that you suspect might be exculpatory or potentially exculpatory, including any 911 call, witness statements, police reports, or surveillance videos. Then, send the request a second time as a public record request to the agency or agencies that have those records.
The Pinellas County Sheriff's Office or any law enforcement agency might take the position that the requested records have been excised, withheld, or are exempt from a public records request under F.S.S. 119.071(2)(c)(1) because of an active criminal investigation.
The point is to clearly demonstrate the fact that the agency is telling you that you are not entitled to discovery and they won't comply with the PRR in a timely manner. Then add this information to your written "motion for continuance" to be filed before the 14-day hearing.
Since the Florida Rules of Civil Procedure apply, you could serve the Petitioner's witnesses with a notice of taking deposition and subpoena duces tecum, although as a practical matter, you might only have time to serve them right before the 14-day hearing and ruling on the motion for continuance.
Can the Court Bar the Opportunity for Discovery?
If you don't get the continuance after making the proper arguments and then lose the hearing, the case would likely get reversed on appeal. If the court effectively bars any opportunity for discovery by denying the request for a continuance, then a due process violation has occurred.
For injunctions for protection cases in Florida, the Court may not bar the opportunity for discovery, but may limit the time in which a party may engage in discovery.
“The court must balance the need to expedite the hearing and the need to ensure that the parties' due process rights are not violated. The trial court is imbued with discretion to limit the time frame and nature of discovery in such cases and can do so by examining individual discovery requests on a case by case basis.” Nettles v Hoyos, 138 So. 3d 593 (Fla. 5th DCA 2014).
I think the same logic should apply to the RPO hearing. The Courts should give the Respondent's attorney an opportunity to obtain discovery and be prepared for the return hearing.
Should You Bring a Court Reporter?
Unless you are sure the court is providing the court reporter or an electronic recording, you should always bring a court reporter (unless you have a really good reason not to).
Section 790.401, Florida Statutes, does NOT require the court to record a hearing on the Final RPO, a motion to vacate, or a motion to extend. Without a transcript, it is nearly impossible for the Respondent to successfully appeal an adverse ruling.
If a petition to extend the RPO is filed each year, having a record of that initial hearing might become important years later. This doesn’t seem to be an issue in Pinellas County, FL, because the RPO hearings are recorded electronically using the "Blue Man.”
In fact, Administrative Order 2018-042 (B)(1)(c) provides that “[c]ourt-employed digital court reporters shall report all other Criminal Division proceedings.”
In Hillsborough County, it is my understanding that the proceedings are NOT electronically recorded, so bringing a court reporter is necessary (unless you have a really good reason not to).
Over the past several months, the courts have started to avoid this concern by adding information to their notices about whether the hearing will be electronically recorded or whether either side is invited to bring a court reporter.
Motions to File Before the RPO Hearing
You might consider filing the following motions prior to the RPO hearing:
- “Motion to Continue” explaining all the reasons you have good cause for the request.
- “Motion to Dismiss” the Temporary RPO petition if the "affidavit made under oath" doesn’t contain the requirements of Section 790.401(4)(a), which include::
- detailed allegations based on personal knowledge
- that the respondent poses a significant danger of causing personal injury to himself or herself or others in the near future
- by having in his or her custody or control, or by purchasing, possessing, or receiving, a firearm or ammunition.
- If an TRPO was issued, look through the petition to see if anyone actually has "personal knowledge" or if the allegations are based purely on second-hand information from a third party.
- "Motion to Suppress or Exclude" testimony about physical evidence seized (if any) or testimony about observations made by law enforcement during the RPO investigation.
- In the motion, describe the evidence seized, statements taken, or observations made during the initial RPO investigation that should be suppressed or excluded.
