Florida State University Police Department Florida Risk Protection

Florida State University Police Department

Florida Risk Protection Order Act

Effective Date: 10/26/18

General Order 725

Attachments: None

Rescinds/Amends: New

Distribution: Sworn Officers

References: 790.401 Florida

Statutes, CFA 24.06M

Pages: 6

Policy - Risk Protection Orders

In March, 2018, the Florida Legislature passed the Marjory Stoneman Douglas High School Public Safety

Act. One of the provisions of the Act was creating a new Florida Statute, 790.401 which allows a law

enforcement agency to petition the court for an Ex Parte Risk Protection Order (RPO) (or Temporary

RPO) when the respondent poses a significant danger of causing personal injury to himself or herself or

others by having a firearm or any ammunition in his or her custody or control or by purchasing,

possessing, or receiving a firearm. A Temporary RPO requires the respondent to temporarily surrender

to law enforcement all firearms and ammunition owned, pending a subsequent hearing that may

consider a request for a longer period of protection (or RPO) if necessary. The statute does not affect

the ability of a law enforcement officer to remove a firearm or ammunition or license to carry a

concealed weapon or concealed firearm from any person or to conduct any search and seizure for

firearms or ammunition pursuant to other lawful authority.

It is the policy of the Florida State University Police Department to quickly and properly respond to any

threat to public safety, while still safeguarding due process rights of a respondent. The following

procedures represent an abbreviated version of FS 790.401.

Procedure

A. Petition for a Risk Protection Order

1. A petition for a risk protection order may be filed by a law enforcement officer or law

enforcement agency. An action under FS 790.401 must be filed in the county where the

petitioner’s law enforcement office is located or the county where the respondent resides. A

petition must:

a. Allege 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 or her custody or control or

by purchasing, possessing, or receiving a firearm or any ammunition, and must be

accompanied by an affidavit made under oath stating the specific statements, actions, or

facts that give rise to a reasonable fear of significant dangerous acts by the respondent;

b. Identify the quantities, types, and locations of all firearms and ammunition the petitioner

believes to be in the respondent’s current ownership, possession, custody, or control; and

c. Identify whether there is a known existing protection order governing the respondent under

FS 741.30, 784.046, or 784.0485 or under any other applicable statute.

2. The petitioner must make a good faith effort to provide notice to a family or household member

of the respondent and to any known third party who may be at risk of violence. The notice must

state that the petitioner intends to petition the court for a Risk Protection Order or has already

done so and must include referrals to appropriate resources, including mental health, domestic

violence, and counseling resources. The petitioner must attest in the petition to having provided

such notice or must attest to the steps that will be taken to provide such notice. [CFA 24.06 E]

B. Process for Obtaining a Risk Protection Order

1. An Officer who becomes aware of a situation where there is demonstrated evidence that a

person poses a significant danger to themselves or others, including a significant danger as a

result of a mental health crisis or violent behavior, and a firearm, weapon, or ammunition is

involved, shall immediately notify their Supervisor.

2. The Supervisor shall assess the situation, and if they determine that an RPO may be warranted,

they shall immediately contact the Support Services Captain or designee.

3. The FSU General Counsel’s Office will be notified immediately to assist with preparation of the

RPO Affidavit. If this is not possible, the investigations section will assist in the preparation and

submission of the affidavit to the court. In this case, the FSU General Counsel’s Office will be

provided with a copy of the affidavit and/or issued order within 24 hours.

4. A good faith effort will be made to provide notice to the family or household member of the

respondent and to any known third party who may be at risk of violence. The notice must state

that the petitioner intends to petition the court for a risk protection order or has already done

so and must include referrals to appropriate resources, including mental health, domestic

violence, and counseling resources. The petitioner must attest in the petition to having provided

such notice or must attest to the steps that will be taken to provide such notice.

C. Risk Protection Order Hearings & Issuance

1. Upon receipt of a petition, the court must order a hearing to be held no later than 14 days after

the date of the order and must issue a notice of hearing to the respondent. Upon notice and a

hearing, if the court finds by clear and convincing evidence that the respondent poses a

significant danger of causing personal injury to himself/herself or others by having in her/her

custody or control, or by purchasing, possessing, or receiving, a firearm or any ammunition, the

court must issue a risk protection order for a period that it deems appropriate, up to and

including but not exceeding 12 months.

D. Temporary Ex Parte Risk Protection Orders

1. A petitioner may request that a Temporary Ex Parte Risk Protection Order be issued before a

hearing for a Risk Protection Order, without notice to the respondent, by including in the

petition detailed allegations based on personal knowledge that the respondent poses a

significant danger of causing personal injury to himself/herself or others in the near future by

having in his/her custody or control, or by purchasing, possessing, or receiving, a firearm or

ammunition.

