How do I get a risk protection order?
A law enforcement officer or agency must be the one who files for the risk protection order.1 The law enforcement officer or agency who files the petition must inform the respondent’s family or household members and any third party who could be at risk of violence about the petition and any appropriate resources and referrals.2 The petition for a risk protection order must claim that:
- the respondent poses a significant danger of causing personal injury to himself/herself or others by:
- having a firearm or any ammunition in his/her custody or control; or
- purchasing, possessing, or receiving a firearm or any ammunition.
The law enforcement officer or agency’s petition for a risk protection order must also include an affidavit made under oath stating the specific statements, actions, or facts that caused a reasonable fear of significant dangerous acts by the respondent.3
1 Fla Stat. § 790.401(1)(a)
2 Fla Stat. § 790.401(2)(f)
3 Fla Stat. § 790.401(2)(e)(1)
What protections can I get in a risk protection order?
A risk protection order (both an ex parte and a final order) will prohibit the respondent from:
- having a firearm or ammunition in his/her custody or control,
- receiving, or
- attempting to purchase or receive a firearm or ammunition.
A risk protection order will also order that the respondent give up any license to carry a concealed weapon or firearm.1
A risk protection order must also have the following:
- an explanation of why the order was issued;
- the date the order was issued;
- the date the order ends;
- whether the respondent must complete a mental health evaluation or chemical dependency evaluation;
- the address of the court where any court paperwork should be filed; and
- a statement that includes a warning to the respondent to turn firearms and ammunition in to law enforcement.2
1 Fla Stat. § 790.401(7)(a)
2 Fla Stat. § 790.401(3)(g)
How will a judge make a decision about whether or not to grant the order?
The judge will consider several factors when deciding whether there is a legal reason to grant a risk protection order. The judge will consider any related evidence and whether the respondent:
- has committed any recent act or threat of violence against himself/herself or others (the violence does not have to involve a firearm);
- has committed any act or threat of violence in the last 12 months, including violence against himself/herself or others;
- is seriously mentally ill or has repeated mental health issues;
- has violated a risk protection order, an injunction for protection against domestic violence, an injunction against repeat, dating, and sexual violence, or an injunction for protection against stalking/cyberstalking;
- has or previously had a risk protection order, an injunction for protection against domestic violence, an injunction against repeat, dating, and sexual violence, or an injunction for protection against stalking/cyberstalking issued against him/her;1
- in Florida or any other state, has been convicted of, had “adjudication withheld,” or pleaded no contest to:
- the crime of domestic violence; or
- a crime involving violence or a threat of violence. Note: If a respondent has had “adjudication withheld,” this means that the judge has decided it is unjust to require the respondent to serve the penalty allowed by the law and instead can place the respondent on probation.;2
- has used or threatened to use any weapon on himself/herself or others;
- illegally or recklessly displayed or waved any firearms;
- has used or threatened to use physical force against another person; or
- has stalked another person.
The judge will also consider evidence:
- of the respondent’s abuse of controlled substances (drugs) or alcohol;
- of the respondent recently getting firearms or ammunition;
- that includes relevant information from family and household members about the respondent; and
- from witnesses, testifying under oath, about information related to the case.1
1 Fla Stat. § 790.401(c)
2 Fla Stat. §§ 790.401(c); 948.01
What happens if the respondent violates the order?
The respondent could face criminal penalties for violating a risk protection order. The respondent is committing a felony of the third degree if the respondent:
- has firearms or ammunition in his/her custody or control; or
- purchases, possess or receives a firearm or ammunition,
- while having knowledge that a risk protection order has been issued against him/her.1
If the respondent is convicted of a felony of the third degree, s/he could face a prison sentence of up to 5 years and a fine up to $5,000.2
1 Fla Stat. § 790.401(11)(b)
2 Fla Stat. §§ 775.082(3)(e); 775.083(1)(c)