Florida’s first “red flag” order appellate case:
by Jon H. Gutmacher, Esq.
Davis v. Gilchrist County Sheriff’s Office, 44 Fla. L. Weekly D2407 (Fla. 1DCA 9/25/2019) is the first reported “red flag” (Risk Protection Order) appellate case in Florida. The case arose when the Sheriff’s Office sought a RPO against one of its own deputies after he became severely unstable, had a physical incident at the department with his girlfriend and another deputy, and then asked a supervisor for help because he wanted to shoot another deputy “in the face”, and told his supervisor exactly how he intended to do it. In response the Sheriff’s Office took him for Baker Act observation, and after evaluation Davis was released as “not being at risk” for further violence. The Sheriff then filed a petition with the court for an RPO, and removal of the deputy’s firearms, and the court issued a temporary order granting such, and set an evidentiary hearing according to the statute, F.S. 790.401. After taking evidence from both sides the judge held that by “clear and convincing evidence” the deputy posed a “significant danger of causing personal injury to himself or others by having a firearm in his custody or control” and issued the one year RPO. Several deputies testified at the hearing that Davis was acting irrational, aberrant, out of character, had experienced a breakdown, and was in need of mandatory mental health intervention. The appellate court noted that there was nothing ambiguous about the evidence. The evidence involved specific threats, a verbalized plan made to others to carry them out, observed loss of self control and erratic behavior, and the means to carry out his threats. In his challenge to the constitutionality of the statute – the appellate court also held that the statute passed constitutional muster as it required a “significant danger”, and was based on the Legislature’s finding that law enforcement needed a tool to counter those situations where an individual is going thru a “mental health crisis” where there is also evidence of a “threat of violence”.
While the appellate opinion is more robust in the issues involved than this summary, it does serve as a learning tool for future RPO’s. The facts in this case were compelling, and it would be hard to fault the issuance of the RPO here.
But what isn’t hard to fault is the decision by the Baker Act facility that this individual wad “not being at risk” for further violence. How can the court ignore that decision, and why weren’t the fellow officers queried as to his behavior by the doctor who evaluated him there?
Of course, I haven’t seen a transcript of the hearing, nor did the appellate opinion cover the comment, but certainly the doctor would not be the individual questioning the other deputies. That would be counsel for the deputy, who I assume spoke to his expert beforehand, in depth. Maybe a transcript would change your mind or mine — but I’d personally have a hard time giving credence to an expert who felt the reactions of the deputy were normal to the situation.