2. A Temporary RPO ends upon the hearing on the risk protection order, and must be served by a

law enforcement officer in the same manner as provided for service of the notice of hearing and

petition and must be served concurrently with said notice. If the court denies a petitioner’s

request for a Temporary RPO, the court must state the particular reasons for the denial.

E. Service [CFA 24.06 D]

1. The clerk of the court will furnish a copy of the notice of hearing, petition, and Temporary RPO

or RPO, as applicable, to the sheriff of the county where the respondent resides or can be found,

and/or the petitioning agency who shall serve it upon the respondent as soon thereafter as

possible on any day of the week and at any time of the day or night. The chief judge of each

circuit, in consultation with the appropriate sheriff, may authorize a law enforcement agency

within the jurisdiction to effect service.

F. Surrender of Firearms & Ammunition [CFA 24.06 A]

1. Upon issuing an RPO or temporary RPO, the court shall order the respondent to surrender to the

local law enforcement agency all firearms and ammunition owned by the respondent in his/her

custody, control, or possession, and any license to carry a concealed weapon or firearm issued

under FS 790.06, held by the respondent.

2. The officer serving an RPO or Temporary RPO will request the respondent immediately

surrender all firearms and ammunition owned by and in his/her custody, control, or possession

and any license to carry a concealed weapon or firearm issued under FS 790.06, held by the

respondent. The officer will take possession of all firearms and ammunition and any license to

carry a concealed weapon or firearm, held by the respondent, which are surrendered. If

personal service by an officer is not possible or is not required because the respondent was

present at the RPO hearing, the respondent must surrender any firearms and ammunition

owned by the respondent and any license to carry a concealed weapon or firearm, held by the

respondent, in a safe manner to the control of law enforcement immediately after being served

with the order by service or immediately after the hearing at which the respondent was present.

An officer may seek a search warrant from a court of competent jurisdiction to conduct a search

for firearms or ammunition owned by the respondent if the officer has probable cause to

believe that there are firearms or ammunition owned by the respondent in his/her custody,

control, or possession which have not been surrendered.

3. An officer taking possession of any firearm or ammunition owned by the respondent, or a

license to carry a concealed weapon or firearm, held by the respondent shall issue a receipt

identifying all firearms and the quantity and type of ammunition that have been surrendered or

seized, and any license surrendered or seized and shall provide a copy of the receipt to the

respondent or responsible party. Within 72 hours after service of the order, the officer serving

the order shall file the original receipt with the court and ensure that the agency retains a copy

of the receipt.

4. Upon sworn statement or testimony of any person alleging that a respondent has failed to

comply with the surrender of firearms or ammunition, as required by an order issued under FS

790.401, the court shall determine whether probable cause exists to believe that the

respondent has failed to surrender all firearms or ammunition owned by and in his/her custody,

control, or possession. If the court finds that probable cause exists, the court must issue a

warrant describing the firearms or ammunition owned by the respondent and authorizing a

search of the locations where the firearms or ammunition are reasonably believed to be found

and the seizure of any firearms or ammunition discovered pursuant to such search.

5. If a person other than the respondent claims title to any firearms or ammunition surrendered

and he/she is determined by the law enforcement agency to be the lawful owner of the firearm

or ammunition, the firearm or ammunition shall be returned to him/her, if:

a. The lawful owner agrees to store the firearm or ammunition in a manner such that the

respondent does not have access to or control of the firearm or ammunition.

b. The firearm or ammunition is not otherwise unlawfully possessed by the owner.

6. Firearms, ammunition and concealed carry licenses seized or surrendered will be properly

packaged and submitted to the Evidence Custodian as described in General Order 1302 –

Evidence and Property Control System. The items will be entered in the ACE Tracking System

and properly secured in the Evidence Vault. [CFA 24.06 B]

G. Return and Disposal of Firearms & Ammunition [CFA 24.06 C]

1. If an RPO is vacated or ends without extension, a law enforcement agency holding a firearm or

any ammunition owned by the respondent or a license to carry a concealed weapon or firearm

held by the respondent, that has been surrendered or seized pursuant to FS 790.401 must return

such surrendered firearm, ammunition, or license to carry, as requested by a respondent only

after confirming through a background check that the respondent is currently eligible to own or

possess firearms and ammunition under federal and state law and after confirming with the court

that the risk protection order has been vacated or has ended without extension. Refer to General

Order 1302 – Evidence and Property Control System prior to returning any firearm, ammunition or

concealed carry license.

2. A law enforcement agency must provide notice to any family or household members of the

respondent before returning any surrendered firearm and ammunition owned by the

respondent. [CFA 24.06 E]

3. Any firearm and ammunition surrendered by a respondent pursuant to an RPO which remains

unclaimed for one year by the lawful owner after an order to vacate the RPO shall be disposed of

in accordance with the General Order 1302 – Evidence and Property Control System.

