In a case that challenged the limits of a Florida "red flag" law allowing police to temporarily confiscate guns from potentially dangerous people, the Fourth District Court of Appeal wrote to clarify a "faulty assumption" about the law.

Florida Statute Section 790.401 was enacted after the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, making it easier for authorities to stop anyone exhibiting violent and threatening behavior, or suffering a serious mental breakdown from getting hold of guns for up to 12 months via a risk-protection order.

Although the statute says that at risk-protection order hearings, "the rules of evidence apply to the same extent as in a domestic violence injunction proceeding under s. 741.30." § 790.401(3)(e), Fla. Stat. (2018)," the Fourth DCA stressed that doesn't mean the domestic violence rules of evidence apply, or that petitioners have to demonstrate "imminent fear" or "immediate and present" danger at those hearings.

Instead, the appellate panel said that simply means the Florida Evidence Code applies in the same way it would with a domestic violence hearing.

"Also, nothing in the RPO statute requires a showing of 'immediate and present danger' or 'imminent fear,' " the opinion said. " Rather, the statute explicitly states it requires a showing that the respondent poses a 'significant danger.' "

The opinion centers around retired military veteran Christopher Blinston, who appealed after the Palm Beach County Sheriff's Office petitioned to enforce a 12-month risk protection order against him in February 2019.

Blinston argued the statute limited evidence to events within 12 months of the petition being filed. But the Fourth DCA disagreed, finding " any relevant evidence" could come in — with only a few exceptions outlined in the statute.

The law has been widely used, albeit inconsistently across Florida, with more than 3,500 risk protection orders issued since Nikolas Cruz killed 17 people and injured 17 others in the Parkland massacre.

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Related story: Florida 'Red Flag' Gun Law Used 3,500 Times Since Parkland

In Blinston's case, Palm Beach Circuit Judge Dina A. Keever-Agrama found clear and convincing evidence that he posed a danger after hearing about his prior arrests and history of domestic violence and child abuse.

Multiple witnesses described him as violent and threatening, and said he often built silencers and put scopes on his rifles late into the night, according to the opinion, which found Keever-Agrama was right to grant the petition.

Blinston also claimed his active domestic violence injunction barred the risk protection order, since it already blocked him from accessing guns. But the appellate panel found the exact opposite was true.

"The RPO statute not only requires the disclosure of an existing protection order but explicitly allows the trial court to consider compliance with the existing protection order in granting the RPO," the opinion said. "If the legislature intended for the existence of an active domestic violence injunction to preclude entry of an RPO, it would not have included express language in the statute permitting consideration of an existing protection order."

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Poorly written statute?

The sheriff's attorneys Kara Rockenbach Link and David A. Noel of Link & Rockenbach in West Palm Beach said the law enforcement official was pleased with the ruling.

"Protecting our community is the sheriff's top priority," Rockenbach said. "Being able to enforce this potentially life-saving legislation is mission critical."

Blinston's lawyer Cory C. Strolla of Strolla Law in West Palm Beach, on the other hand, was "extremely disappointed."

"Based on the fact that these risk protection orders [aka red flag law] were created under the Marjory Stoneman Douglas Act, the legislative history clearly indicates that this was specifically created for imminent mental health crisis situations," Strolla said. "The appellate court relied on the plain language of a poorly written statute and not on the actual intent of said statute's creation."

Fourth DCA Judge Dorian Damoorgian wrote the ruling, with Judges Martha Warner and Jeffrey Kuntz concurring.

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