Florida Petitioner: Fill & Download for Free

There are a number of answers that state categorically that there are no protections at all and that’s why they are unconstitutional. Depending on how these laws are written, these answers range from incomplete to flat out incorrect.For example, at least one prominent and highly upvoted answer states that these laws bypass due process entirely, with no right to face an accuser and burden shifted on the defendant.This is not correct, mostly because it misunderstands how due process works and what due process means, but it also because is not, in all cases, even a correct statement about the law in any state I have reviewed.I’m a responsible and experienced firearms owner, and I happen to also be an attorney with the expertise to read these laws.Most people (especially gun advocates) tend to think of and characterize red flag laws as “call the police, tell them someone is armed and has said/done something scary, and the cops come and take away the guns.” This is not how red flags work, and is not even merely an oversimplified description.Look at the actual text of the Florida law, Florida Statutes 790.401.First off, a petitioner must file a petition with the court for an ex parte order allowing for seizure of the guns. This means that there is due process right here. In order to get an ex parte order, that petitioner (in Florida, it must be law enforcement, in other states, it may be a close household member or caretaker such as a guardian,) must file a petition with an accompanying sworn affidavit to the court for consideration. Not just show up at the door with an officer and take them. They have to get a court order first.You know what other things we do this for?Search warrants. Domestic Abuse Harassment Restraining Orders. Emergency custody in domestic abuse situations. Child protection matters.All sorts of judicial activities.These all include due process safeguards starting with the affidavit and petition process.These have all been upheld as constitutional because they have due process.That petition process has to meet a certain standard of proof, which may be as low as a “preponderance of the evidence” or “more likely than not,” and as high as “clear and convincing,” which is fairly certain. This is significantly higher than the “probable cause” standard to get a search warrant to seize your other property, I want to note, which is still due process.These sworn affidavits in support of the ex parte motions have to state, with particularity, the statements, actions, or facts that give rise to a reasonable fear of significant dangerous acts by the respondent. And because those affidavits are sworn, they carry a penalty of perjury.The burden is on the petitioner to do all this, not the respondent.If the ex parte order is granted, the supervising court must set a hearing on the matter for the respondent to contest it. This can range from as little as within three days in some states to 14 days in states such as Florida. Notice has to be served on the respondent, and the temporary ex parte order in some states prohibits law enforcement from seizing any weapons until the hearing notice has been served (which usually happens concurrently). All due process, requiring service of process, adequate notice of what the cause of action is, and providing an opportunity to be heard on the matter.At that contested hearing, the petitioner, not the respondent, has the burden of proof to show that the respondent is a danger to self or others. In every red flag I can find, this standard is “clear and convincing evidence.” This is not a low bar. It is between a preponderance of the evidence and beyond a reasonable doubt. Due process, all right there.The respondent at this contested hearing has a right to present evidence. More due process. They have a right to cross-examine witnesses, challenge evidence presented against them, to testify or not testify, and other evidentiary hearing due process rights.Only if the judge determines that the petitioner has met their burden of proof does the court then issue a permanent order, and by permanent, I simply mean not temporary. That order may well have an expiration date on it or even a “the person can have the guns back if they complete counseling requirements and a psychologist determines they are not a danger.”All of this is due process. Right here. Due process all over the place.In addition, various law enforcement may have internal protocols to provide more safeguards. In Florida’s Broward County, for example, a petition by law enforcement has to go through a higher-level supervisory officer in the sheriff’s office who specifically deals with this stuff, and then through two different attorneys, before the sheriff’s office will even file the petition, and in Florida, only law enforcement can file that petition.Colorado’s recently enacted statute, which can be found at Colorado Revised Statutes Title 13, Article 14.5, allows for family and household member petitions, but requires the petitioner to notify law enforcement in the jurisdiction where the respondent resides so that law enforcement can participate in the ex parte hearing (meaning if the sheriff shows up at the ex parte hearing and says, “we deal with domestic