- From the petition itself, you often have enough information to put in your motion, including:
- the time, date, and location of the stop, detention, search and/or seizure;
- the names and badge numbers of any officers involved;
- the reasons why the stop, detention, search or seizure was unreasonable under the Fourth Amendment;
- the reasons why the interrogation was coerced or taken in violation of Miranda, the Fifth Amendment right to remain silent or the Sixth Amendment right to the assistance of counsel; and
- move to exclude or suppress that evidence as the fruit of the poison tree.
- After the motion is filed, the Petitioner should have the burden of establishing the evidence was lawfully obtained (which is an issue in DHSMV formal review hearings for a DUI driver’s license suspension or a civil asset forfeiture case).
- For example, motions to suppress evidence are appropriate in civil forfeiture proceedings because the seizure and subsequent civil forfeiture of assets implicate the Fourth Amendment. Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702 (1965) (holding that the Fourth Amendment is applicable to civil forfeiture proceedings).
The Consequence of Evidence Gathered Illegally for the RPO Petition
When I read these petitions, I'm often struck by how much of the "evidence" is based on what happened after the officers confronted the Respondent as part of their RPO investigation either right before or right after filing for the Temporary RPO (hereinafter "TRPO").
These issues don't exist in every RPO case. This evidence or testimony might only be a small part of the Petitioner's overall case. Nevertheless, I've seen this issue arise because the officers don't follow their normal procedures during an RPO investigation because they perceive the circumstances as more pressing or demanding.
In a case with little evidence, the Petitioner often makes a big deal about things that happened while the officers were confronting the Respondent before even obtaining the TRPO and then again while serving the TRPO. Many of the cases involve extensive interrogation without reading Miranda warnings.
Once the officer decides this is an "RPO" investigation, the goal of the interrogation is to develop evidence that can be used in the petition. If the evidence wouldn't be admissible in a criminal case, then it should NOT be admissible in an RPO hearing.
Additionally, the officers might illegally detain the Respondent for questioning during a prolonged detention and then complain that he or she was not forthcoming or cooperative.
I've seen several cases in which the Respondent was detained and evidence for the RPO hearing was gathered as part of a roadside investigation. In these types of cases, the legality of the stop or detention is often in dispute.
When the officers serve the TRPO, they often gain entry into the house or vehicle to retrieve the firearms (without a warrant). While seizing the firearms, they might also gather or photograph other evidence.
For example, the officers might enter someone's home and start taking pictures of the medicine in their medicine cabinet without their permission and without a warrant.
I've also seen cases where the officers seized firearms in the home before the TRPO was even signed.
It would be hard to imagine a scenario in which "free and voluntary consent" would exist under those circumstances. The only exceptions to the warrant requirement are either voluntary consent or exigent circumstances, although neither of those exceptions neatly fits these scenarios.
Compounding the problem, the officer might come into the house and comment about the house being in disarray or criticize how the firearms are being stored or secured.
If the officers make those observations, you can bet the Petitioner will attempt to use it against the Respondent at the hearing. From the officer's perspective, there is no choice other than to force the "surrender" of the firearms and concealed weapon permit. The Respondent might become upset and question their authority for taking such action or be less than fully cooperative.
I understand the pressure put on law enforcement in these circumstances, but the bottom line is that this evidence should not be "bootstrapped" into the hearing and presented as a reason to grant the RPO.
The easiest way to deal with these issues is to look at the evidence in the Petition and file a quick motion to suppress or exclude it before the hearing to prevent such testimony or evidence from being introduced.
What do you do if your motion to continue is denied? You might consider taking these steps:
Preserve the record with the appropriate objections. What rules of evidence apply during a TPO hearing? Under Section 790.401(3)(e), Florida Statutes, the same rules of evidence apply to a domestic violence injunction proceeding under s. 741.30, also applies in a TPO hearing.
Expect the petitioner’s attorney to present a lot of testimony that is hearsay, irrelevant, speculation, and lacks personal knowledge.
The petitioner might file a notice of intent to offer a business record of regularly conducted activity by certification or declaration right before the hearing. The docket might show the "NOTICE OF INTENT TO OFFER RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY” that references Section 90.803(6)(a) and (c) and 90.902(11).
