What are my firearms rights when a Baker Act is involved?

The Florida Baker Act laws require Law Enforcement agencies to confiscate any firearm that is owned or possessed by a person who is taken into custody under a Baker Act.

Additionally, under Florida Statute §790.401, upon the Court issuing a Risk Protection Order, (RPO) even if it is a temporary Ex Parte Order, the Respondent must surrender all firearms, ammunition in his or her custody, control or possession, as well as any license to carry a concealed weapon or firearm.

In 2019, Palm Beach County State Attorney Dave Aronberg stated in an interview on MSNBC:

That law [ Risk Protection Statute; a.k.a. Red Flag law ] is being used
by law enforcement to get a judge to take away guns from someone
who is deemed a threat to himself or others, “…” It has been used about
2,500 times in the state of Florida in the past year and a half.

The good news is, under our U.S. Constitution, “Due Process Clause” all parties that are subjected to this type of government confiscation of their property, or the infringement on their rights, are allowed an opportunity to contest the government’s action in a Court of law.

In Florida, whether it is post Baker Act or there has been an RPO issued, there are procedures already enacted to allow the citizen to fight the government’s conduct. Generally, the citizen would need to file a Petition for the restoration of Right to Bear Arms, to be able to lawfully own, possess or use a firearm or ammunition post Baker Act or RPO.  This involves filing a Petition, serving it upon the State Attorney of his designated Agent in the Court, then the conducting of a hearing by a Judge, and then the Judge enters an Order (ruling) detailing the basis for the decision.  The Petitioner (citizen) is required to prove the “disability” that caused the concerns resulting in the Baker Act or RPO has been removed or sufficiently resolved and/or remedied.

Generally, we can use personal and professional character witnesses, and or, treatment and mental health experts to prove the case. A mental health expert is extremely helpful, and usually needed, to persuade a Court.  No Judge wants to make the call without a professional supporting that position. Therefore, we usually recommend using a mental health expert, to make a stronger case. The case may also require a new/current psycho-evaluation to convince the Court as well. However, sometimes it may not be necessary to have an expert at all. Sometimes, if we have other very strong facts to support the conclusion the Petitioner no longer suffers from the disability that caused the order in the first place, an expert may not be required. Additionally, there are times, the Petitioner’s facts may be so strong, and irrefutable, the State Attorney or their designated agents, may agree to the Court granting the Petition.

There are limitations on when, and how often, a Petition may re-file (a re-try) if the Petition is denied. Generally, these Petitions can only be filed 1 per year. The Petition is herd (tried) and resolved by the same Judge who issued the Order terminating the right to own and possess firearms. There is a record made of the proceedings so that a citizen can appeal the Court’s decision. However, the body of appellate law in Florida, as it relates to the RPO, is very slight, as this law is very new.