squabbles between these two constantly and we don’t see any reason to take the guns” that’s on the record), and the statute requires court-appointed counsel for the respondent. Due process all over the place there.On top of all of that, every jurisdiction I’ve looked at imposes criminal penalties on false or malicious reports ranging from misdemeanor to felony charges. Which means if you make that affidavit and you just did it to harass the respondent, you are subject to possible jail time if not heavy fines. More due process safeguards, right there.Additionally, there is no “right to face an accuser.” That’s a common mistaken interpretation of the Sixth Amendment’s right to confront witnesses and evidence. That right is the right to cross-examine. There is not a right to face an accuser. That’s not what the Constitution says, and it’s never been a part of due process as a technical matter. You have the right to know who the accuser is in a criminal matter, but in criminal trials, that is the State. (We get this all the time with drug defendants who want to find out who the confidential informant is so the snitches can get their stitches.)These are not criminal matters: they are civil proceedings that do not carry criminal penalties such as fine or imprisonment. So, while you are granted a whole bunch of due process rights, certain specific ones granted to the criminally accused under the Sixth Amendment don’t apply anyway.Several answers complain about the lack of a right to a “trial” on the matter, and this is heavily misleading because a trial is not required here, but an evidentiary hearing is required. These hearings include the same due process requirements of a full trial: the right to call witnesses and cross-examine adverse witnesses, the right to present evidence, the right to counsel (sometimes even court-appointed counsel if someone can’t afford it state-depending,) and the right to have that hearing in a speedy fashion. The Rules of Evidence apply in force; if the the petitioner is relying on third-party hearsay, that is likely inadmissible.As noted above, no red flag laws in existence in the United States allow the police to bypass these procedures and just “SWAT” a house to seize guns without a warrant based on a 911 call. That is patently false and easily disprovable by looking at every red flag law enacted. It’s a common fear by gun advocates, and it is straight up not true.Law enforcement can only show up with a valid court order, granted after a petition and review by a judge, with a higher standard than a regular search warrant, under every red flag law I have been able to look at, even proposed ones such as Virginia’s.Lawful, responsible firearms owners are protected from abuse and malicious complaints with red flag laws with multiple levels of procedural safeguards and the threat of criminal prosecution for malicious petitioners who are not making a petition in good faith.This is depressing. Enjoy a basket of a baby fox and badgers.Mostly Standard Addendum and Disclaimer: read this before you comment.I welcome rational, reasoned debate on the merits with reliable, credible sources.But coming on here and calling me names, pissing and moaning about how biased I am, et cetera and BNBR violation and so forth, will result in a swift one-way frogmarch out the airlock. Doing the same to others will result in the same treatment.Essentially, act like an adult and don’t be a dick about it.Nothing, not even abortion, brings out the lunatic fringe on my answers faster than writing about guns.Listen, I’ve been around firearms my whole life. I own firearms. I probably either own or have “just ask to borrow” access to more and more types of firearms than you do. I have field-stripped, repaired, and reassembled all of the ones I own and use.I have no problem with guns.I have a problem with irresponsible gun owners who make it increasingly impossible to defend owning guns. I have a problem with people who think that guns are a dick extension. I have a problem with vigilantes. I have a problem with serial abusers who use guns as an extra threat. I have a problem with people who think guns are a general solution, not a tool with specific applications. I have a problem with people who are not responsible guns owners owning guns.And because it’s guns I’m writing about, and that brings out that extra special faction, I’m not only going to be quick on the delete/block/mute buttons, but if this gets ridiculous in the comments, I’m just going to disable them entirely. I don’t feel like playing whack-a-troll all day.Getting cute with me about my commenting rules and how my answer doesn’t follow my rules and blah, blah, whine, blah is getting old. Stay on topic or you’ll get to watch the debate from the outside.Same with whining about these rules and something something free speech and censorship.If you want to argue and you’re not sure how to not be a dick about it, just post a picture of a cute baby animal instead, all right? Your displeasure and disagreement will be duly noted. Pinkie swear.If you have to consider whether or not you’re over the line, the answer is most likely yes. I’ll just delete your comment and probably block you, and frankly, I won’t lose a minute of sleep over it.Debate responsibly.