To lay a proper foundation, a certification or declaration must comply with 90.803(c) and s. 90.902(11). File a written object at the hearing that a proper foundation cannot be established and explain why.
Those objections to the foundation for the document being admitted as a business record might include the following arguments:
Under Florida Statute Section 790.401(3)(a)3, the statute allows the court to conduct a hearing by telephone pursuant to “a local court rule to reasonably accommodate a disability or exceptional circumstances.”
Object that the predicate has not been established to show the “disability or exceptional circumstances.”
Object if the witness is not sworn to tell the truth by a notary standing in the same room as the witness who can verify the identity of the witness (this is required in other types of telephonic hearings, including DHSMV telephonic formal review hearings).
The court should not allow for witness testimony that is not sworn or under oath. Find the local rules for testimony by phone, if any, and object that a proper foundation has not been established for the testimony and explain why.
For the TRPO, can the judge call the law enforcement officer to conduct the ex-parte hearing? In Broward County, the “preferred method of communication” for the TRPO is over the phone.
To rebut the allegations, explain why the Respondent would need to disclose and discuss his mental health records, including records created pursuant to a Baker Act examination.
Both the Florida legislature and the courts have long recognized that, as a matter of public policy, mental health records and proceedings are confidential and may not be disclosed to the public except in very limited circumstances. See § 394.459(9), F.S.; see Tribune Co. v. D.M.L., 566 So. 2d 1333 (Fla. 2d DCA 1990) (Baker Act proceedings must be closed to protect the “individual dignity and human rights” guaranteed by the Florida Mental Health Act for individuals with mental illness);
Applicable provisions include:
A written order must be entered if the RPO petition is denied. Additional language is required if a TRPO has been issued and firearm/ammunition/license has been surrendered.
The Order will require the Petitioner, as requested by Respondent, to return any firearms, ammunition, or license to carry a concealed weapon or firearm that was surrendered by Respondent (after complying with all applicable provisions of federal and state law).
If you win the hearing, motion to vacate, or if the RPO expires, then your client will be able to make an appointment to get the firearms returned.
I've also seen cases where the officers seized firearms in the home before the TRPO was even signed.
It would be hard to imagine a scenario in which "free and voluntary consent" would exist under those circumstances. The only exceptions to the warrant requirement are either voluntary consent or exigent circumstances, although neither of those exceptions neatly fits these scenarios.
Compounding the problem, the officer might come into the house and comment about the house being in disarray or criticize how the firearms are being stored or secured.
If the officers make those observations, you can bet the Petitioner will attempt to use it against the Respondent at the hearing. From the officer's perspective, there is no choice other than to force the "surrender" of the firearms and concealed weapon permit. The Respondent might become upset and question their authority for taking such action or be less than fully cooperative.
I understand the pressure put on law enforcement in these circumstances, but the bottom line is that this evidence should not be "bootstrapped" into the hearing and presented as a reason to grant the RPO.
The easiest way to deal with these issues is to look at the evidence in the Petition and file a quick motion to suppress or exclude it before the hearing to prevent such testimony or evidence from being introduced.
Motion to Declare Section 790.401 Unconstitutional
Because the statute is new, attorneys are filing Motions to Declare Section 790.401 Unconstitutional on its face and as applied. I've outlined a quick summary of those issues that can be raised.
- The RPO Statute Violates the Second Amendment
- An argument can be made that the statute violates the Second Amendment and the State Right to Bear Arms.
- The second amendment is fully applicable to the states through the due process clause of the fourteenth amendment. McDonald v. Chicago, 561 U.S. 742, 778, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
- Additionally, under Article I, § 8(a) of the Florida Constitution provides: “[t]he right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.”
- The RPO Statute is Overly Broad because it does NOT require:
- the risk of significant danger related to any specific type of mental health crisis or violent behavior; and
- the fear is related to an imminent, present, or credible danger.
