Florida Appeals Court Upholds Gun Control Law, Allowing It to Survive Constitutional Challenge

Gun Control Florida
A customer shops for a pistol at a sporting goods store on December 17, 2012 in Illinois. A Florida appeals court recently upheld the state's new red flag law over a constitutional challenge. Scott Olson/Getty

A Florida appeals court upheld the state's new "red flag" law enacted in the wake of the Parkland massacre, ruling that the statute was consistent with constitutional safeguards, a charge that gun-rights advocates have used to challenge these laws amid a broader push for gun control.

The case originates from a domestic dispute involving Gilchrist County Sheriff's Deputy Jefferson Davis, who accosted his girlfriend, also a sheriff's deputy, on the suspicion that she was having an affair with another man.

After the violent confrontation, Davis confided in the county sheriff that he wanted "to shoot" his girlfriend's lover "in the face." Davis also disclosed that he thought about using his police-issued gun in order to accomplish this.

The sheriff's office petitioned a Florida judge to remove Davis's firearm, which the judge ordered after two separate hearings examining Davis's reported conduct.

Davis lodged his objection with Florida's First District Court of Appeal, challenging the red flag law as on its face unconstitutional. Red flag laws are used by courts to temporarily disarm individuals who are believed to pose an imminent threat to themselves or others in relation to the presence of a firearm. While those laws have effectively been used in many high-profile instances in recent years, gun-rights supporters often allege that such legislation is unconstitutionally vague and does not allow defendants to justify their conduct before a weapon is confiscated.

The appeal argued that Florida's red flag law is too unclear to be applied constitutionally, in part because it used the terms "significant danger" and "mental illness." The court rejected that argument, finding that such terms are routinely used and can be further scrutinized with the aid of a dictionary if need be.

Davis also argued that the law deprives residents of their due process rights, another challenge that the judges disputed. The law requires a hearing upon any initial petition within 14 days, allowing for the case to be resolved relatively swiftly if a defendant is able to muster a sound argument.

Furthermore, the standard for confiscation is quite high, requiring a suspicion of future violent conduct that is "clear and convincing." Additionally, there are built-in safeguards to the law that allow unfavorable rulings to be corrected, such as an early suspension of a confiscation and a hard time limit of 12 months.

Gun Control Florida
Customers shop for a handgun at gun shop on November 12, 2014 in Bridgeton, Missouri. Scott Olson/Getty

The Congressional Research Service, a non-partisan think tank commissioned by the U.S. Congress, noted that constitutional challenges to red flag laws have generally been unsuccessful. While the Second Amendment was recently determined to protect an individual's right to carry, lawmakers have latitude to limit this right to law-abiding residents or for lawful purposes.

Red flag laws that stigmatize violent threats have been found to fit within this broad umbrella of Second Amendment regulations. Furthermore, due process claims have been rejected when red flag laws allow defendants to move quickly to restore their rights if they can dispute the evidence that had been used to disarm them.

According to the Giffords Law Center, a gun control advocacy group, 17 states currently have some variation of red flag law (also known as an "extreme risk" law) on the books. These laws also appear to demonstrate some effectiveness in pre-empting potential shootings.

An August study published in the Annals of Internal Medicine found that California's red flag law, the first to be enacted in the nation, identified 21 instances since 2016 in which the law was used to disarm potential mass shooters.

In one instance, a 30-year-old car dealership employee threatened to shoot his colleagues if he was fired. The employee told the person to whom he had issued these threats that he could provide advance warning in case the person wanted to escape the same fate as the other employees.

In another example, a 21-year-old man posted messages on his Instagram warning of an imminent assault on his former high school, writing "Rip" and "nobody [will] be graduating."

"In these cases, [the red flag law] allowed for immediate intervention to reduce firearm access, in most instances because of timely reports from threatened parties and members of the public," the study concluded. "It is impossible to know whether violence would have occurred had [the protective orders] not been issued, and we make no claim of a causal relationship...The limitations notwithstanding, these cases suggest that this urgent, individualized intervention can play a role in efforts to prevent mass shootings, in health care settings and elsewhere."

A lawyer for Davis did not immediately respond to a request for comment.