Gun Control

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?

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Scott Keeler/ZUMA Press/Newscom

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.

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45 responses to “These Two Cases Illustrate the Pitfalls of Florida's New Gun Seizure Orders

  1. Is… is Rick Scott about to kiss that dude on the mouth?

    1. “Come to daddy.”

      1. The guy looks ready for tongue, so at least it’s consensual.

  2. 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.”

    So Governor Scott is next? Because he is a clear and present danger to every law abiding citizen in Florida.

  3. No judge is ever going to protect someone’s 2nd Amendment rights in one of these hearings. If they wrongly take someone’s guns, what is the harm? They haven’t thrown the person in jail or even fined them. And if they really are not dangerous, then eventually they can get their gun rights back or at least a judge can tell himself that. There are absolutely no repercussions for erring on the side of caution and taking away someone’s guns in this situation no matter how wrong the decision.

    Meanwhile, God help the judge who fails to take the person’s guns away and then sees that person go and do something awful. No judge wants that on their conscience, if they have one, or worse on their public record. Erring on the side of letting someone keep their guns has only downsides for the judge. So only the most courageous and principled judge will do it. The vast majority of judges won’t. And that doesn’t even account for the number of judges who loathe guns and will happily take people’s gun rights for any reason.

    Anyone who claims that these sorts of hearings will be anything but kangaroo courts where anyone can lose their 2nd Amendment rights because of an angry spouse, friend, relative or employer is either lying or has no idea how courts actually work and judges actually think. Unsurprisingly one of NRO’s village idiots, David French, who apparently is an attorney, thinks this is a great idea.

    1. This isn’t just about guns. If one of these orders is put on you, doesn’t it affect other areas of your life such as employment? I’m thinking that applying for a job when you have a restraining order on you on the grounds that you’re a dangerous person might be a waste of time.

      1. That is a very good point. I had not thought of that. It goes to the heart of the insanity of declaring someone dangerous and then not locking them up. As bad as it is to commit someone, only the most craven and careless judge would lock someone up without giving it some thought. But, signing an order takes no thought. It is so easy. And doing it is exactly what judges will do. These orders are nothing but a system to designate people effectively as “untouchables”.

      2. Yep. Any person who might use a gun to harm people might double-might use a *car*.

      3. There are a couple of more problems.

        1. If a person is mentally unstable putting them through a SWAT raid and taking their firearms won’t be very good therapy. In fact, it’s a pretty good way to shove them over the edge. But without guns, he’ll be harmless, right?
        Except the three worst U.S. mass killings I remember, Happy Land Nightclub, Murrah Federal Building, and 9-11, were “gun free.”
        2. Note that in the first case, Velasquez didn’t own a firearm. So much for the “I don’t care, I’m not a gun owner” argument. In fact, it wouldn’t be difficult for someone to tell police that the person does have a firearm. “Police! We’re here to take away your gun.” “But I don’t have a gun.” “Your ex said you threatened her with a gun. Turn it over!” “She’s lying. I really don’t have a gun.” “Look, we can do this the easy way, or the hard way.” “But really, I don’t have a gun.” “The hard way it is.”

    2. If they wrongly take someone’s guns, what is the harm?

      Violation of property rights?

      1. I meant that rhetorically.

        1. It’s okay. The government doesn’t respect property rights anyway.

      2. Violation of property rights, among other things.

    3. You can consider Judge LeBlanc among those “most courageous and principled judge[s],” because he denied the petition.

      The new law in Florida is frighteningly overbroad. The judge understandably declined to rule on the facial or as-applied constitutionality of the law (what a morass that would be!), but I can just about guarantee that it wouldn’t (won’t?) survive scrutiny if it made it to the 11th Circuit.

      Now it’s left to see if the city appeals. 95% chance they won’t, because last I checked, we don’t impose civil sanctions for thought crime in this country… yet. And they don’t want the 5th DCA to create precedent on this case.

  4. These hearings are comically absurd. They are right out of Kafka. We are saying that someone is so dangerous we must take their guns, but then still allow them to walk free. If the person is this dangerous, why aren’t we committing them? Is there something about the evil gun that makes them dangerous that any one of about a hundred other means of committing mass murder do not?