- The RPO Statute Void for Vagueness [1] because it does not define any of the following terms or phrases:
- reasonable fear;
- reasonable fear of significant dangerous acts; and
- poses a “significant danger.”
- The RPO Statute Infringes on First Amendment Rights
- Argue the statute does not exclude constitutionally protected activity and infringes on First Amendment rights or inhibits the First Amendment rights of other parties even when that conduct is not criminal.
- Retroactive Application
- If the Petitioner seeks retroactive application of the RPO statute to facts that occurred before the law went into effect, it would render the statute unconstitutional as applied to Respondent.
- Section 790.401, Florida Statutes (“Risk Protection Order Act”) was enacted on March 9, 2018. The statute is substantive law and contains no clear legislative expression of retroactive application.
- If the petition alleges facts and events that occurred prior to March 9, 2018, then file a motion to dismiss and/or exclude before the hearing and argue that the court should not consider those facts on retroactive application grounds.
Ways to Avoid a "Hearing by Ambush"
What do you do if your motion to continue is denied? You might consider taking these steps:
- When the court calls the case, argue your grounds for a continuance and tell the court about the other motions you have filed (make sure you get a ruling on each and every motion).
- If the court denies your motion to continue, ask the court to compel the petitioner’s attorney to make you a copy of the exhibits they intend to introduce and the other items you've already requested from the Petitioner, including pictures, audio, video, police reports, or written statements in their possession.
- If the continuance is denied, ask the court to pass the case temporarily so you have time to question the witnesses in the hallway (have the second attorney or your assistant stand by as a witness to the interview in case impeachment becomes necessary).
- If the court only allows you to talk to the witnesses in the hallway before the hearing, can you use your court reporter to take a "hallway deposition" over the Petitioner's objection?
- It sounds absurd, but sometimes you have to make your point by responding logically to the absurdity being used by the other side.
- If the court wants to use this concept of "hallway discovery," then the concept of "hallway deposition" seems equally appropriate.
- If you are paying for the court reporter's time anyway, you should put them to good use.
- The deposition might become important for impeachment purposes.
- If the court denies the request, you have additional grounds for the due process violation.
- You might even have your process server on standby to serve the notice of taking depositions for that same day on the witness.
- Renew your objections and restate the prejudice after talking to the witnesses but before the hearing.
- Renew all your motions and objections after the Petitioner's case in chief and after you rest your case.
Making Objections at the RPO Hearing
Preserve the record with the appropriate objections. What rules of evidence apply during a TPO hearing? Under Section 790.401(3)(e), Florida Statutes, the same rules of evidence apply to a domestic violence injunction proceeding under s. 741.30, also applies in a TPO hearing.
Expect the petitioner’s attorney to present a lot of testimony that is hearsay, irrelevant, speculation, and lacks personal knowledge.
Objections to Business Records
The petitioner might file a notice of intent to offer a business record of regularly conducted activity by certification or declaration right before the hearing. The docket might show the "NOTICE OF INTENT TO OFFER RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY” that references Section 90.803(6)(a) and (c) and 90.902(11).
To lay a proper foundation, a certification or declaration must comply with 90.803(c) and s. 90.902(11). File a written object at the hearing that a proper foundation cannot be established and explain why.
Those objections to the foundation for the document being admitted as a business record might include the following arguments:
- the notice was not reasonable because it was only provided a few days before the hearing or it was not received by the Respondent at all (since they probably mailed it right before the hearing);
- the certification or declaration was not attached to the notice;
- a copy of the business record itself was not attached to the notice; or
- the petitioner did not otherwise make it available for viewing with sufficient notice.
Object if the Court allows a Witness to Testify by Phone
Under Florida Statute Section 790.401(3)(a)3, the statute allows the court to conduct a hearing by telephone pursuant to “a local court rule to reasonably accommodate a disability or exceptional circumstances.”
