Florida’s ‘red flag law’: How, or will, the recent SCOTUS decision affect it? | Opinion – Florida Today

Gary Beatty, Guest columnist Published 4:36 p.m. ET May 20, 2021

Floridas "red flag law"(RFL) was enacted in response to the Feb. 14, 2018, shooting at Marjory Stoneman Douglas High School in Parkland. The purpose of the law is to disarm potentially dangerous individuals by empowering judges to order surrender of firearms from those with mental health issues.

A new United States Supreme Court case decided this past week impacts our law.

In a nutshell, the Supreme Court case involved police seizure of a firearm from a private residence after the mans wife told police he was acting erratically. The court unanimously held the seizure was illegal because it violated the Fourth Amendment.

In reaching that conclusion, the Court reaffirmed a long-standing principle that a private dwelling enjoys the very highest level of protection under the Fourth Amendment. So, the constitutional requirements to enter one must be strictly followed.

One of the justices wrote that the decision may apply to state red flag laws. Because the Florida Constitution expressly binds us to the Fourth Amendment as interpreted by the United States Supreme Court, the holding applies to our RFL.

Ariana Gonzalez weeps at a memorial to those killed in the Feb. 14, 2018, shooting at Marjory Stoneman Douglas High School in Parkland. U.S. Sen. Marco Rubio first filed red flag legislation after the tragedy.(Photo: FILE PHOTO)

Under our RFL a judge can issue an order to a person to surrender their firearms, and if necessary, to issue a separate warrant to seize firearms from within that persons residence. The statute requires only reasonable cause to issue an order to surrender firearms but requires probable cause to issue a seizure warrant. The difference is not semantic. Probable cause is a higher legal standard than reasonable cause.

Probable cause is the Fourth Amendment standard required to issue a search warrant for a residence. The current probable cause requirements for a residence search and seizure warrant in Florida have been established by our Supreme Court in accordance with the United States Supreme Court Fourth Amendment standards. Ive taught those standards for over 25 years.

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Probable cause can be established in a variety of ways. Because RFL situations will often come to the attention of a judge through information provided by a family member, I will limit this discourse to probable cause based on information provided by what the law generally refers to as an informant. The fact that a police officer brings the information received from the family member to the judge does not change that the source of the information is a family member informant.

The requirements for using information received from an informant to support probable cause to issue a warrant to enter a private home are very specific. That information must either be independently corroborated by law enforcement, or the informant him/herself must be documented by law enforcement as reliable.

Gary Beatty(Photo: FLORIDA TODAY files)

To be documented as reliable the informant must have previously provided law enforcement with verifiably true information. Under that standard a first-time reporting family member does not meet the legal standard of being a documented reliable informant, so any information from that family member informant must be independently verified by law enforcement to be used to establish probable cause.

There is, however, one category of informant considered reliable without requiring corroboration or documentation of having previously provided verifiable information. The concerned citizen informant.A concerned citizen informant is someone who has no motivation to fabricate the information they provide. That could be a family member.

But among those whose status as a citizen informant is viewed skeptically are family members who potentially have an axto grind. An estranged spouse, for instance. Given the frequency of lying under oath in divorce and child custody proceedings there is reason to suspect it will occur in the context of the RFL.

So, a request for a RFL based on information provided by an estranged spouse without corroboration, may meet the lower reasonable cause standard to issue an order to surrender firearms. The RFL expressly provides a procedure for that order to be challenged in Court, so any error in issuing it can be quickly remedied.

But first-time uncorroborated information from an estranged spouse does not satisfy the higher probable cause standard necessary to issue a warrant to enter a dwelling. Considering the potentially irremediable consequences to law enforcement officers, and civilians, inherent in executing a seizure warrant in a private home of an armed individual, the higher standard is critical.

The theory underlying our RFL is sound. But as withall laws, the devil is in the details. Judges must balance public safety with protecting the Second and Fourth Amendment rights of individuals from vindictive, false accusations. The new Supreme Court case provides guidance in reaching that balance by simply requiring adherence to existing Fourth Amendment standards.

Gary Beatty lives in Sharpes andis retired from 30 years as an assistant state attorney in Brevard County. He has a doctorate in law andiscertified in criminal trial law by the Florida Bar.

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Florida's 'red flag law': How, or will, the recent SCOTUS decision affect it? | Opinion - Florida Today