Transfer of Firearms & Ammunition

A respondent may elect to transfer all firearms and ammunition owned by the respondent that

have been surrendered to or seized by law enforcement to another person who is willing to receive

the respondent’s firearms and ammunition. The agency must allow such a transfer only if it is

determined that the chosen recipient:

1. Currently is eligible to own or possess a firearm and ammunition under federal and state law

after confirmation through a background check;

2. Attests to storing the firearms and ammunition in a manner such that the respondent does not

have access to or control of the firearms and ammunition until the RPO is vacated or ends

without extension; and

3. Attests not to transfer the firearms or ammunition back to the respondent until the RPO against

the respondent is vacated or ends without extension.

Reporting of Orders [CFA 24.06 F]

1. Within 24 hours after issuance, the clerk of the court shall enter an RPO or Temporary RPO into

the uniform case reporting system and forward a copy of any order issued to the appropriate

law enforcement agency specified in the RPO. Upon receipt of the copy of the order, the agency

shall enter the order into the Florida Crime Information Center and National Crime Information

Center. The order must remain in each system for the period stated in the order, and the law

enforcement agency may only remove an order from the systems which has ended or been

vacated. Entering an RPO into FCIC/NCIC constitutes notice to all law enforcement agencies of

the existence of the order. The order is fully enforceable in any county in Florida.

2. If an RPO is vacated before its end date, the clerk of the court will forward a copy of the order to

the appropriate law enforcement agency specified in the order to vacate. Upon receipt of the

order, the law enforcement agency shall promptly remove the order from any computer-based

system in which it was entered.

J. Baker Act Provisions

1. A law enforcement officer acting in accordance with an ex parte order issued by a Circuit or

County Court, pursuant to FS 394.463(2) may:

a. Serve and execute such order on any day of the week, at any time of the day or night; and

b. Use such reasonable physical force as is necessary to gain entry to the premises, and any

dwellings, buildings, or other structures located on the premises, and take custody of the

person who is the subject of the ex parte order. When practicable, a law enforcement

officer who has received crisis intervention team (CIT) training shall be assigned to serve

and execute the ex parte order.

2. An officer taking custody of a person under the above provision may seize and hold a firearm or any

ammunition the person possesses at the time of taking him/her into custody if the person poses a

potential danger to himself/herself or others and has made a credible threat of violence against

another person.

3. If an officer takes custody of the person at the person’s residence and the criteria in paragraph have

been met, the officer may seek the voluntary surrender of firearms or ammunition kept in the

residence which have not already been seized. If such firearms or ammunition are not voluntarily

surrendered, or if the person has other firearms or ammunition that were not seized or voluntarily

surrendered when he/she was taken into custody, an officer may petition the appropriate court

under FS 790.401 for a Risk Protection Order or Temporary RPO, following the procedures

described in the previous sections of this Directive.

4. Firearms or ammunition seized or voluntarily surrendered under FS 394.463(2) must be made

available for return no later than 24 hours after the person taken into custody can document that

he/she is no longer subject to involuntary examination and has been released or discharged from

any inpatient or involuntary outpatient treatment provided or ordered under FS 394.463(2)(g),

unless an RPO entered under FS 790.401 directs the law enforcement agency to hold the firearms

or ammunition for a longer period or the person is subject to a firearm purchase disability under FS

790.065(2), or a firearm possession and firearm ownership disability under FS 790.064. The process

for the actual return of firearms or ammunition seized or voluntarily surrendered under FS

394.463(2) may not take longer than 7 days.

5. Firearms, ammunition and concealed carry licenses seized or surrendered under FS 394.463(2) will

be properly packaged and submitted to the Evidence Custodian as described in General Order 1302

– Evidence and Property Control System. The items will be entered in the ACE Tracking System and

properly secured in the Evidence Vault. [CFA 24.06 B]

K. Training [CFA 24.06 G]

Sworn members will receive training on the Florida Risk Protection Order Act.

Glossary

License – refers to Concealed Weapon or Firearm License issued by the Florida Department of

Agriculture and Consumer Services.

Periodic – an event occurring once every three years.

Petitioner: means a law enforcement officer or a law enforcement agency that petitions a court for a

risk protection order under 790.401.

Respondent: means the individual who is identified as the respondent in a petition filed under 790.401.

Risk Protection Order (RPO) – means a temporary ex parte order or a final order granted under

790.401.

MTC 10/26/18 Filed: General Order 725

Title: Florida Risk Protection Order Act

Approved: ________________________

David L. Perry, Chief

Date: ___________________

10/26/18