    Moreover, if it were possible to keep guns out of the hands of dangerous people by passing a law, which is all a court order is, the gun control loons would have a point. If these hearings are so effective, why don’t we have them form criminals too? You don’t want guns in the hands of criminals do you?

    The central fallacy of all gun control measures is the idea that it is possible to keep guns out of the hands of people determined to use them for evil and that doing so would make them less dangerous even if you could. This gun control measure is no different and no less insane.

    1. Yes, well, Something had to be done, and this was Something.

      1. That is right. We have to do something. Do you want crazy people to have guns!! I am utterly amazed at how many people say that without even a hint of awareness that maybe crazy dangerous people walking free is the problem.

    2. The following idea comes to mind. Re these “judicial hearings”,let’s have the proposers thereof stand before one. See how they come out,listen to the sad songs they then sing.


  5. 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.”

    And yet, people are upset that Cruz wasn’t arrested pre-emptively for literally the same thing. Obviously I disagree with those people, but I do wonder how quickly this Parris person would change their tune if this guy had actually done something.

    1. If it were easy or even possible to tell who is actually dangerous and will do something and who is just talking, we probably wouldn’t have any crime. People act like because it turned out the guy did something, it was obvious beforehand. Sorry, life doesn’t work that way. It is only obvious after you know the ending in most cases.

      1. Exactly, but it seems like people are under the impression it can be known and that ‘innocent until proven guilty’ is outdated in general and specifically. It’s a terrible precedent. That’s before you even consider the 1st amendment issues.

    2. Cruz the shooter had FOUR criminal events in his recent history: felony assault (against his Mother) Domestic Violence causing harm, caught with a dangerous weapon (knife) at school, and a second assault at school that likely would have risen to felony status. Further, I’ve read that he was involuntarily committed to a mental institution for a period of more than 72 hours. EACH ONE of these four had they been properly handled by LE (BCSO) would, mandatorily, been reported to FBI/NICS to put him on the DENY list for possession of any firearms. What happened? The school district hooh hahs had their beady little eyes on the $54Mn prize for reducing their arrest rates for kids in school. Oh yeah, they reduced the ARREST rate, alright, but did NOT reduce the CRIME rate. FBI knew or should have known about these. They had PLENTY of probable cause, but sat on their thick ends.

    3. Would you like to know how I respond? Cruz had a history of more than two dozen visits from law enforcement. Cruz ACTUALLY OWNED FIREARMS. Cruz had a history of violence. Cruz had a history of animal abuse. Cruz had a history of self harm.

      Quite literally none of these things apply to my client. He made stupid comments online – and he was stupid enough to talk to police without a lawyer. Those were his only two transgressions.

  6. How much evidence should be required to suspend people’s Second Amendment rights?

    A reasonable amount, of course. That’s all we’re asking for, reasonable gun control laws. No reasonable person could disagree with reasonable gun control laws.

    1. we already HAVE a boatload of “reasonable gun control laws”, and NONE of them “worked”… why not? Simple. The foxes charged with guarding the henhouse REFUSED to report disabling criminal conduct to FBI and NICS, thus NOT preventing this guy from buying his guns legallym neutralising the mandated Background CHeck laws prior to gun purchase.
      Beyond that, there are numerous other laws that failed to work.. transport of firearm with intent to harm, violating the Gun Free School Zones Act, probably transported that rifle loaded, concealed it without a permit (MUST be 21 to get that Mother May I Card) THEN committed how many felony murder and/or attempted murder, etc charges for every round he fired. Not to mention reckless endangerment/firearm.

  7. Doubtless the people who love the idea of these orders think that it will never be used against them. Lovers of Big Government are always shocked when their creation turns on them. It’s hard to imagine how they navigate their lives burdened with such naivete.

    1. That is because they have no clue how courts actually work. If the did, they would be terrified and stop thinking “there ought to be a law” is the response to any problem.

      1. How do you understand how courts work, John? Are you a lawyer?

        1. My understanding of how courts work is self-evident. If you understood how they worked, you would see that. Appeals to authority are a waste of time.

