These Two Cases Illustrate the Pitfalls of Florida's New Gun Seizure Orders
How much evidence should be required to suspend people's Second Amendment rights?
Two weeks ago, in response to last month's mass shooting at a Broward County high school, Florida Gov. Rick Scott signed into law a bill authorizing "risk protection orders" that suspend people's Second Amendment rights. Police already have invoked that provision at least twice, and these early cases illustrate the pitfalls of this approach to preventing gun violence, which has been endorsed by some conservatives as an alternative to broader gun control legislation.
Last week Orlando police obtained a risk protection order against Chris Velasquez, a 21-year-old student at the University of Central Florida who allegedly fantasized about shooting up schools. The Orlando Sentinel reports that other UCF students called police about a Reddit thread titled "You guys are too weak to be a school shooter," to which Velasquez, under the user name "The Real UCF Chris," had replied, "Maybe for now but not forever." Velasquez also called Parkland shooter Nikolas Cruz "a hero" and described Las Vegas shooter Stephen Paddock as "my hero."
When police interviewed Velasquez on March 5, according to the application for the order they later obtained, he admitted writing the posts and said he'd had "thoughts and urges to commit a mass shooting since his sophomore year of high school in 2014." According to police, Velasquez said that the target probably would be his former middle school or high school and that he imagined using an "AR-15-style semi-automatic rifle." But Velasquez, who did not actually own any guns, added that he "did not have the courage to go through with it, yet." It had "always just been a thought."
After that interview, police used the Florida Mental Health Act, a.k.a. the Baker Act, to require that Velasquez undergo a psychiatric examination. Under the Baker Act, an involuntary examination is justified if "there is reason to believe that the person has a mental illness" and "there is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior." Velasquez was released after the examination, meaning that whoever conducted it did not think he met the criteria for commitment, which would have required showing by "clear and convincing evidence" that, because of mental illness, there was a "substantial likelihood" that he would "inflict serious bodily harm" on himself or others "in the near future," based on "recent behavior causing, attempting, or threatening such harm."
The criteria for the newly available risk protection orders are looser. A police officer can obtain a temporary order, lasting up to two weeks, by persuading a judge there is "reasonable cause to believe" that the target "poses a significant danger of causing personal injury" to himself or others "in the near future" if he is allowed to possess firearms. No allegation of mental illness is necessary, and the target has no opportunity to contest the claims about him.
If police want to obtain an order that lasts longer than two weeks, they have to show by clear and convincing evidence that "the respondent poses a significant danger of causing personal injury" to himself or others, and at that stage the respondent gets a hearing. If the judge agrees that the burden of proof has been met, he "must issue a risk protection order," lasting up to a year, that bars the respondent from buying or possessing firearms. The order can be renewed annually, which requires additional hearings.
Florida's rules for obtaining what is known generally as a "gun violence restraining order" (GVRO) are stricter in some ways than the rules in other states. While California and Washington allow a long list of relatives and current or former housemates to seek GVROs, Florida reserves that right to "a law enforcement officer or law enforcement agency." In California, temporary orders can last up to three weeks, compared to two weeks in Florida (and in Washington). The standard of proof for a long-term GVRO in Washington is "preponderance of the evidence," meaning any probability greater than 50 percent, while Florida (like California) requires clear and convincing evidence, a heavier burden.
All three states, however, authorize initial orders, lasting two or three weeks, based on "reasonable cause" and without an opportunity for the respondent to rebut the claim that he poses a significant and immediate danger of violence. It seems doubtful that Velasquez, who according to the police had fantasized about attacking his former schools for years but had not taken any concrete steps in that direction, really posed such a threat.
Kendra Parris, a lawyer representing Velasquez's family, told the Sentinel police overreacted to "a handful of online comments—none of which was an actual threat—from a forum in which people are known to troll and act like 'edgelords.'" She described the interrogation of Velasquez as "coercive" and "shameful." Parris said police were "dragging an innocent student with zero history of violence or mental health issues through the mud."
According to the Sentinel, Velasquez's father owns a revolver that he "voluntarily" surrendered to UCF police. "We should all sleep easier at night knowing that a firearm was removed from [Velasquez's] household and that he is barred from purchasing any others," a UCF Police Department spokesman said. Maybe, but only if the ease with which police can strip people of their constitutional rights does not trouble you.
Another case, involving Nikolas Cruz's younger brother, seems even more dubious. The Broward County Sheriff's Office (BCSO) applied for a risk protection order against Zachary Cruz on Tuesday, the day after he was arrested for trespassing on the grounds of Marjory Stoneman Douglas High School in Parkland, where his brother killed 17 people on February 14. The younger Cruz said he visited the site of his brother's crimes to "reflect on the school shooting and to soak it in." WPTV, the NBC station in West Palm Beach, reports that the BCSO deputy who applied for the order against Zachary Cruz cited "a pattern of violent and combative behavior," such as "hitting glass doors, turning over furniture, cursing, and threatening and fighting family members." Yet according to WPTV, the BCSO alleges that Cruz "is a danger to himself" (emphasis added).
Zachary Cruz may well be a troubled and troublesome teenager, but the red flags cited by the sheriff's office pale beside the numerous warning signs his brother displayed before the Parkland massacre—signs that the BCSO, along with the FBI, failed to notice. It is hard to escape the impression that police, after underreacting then, are trying to make up for their failure by overreacting now.
Judges are not immune from the impulse to err on the side of disarming people, and laws like Florida's invite them to do so. The danger is that people who pose no real threat will be deprived of their constitutional rights based on fears that emphasize a horrific possible outcome while ignoring the extremely low probability that it will actually happen.