Hey Kirstie!Great question by the way! And you know I have an interesting answer for you!Now White House officials did not provide a comment on why he's doing it. But there are several advantages to it, primarily that Florida has no state income tax. Since he signed the 2017 tax bill into law, POTUS now joins the ranks of people leaving NY. Political reasons are also in play.But let me give you a little history of the Trump clan and how the bone spurs prone illegal Trumps were welcomed with open arms in America despite they couldn’t be legally here and were draft dodgers! Yes, that’s right already way back then in 1885…On October 7, 1885, Friedrich Trump, a 16-year-old German barber, bought a one-way ticket for America, escaping three years of compulsory German military service. He had been a sickly child, unsuited to hard labor, and feared the effects of the draft. It might have been illegal, but America didn’t care about this law-breaking—at that time, Germans were seen as highly desirable migrants—and Trump was welcomed with open arms. Less than two weeks later, he arrived in New York, where he would eventually make a small fortune.***He married a woman from his German hometown, Kallstadt, where his parents had owned vineyards, and attempted to return home with his fortune. But when his draft dodging came to the fore, the couple lost their Bavarian citizenship and were obliged to return to America for good.(www.history.com/...)That the very son of the first draft evading illegal Trump would one day wear the white robes himself (www.vice.com/...) is ironic and something that in a normal family capable of embarrassment would be disturbing and even humbling.Yes, Fred Trump was a berobed marcher.Who’d a thought that one day the son of a white-sheeted knight of Queens would rise to the presidency and, for tax and political purposes, try to give the appearance of moving his racist ass to Palm Beach sort of for keeps. It’s time to peer deeply into his empty heart on this. GaltisalieNow the very son of that white-robe wearing Trump says he wants to bring his domicile and his most personal effects (diaries, black books, secret tanning products, dear old dad’s racist momentos, etc.) in a U-Haul to the Sunshine State (www.nytimes.com/...). This time, in addition to leaving his white-robe sympathizing ways behind and other acts of sincere contrition, he better be prepared to bring clear and convincing proof. Smart people with subpoena power will want to peer deep within his empty heart to discern the truth, which could be challenging to both the auditor and the audited.To prove a change of domicile, the asserting party must prove the change of domicile by clear and convincing evidence.17 As previously mentioned, proving domicile is a fact-intensive inquiry. New York’s Appellate Division has stated that “no single factor is controlling and the unique facts and circumstances of each case must be closely considered.”18 In Matter of Rudolph (Deceased) & Loretta Zapka, New York Department of Taxation Appeals, DTA No. 804111 (June 22, 1989), the taxpayers argued they changed their domicile from New York to Florida, but they had strong ties to both New York and Florida. New York’s Tax Appeals Tribunal stated that “[t]he mere fact that persuasive arguments can be made from the facts in support of both Florida and New York as petitioners’ domicile indicates that they have not clearly and convincingly evidenced an intent to change their New York domicile.”19 Accordingly, establishing strong ties in a new location may not be sufficient evidence of intent if strong ties are continued with the old domicile.***After changing domicile, New York may challenge the individual’s nonresident filing status for income tax purposes via an income tax audit. During an audit, three issues are examined, starting with the domicile of the individual. If it is determined that the individual is not domiciled in New York, the next issue is whether the individual is a New York statutory resident. If the individual is determined to be a New York statutory resident, the third issue is the allocation of income. The scope of the audit will be based on the facts involved.***In determining domicile, the guidelines require the auditor to examine two general categories: primary factors and other factors.34 There are five primary factors: the home; active business involvement; time; items “near and dear”; and family connections. If the auditor has not reached a supportable conclusion based upon the five primary factors, the auditor will examine “other” factors, including, but not limited to:35• Citation in legal documents, such as wills, that a jurisdiction is the place of domicile.• Address at which bills, financial statements and correspondence concerning other family business is primarily received.• Physical location of safe deposit boxes used for family records and valuables.• Location of auto, boat, and airplane registrations and driver’s or operator’s licenses.• Where the individual is registered to vote and whether he or she has exercised that right.• Possession of a New York City Parking Tax exemption.• Telephone services at each residence, including the nature of the listing, the type of service features and activity at the location.(www.floridabar.org/...)Let the auditing continue and delve even more deeply.Sources: Everyone linked in the text.

Yes, it's a big deal;It happens more often than anyone would like; andSomeone who finds themselves in this situation needs to secure competent counsel to have the injunction lifted, the custody restored, and the petitioner fined (at least) for contempt and possibly perjury.