Object that the predicate has not been established to show the “disability or exceptional circumstances.”
Object if the witness is not sworn to tell the truth by a notary standing in the same room as the witness who can verify the identity of the witness (this is required in other types of telephonic hearings, including DHSMV telephonic formal review hearings).
The court should not allow for witness testimony that is not sworn or under oath. Find the local rules for testimony by phone, if any, and object that a proper foundation has not been established for the testimony and explain why.
For the TRPO, can the judge call the law enforcement officer to conduct the ex-parte hearing? In Broward County, the “preferred method of communication” for the TRPO is over the phone.
Can You Move to Close the Proceeding or Seal the Records?
If the petition alleges serious mental illness or recurring mental health issues, then requests that the records and proceedings be kept closed and sealed to protect both the judicial process and the confidentiality of information.
To rebut the allegations, explain why the Respondent would need to disclose and discuss his mental health records, including records created pursuant to a Baker Act examination.
Both the Florida legislature and the courts have long recognized that, as a matter of public policy, mental health records and proceedings are confidential and may not be disclosed to the public except in very limited circumstances. See § 394.459(9), F.S.; see Tribune Co. v. D.M.L., 566 So. 2d 1333 (Fla. 2d DCA 1990) (Baker Act proceedings must be closed to protect the “individual dignity and human rights” guaranteed by the Florida Mental Health Act for individuals with mental illness);
Applicable provisions include:
- Fla. Const. Art. I, sec. 23 (right of privacy);
- § 456.057, F.S. (confidentiality of mental health records generally);
- §§ 394.453(1)(b)5. and 394.459(1), F.S. (legislative intent to support individual dignity and human rights of mental health patients);
- § 456.059 (confidentiality of psychiatrists’ records);
- § 490.0147 (confidentiality of all other mental health practitioners’ records).
What Happens if the Court Denies the Final RPO?
A written order must be entered if the RPO petition is denied. Additional language is required if a TRPO has been issued and firearm/ammunition/license has been surrendered.
The Order will require the Petitioner, as requested by Respondent, to return any firearms, ammunition, or license to carry a concealed weapon or firearm that was surrendered by Respondent (after complying with all applicable provisions of federal and state law).
If you win the hearing, motion to vacate, or if the RPO expires, then your client will be able to make an appointment to get the firearms returned.
The new form order provides that the Clerk of the Court shall immediately forward a copy of the Order to the Department of Agriculture and Consumer Services so the department can reinstate the Respondent’s license to carry a concealed weapon or firearm (after complying with all applicable provisions of federal and state law.)
You will probably need to follow up with the Department of Agriculture and Consumer Services by sending them a copy of the order. The Department will then issue an order reinstating the concealed weapon's license.
The new form order also requires the Petitioner to promptly remove the risk protection order from any computer-based system in which it was entered, including the FCIC and NCIC.
You will probably need to follow up with the Department of Agriculture and Consumer Services by sending them a copy of the order. The Department will then issue an order reinstating the concealed weapon's license.
The new form order also requires the Petitioner to promptly remove the risk protection order from any computer-based system in which it was entered, including the FCIC and NCIC.
Evaluations if the RPO is Granted?
If the Respondent is ordered to complete a mental health and/or chemical dependency evaluation, the case could be reset to ensure the Respondent has complied with the court order for the evaluation(s). The final RPO might include the compliance hearing date.
Who should perform the mental health or chemical dependency evaluation? What if the Respondent has lost his job because of the RPO and can’t afford it?
What Happens When an RPO Order Expires?
If a risk protection order expires without extension, the Respondent can get back the firearms and concealed weapons permit (if the Respondent is otherwise eligible after a background check).
The Respondent might have to make at least two appointments with the Petitioner's agency since the firearm and ammunition will NOT be released at the same time.
Can the RPO Be Extended Beyond One Year?