          1. That’s a ‘no basis for proposing to lecture others on how courts work or for questioning others’ understanding.’

            1. I have a lot of basis. What they are is none of your business. Go dox someone else. if you know anything, which you never seem to, then say it. Otherwise, stop wasting my time.

              1. Don’t bother. The good Rev. is one of the worst commenters to have come over from Volokh. This is just the same thing he’s been doing on that site for years.

  8. Contending that the two provided examples are evidence of anti-gun overreaching is precisely the type of counterproductive conduct from tone-deaf gun absolutists that reasonable Second Amendment advocates should dread.

    1. Concern troll is concerned. The cases show how easily these hearings will be abused. They show that the civil rights concerns about them are justified.

      1. That which is in agreement with the good Rev. is that which is reasonable. Got it. Must be nice to be right on everything.

        1. The practical question is how strong the backlash against gun absolutists, imposed by reasonable Americans over time, will be.

          I hope a right to possess a reasonable firearm for self-defense in the home withstands that backlash. If gun absolutists infuriate enough Americans, however, my preference might be a casualty.

  9. Everyone in contact with Cruz “noticed” his behavior & mental state. LEO did not have the tools to do anything about him, as he’d broken no laws.

    Gun enthusiasts can’t blame the mental health system failure on the one hand AND oppose Tools to bring MH issues to the fore for evaluation.

    1. How about this? I don’t blame the mental health system at all. Mass shootings have been and remain incredibly rare, happening at no higher a rate (per capita) in the US versus anywhere else in the world. We just happen to have an absolutely enormous population and a 24 hour new cycle that makes it seem like they happen all the time. But you’re still twice as likely to be killed by blunt objects of any type, and 10 times as likely to be killed by someone who’s texting while driving, as you are to be killed in a mass shooting. Triple those numbers for mass shootings committed with rifles of any type. Mass shooters are extreme outliers in the population distribution and thus basically impossible to analyze statistically. There is simply nothing you can do about them.

      1. Cue the good Rev. to question my statistical chops in 3…..2…..1…..

    2. He had broken no laws? You sure? How about his felony assault against his Mother, additional charge fromsame event SHOULD have been domestic violence causing bodily harm. FUrther assault at school (the one that got him the boot), most likley rising to felony level, possession of dangerous weapon at school (knife) ALL OF THOSE were swept under the rug to heop quailfy Broward COunty schools for a $54Mn prize for reducing their “arrest rate” of school kids. that law should be changed to eflect NOT “arrests” but “criminal activity”. The local officials refused to report thse incidents or charge him with his crimes. EACH of those, had they been properly dealt with by local authorties, WOULD have resulted in a DENY code when he tried to buy guns.

      THE LAWS ARE IN PLACE but greedy politicians want to ignore them in order to make themsevllves lok good to their supporting public.

      Further he had been comitted unvoluntarily to a mental institution for more than 72 hours… yet ONE MORE disqualifying bit if his sordid history that was NOT REPORTED and thus failed to prevent buying any guns.

      Can ANYONE imagine one new “reasonable” gun control law that WOULD have prevented this? Let’s hear it. Twenty thousand gun control laws on the books nationwide, NONE of which worked to disarm this guy, and you want “just one more”? Get real, pal. Go ahead, imagine one more rule that WOULD have prevented THIS shooting?

  10. With the stroke of a pen an ignorant, grandstanding politician sets one of the most gun-friendly states in America on the inevitable path to the fascism of California, New York, New Jersey, Connecticut and all the other firearm-paranoid jurisdictions.

    Florida Gov. Rick Scott is a total piece of shit.

  11. the numerous warning signs his brother displayed before the Parkland massacre?signs that the BCSO, along with the FBI, failed to notice.

    No, BCSO and the school admin did not “fail to notice”, they REFUSED to act on what they KNEW about. FOUR criminal acts perpetrated by this kid were NOT charged as the crimes they clearly are, thus no report to FBI/NICS to prevent his purchasing any firarms. Not to mentioin his involuntary commitment for more than 72 hours….. yet ONE MORE disabling FACT that the local people pretending to be seeking “the security of a free state” decided was not of sufficient import to be reported..

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  13. The Sheriff’s Department had it’s collective head firmly emplaced up it’s behind and they dare to point fingers. One hell of a joke in my view/

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