“They’re specifically designed for people who are a danger to themselves or others,” said Rocky Brancato, managing attorney of the Brancato Law Firm in Tampa, which has litigated dozens of RPO cases. 

David Katz, managing partner at the Orlando firm Katz & Phillips and lead lawyer on Florida Carry’s lawsuits, told VoxPopuli that law enforcement agencies across Florida have failed to use required forms and obtain proper sworn statements when filing risk protection orders.

Florida Carry’s lawsuit against Oakland, Ocoee, Windermere and Winter Garden and their police departments, states that they all failed to use a state-mandated RPO petition in favor of their own departmental versions of the form. 

The lawsuit claims the police chiefs violated Florida’s firearms pre-emption statute, which prevents local governments from maintaining firearms laws or restrictions that differ from state laws. The violation carries a fine of up to $5,000. 

The complaint also alleges that Oakland and Windermere’s police departments submitted risk protection orders without sworn statements from people with first-hand, or “personal,” knowledge that a gun owner was capable of dangerous acts with a firearm. 

Florida statute requires that RPO petitions be accompanied by these sworn statements, but Katz said it’s not uncommon for law enforcement officers to interview witnesses, such as family members or friends, and then fill in this information in sworn statements of their own — a violation of state law. 

“These RPOs are being issued without the mandatory information from the proper sources,” Katz said. 

Ocoee and Oakland police departments did not respond to VoxPopuli’s requests for comment. The Windermere and Winter Garden police departments told VoxPopuli they would not comment on pending litigation. 

“They’ve gotten away with it so far”

Florida statute requires that law enforcement agencies all use the official RPO petition from the Office of the State Courts Administrator (OSCA), the administrative arm of the Florida judicial system.

West Orange police departments and other agencies across the state use “locally revised” forms rather than the OSCA petition, which include most, if not all, of the information that RPO petitions are required to have by state statute. 

Still, Katz said the lack of standardization of RPO forms among law enforcement agencies is an issue, at least in part because some local department forms allow police officers to submit their own testimony in place of sworn statements from witnesses.

Kendra Parris, executive director of Parris Law in Orlando, said that law enforcement officers submitting their own testimony instead of sworn statements in RPO petitions is a problem.

“All they really need to do is get sworn statements from the actual people with direct personal knowledge, but in a lot of jurisdictions, it’s just not happening,” said Parris, who has litigated cases involving risk protection orders in Orange County and across the state. “It’s just not legally sufficient. Not really quite sure how they’ve gotten away with it so far.”

Florida Carry brought 11 similar lawsuits against law enforcement agencies in 10 other counties.

Of the other counties, the organization found Orange County had the second-highest number of departments improperly filing RPO petitions, with 10 agencies in total named in Florida Carry’s lawsuit. Only Palm Beach had more, with 15 law enforcement agencies misfiling RPO petitions.

Florida Carry co-founders and co-executive directors, Sean Caranna and Richard Nascak, did not respond to multiple requests for comment. 

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The goal is “compliance”

 The goal of Florida Carry’s RPO lawsuits, Katz said, is to bring police departments into “compliance” with state law. The organization is not challenging the constitutionality of the RPO statute itself, which was part of a series of gun reforms implemented a month after the 2018 mass shooting at Marjory Stoneman Douglass High School in Parkland, Florida left 17 people dead.

Katz believes enforcing state RPO requirements will result in fewer cases where a person has a firearm or weapon wrongfully removed from their possession based on reports that are proven to be fabricated — a situation he said he’s seen multiple times in court. 

The enforcement of the RPO statute “shouldn’t make it more difficult for law enforcement to get an RPO when it’s justified,” he added. 

But others say the lawsuit may result in fewer RPOs being filed, which could result in more fatalities. 

Parris pointed out that even if a witness is willing to report someone to law enforcement, it can  still be a challenge to get them to go through the procedure of a sworn statement. She said family members and friends sometimes won’t provide a sworn statement to police because they may not want to potentially testify against a loved one in court. 

“We know that RPOs are saving lives, and so I worry that if we were to see a substantive decrease in the number of RPOs being filed, if that would mean that we’re missing cases where people shouldn’t have guns, and that could have deadly consequences,” Spencer Cantrell, co-lead of the National Extreme Risk Protection Orders  Resource Center at the Johns Hopkins Center for Gun Violence Solutions, told VoxPopuli.

Nicole Wilson, the Orange County District 1 Commissioner and a gun-safety proponent, told VoxPopuli that her concern was that law enforcement officers’ ability to use their own discretion when pursuing “life-saving” risk protection orders could be affected. 

“I just think you can’t justify the risk of someone’s life in a procedural argument over submittals of affidavits over first-person testimony,” Wilson said.

Even so, Katz said more than 20 percent of law enforcement agencies sued by Florida Carry have already reached out with the promise to correct their RPO procedures rather than face litigation.

He declined to specify whether the police departments in West Orange County were among them.