The petitioner may, by written motion, request an extension of a risk protection order at any time within 30 days before the end of the order.
Upon receipt of the motion to extend, the court must schedule a hearing to be held no later than fourteen (14) days after the date the order is issued.
For any other type of injunction, the Respondent must be personally served with notice of any request for an extension. However, Section 790.401(5)(b) of the statute states that any order to continue "after the original service of documents...[i]f delivery at the hearing is not possible, the clerk shall mail certified copies of the order to the parties at the last known address of each party.
Service by mail is complete upon mailing. When an order is served pursuant to this subsection, the clerk shall prepare a written certification in the court file specifying the time, date, and method of service and shall notify the sheriff.
For this reason, the Respondent should notify the clerk of court if their address changes and check the docket to see if a motion to extend the order is filed within 30 days prior to the end of the order.
Motion to Vacate the RPO
The Respondent gets one chance to file a “Motion to Vacate” the RPO each time it is granted or extended. For this reason, the Respondent should be completely prepared before you file the Motion to Vacate because the hearing must be scheduled within 14 days.
This time, the Respondent has the burden of proving by clear and convincing evidence that they do NOT pose a significant danger of causing personal injury to themselves or others by having firearms or ammunition.
If the Motion to Vacate is granted, the Respondent gets their firearms and concealed weapons permit back if they are otherwise eligible. The agency must remove any reference to the RPO from any computer-based system in which it was entered, including FCIC and NCIC.
Criminal Charges Related to the RPO
A person who makes a false statement, which he or she does not believe to be true, under oath in a hearing under s. 790.401, F.S., in regard to any material matter, commits a felony of the third degree. Section 790.401(11)(a), F.S.
A person who has in his or her custody or control a firearm or any ammunition or who purchases, possesses, or receives a firearm or any ammunition with the knowledge that he or she is prohibited from doing so by a risk protection order commits a felony of the third degree. Section 790.401(11)(b), F.S.
RPO Statistics by County
The Summary Reporting System for Risk Protection Orders by county from March 2018 through February 2019, as reported by OSCA: Research, Statistics, and Evaluation Data as of April 1, 2019, shows:
- Pinellas County had 228 Final RPO hearings (223 granted, 1 denied, 4 missing).
- 99.56% of the written orders granted the Final RPO.
- Polk County had 233 Final RPO hearings (210 granted, 23 denied, 0 missing).
- 89% of the written orders granted the Final RPO.
- Hillsborough County had 76 Final RPO hearings (67 granted, 1 denied, 8 missing).
- 98.5% of the written orders granted the RPO.
Disclaimer
Nothing in this article is intended to be legal advice. Being served with a Petition for an RPO is a serious matter that might come with a lifetime of consequences since the petition could theoretically be extended for the rest of the Respondent's life.
If you need legal advice about a TRPO and RPO, seek out the services of an experienced defense attorney.
Footnotes
[1] The United States Supreme Court has explained the doctrine of “vagueness” as follows:
"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values.
First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.
Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges… for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
Third, …where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of those freedoms.” Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful ones' ... than if the boundaries of the forbidden areas were clearly marked.” Grayned v. City of Rockford, 408 U.S. 104, 108–09, 92 S.Ct. 2294, 2298–99, 33 L.Ed.2d 222 (1972) (footnotes omitted).
[2] Pre-trial discovery is available for domestic violence in injunction proceedings as set out in the Florida Family Law Rules of Procedures.
According to the 2017 Florida’s Domestic Violence Benchbook, under Rule 12.010(a)(1), the Florida Family Law Rules of Procedure apply to domestic, repeat, dating, and sexual violence, and stalking proceedings. Pre-trial discovery is available in these types of injunction cases including:
- depositions (rule 12.290);
- interrogatories (rule 12.340);
- production of documents (rule 12.350);
- examination of persons (rule 12.360); and
- requests for admission (rule 12.370).
This article was last updated on Friday, May 24, 2019.
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