Firearms Owners Against Crime
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Institute for Legal, Legislative and Educational Action
Most Southwest Florida residents ordered to court under a new Florida law that allows authorities to take their guns will be standing alone without a lawyer.
About 80 percent of Collier and Lee county residents who have been named in risk protection order cases have faced the judge alone, the Naples Daily News and The News-Press found after analyzing all of the region’s cases through October.
That means people defending their Second Amendment gun rights who often lack even a basic understanding of courtroom procedures are almost always going up against trained city or county lawyers.
And about 90% of them will lose their guns for a year under the so-called red flag law, the analysis found.
The Daily News and The News-Press reviewed each of the 66 risk protection order cases Collier and Lee law enforcement officers pursued through October. Of the 66 people named in the cases, 53 did not have an attorney to defend them, according to court records.
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In many cases, risk protection order subjects are struggling financially and likely couldn’t afford a lawyer, reporters found after visiting several of their homes.
Legal experts worry that people who defend themselves against a civil risk protection order could jeopardize any related criminal cases they’re involved in.
But the analysis also found that having a lawyer doesn’t necessarily improve a risk protection order subject’s odds in court. Southwest Florida judges approved nine out of 10 risk protection orders, regardless of whether the person has a lawyer.
Eric Friday, an attorney with the gun-rights organization Florida Carry
Eric Friday
Florida’s red flag law, which authorizes the risk protection order process, was one of a slew of measures Florida lawmakers approved as part of the Marjory Stoneman Douglas High School Public Safety Act in the weeks after a 19-year-old former student opened fire inside the Broward County school, killing 17 people.
The law allows law enforcement officers to petition the courts to strip guns and gun rights for up to a year from people who family members, co-workers, neighbors, teachers and others have flagged as potentially dangerous.
Because risk protection orders are civil rather than criminal cases, public defenders aren’t provided.
The risk protection order provision was one of the less controversial parts of the 2018 public safety act. Lawmakers spent much more time debating a provision to arm school employees and a failed Democratic proposal to ban assault weapons.
Eric Friday, attorney with Florida Carry
You should be entitled at a minimum to an attorney to defend you.
Stripping someone of a constitutional right without providing them a lawyer is “a fundamental denial of one of the most basic premises of American liberty and freedom,” said Eric Friday, an attorney with the gun-rights organization Florida Carry, who spoke out against the law while it was being debated in the Legislature.
"You should be entitled at a minimum to an attorney to defend you," he said.
Dustin Boshara, 34, who was the subject of a risk protection order in July 2018, said going through the process was like “living in hell.”
He was accused of threatening to kill an ex-girlfriend and himself, which he denies.
“The saddest part it, no one ever asked me my side,” he said. “No one really asked me anything. I really had no say in anything, man. That was the hardest thing.”
Alone in court
Boshara, who worked for an air conditioning company and lived in East Naples at the time, had no legal training when he was ordered to court.
On one side of the courtroom were his accusers – his ex, one of her co-workers and others – and a lawyer for the Collier County Sheriff’s Office arguing that Boshara was dangerous and should be stripped of his gun rights under Florida’s new red flag law.
On the other side stood Boshara, alone.
Interactive graphic: View graphic about Florida's new red flag law
As he prepared to face a judge, Boshara brushed up on basic courtroom terminology.
“A fricking ex parte, I didn’t know what that meant,” he said. “I had to pretty much Google and learn that stuff. I didn’t know it.”
According to a Sheriff’s Office affidavit, Boshara threatened his ex saying “he would shoot her then kill himself,” and “I’m going to take us both out if you don’t tell me the truth.”
But Boshara claims the accusations against him were fabricated by his ex and some of her co-workers after an argument.
He never threatened to kill anyone, he said. He wasn’t suicidal. In court, he said, his accusers never produced any threatening texts, only “word of mouth.”
He was never arrested or charged with a crime. Deputies never took him to a mental health facility under the state’s Baker Act law.
They just said he shouldn’t have guns.
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Boshara recounted the day he walked out of his apartment and was surrounded by deputies who searched his truck for guns.
They told him to sit on the tailgate. He said he waited for an hour and a half for two more deputies to arrive with risk protection order paperwork signed by a judge giving them permission to take his guns and ordering him to court.
“It was telling me I was crazy, I was suicidal, I could hurt people,” he said of the risk protection order documents. “And I’m sitting there not even knowing where this is even coming from.”
Dustin Boshara
That was it. My Second Amendment rights were gone.
He felt “blindsided” in court two weeks later, he said.
“There was a lawyer speaking for all of them on behalf of the sheriff’s department. And I’m sitting there by myself asking for a lawyer. They’re telling me we don’t have time for a lawyer.”
The hearing lasted about an hour and a half, according to notes in the court file. A Sheriff’s Office lawyer called two witnesses to testify against Boshara, who testified on his own behalf.
Collier Circuit Judge Christine Greider sided with the Sheriff’s Office and approved the risk protection order, finding “clear and convincing evidence” that Boshara posed a “significant threat” to himself or others by having guns.
“That was it,” Boshara said. “My Second Amendment rights were gone.”
When asked about Boshara’s case, Lt. Leslie Weidenhammer, who heads the Collier County Sheriff’s Office’s mental health bureau and oversees the agency’s risk protection orders, said “the best we could tell he was in a crisis” and “not making good decisions.” She said deputies had talked with Boshara’s mother “who was concerned about his behavior.”
She said Boshara had two weeks before his final risk protection order hearing to find a lawyer if he wanted one. According to the law, the risk protection order paperwork is required to inform subjects that they "may seek the advice of an attorney."
“I can be empathetic,” Weidenhammer said. “It’s tough to get a lawyer.”
Watch: Florida's red flag law explained
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Due process concerns
There is nothing in the risk protection order statute guaranteeing either party an attorney. But the law requires that risk protection order petitions be filed by law enforcement officers who usually are represented by agency or city lawyers.
Hiring a private lawyer is expensive for risk protection order subjects, said Friday with Florida Carry.
“Most Americans couldn’t come up with $2,500 that they needed for an emergency bill,” he said. “How are people supposed to do this?”
Lee Hollander, a Naples-based criminal defense attorney, called Florida's red flag law “somewhat short on due process protection.”
Dorothy Edwards
Lee Hollander, a Naples-based criminal defense attorney, has defended one client in a risk protection order case, but only because he was also representing the client in a related criminal case. He called the law “somewhat short on due process protection.”
He worries that targets of risk protection orders could jeopardize their criminal cases by defending themselves in the risk protection order hearing.
“You could say something that could be used against you in the criminal case because you just don’t know any better,” he said.
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Even some risk protection order proponents acknowledge the due process concerns.
“I could see how it would be one-sided,” said Weidenhammer, with the Collier County Sheriff’s Office. But, she added, “It is fairly tough for us, too.”
Gun seized by law enforcement from a person who was the subject of Florida’s new red flag law.
LCSO
Law enforcement has to have a “rock-solid” case to convince a judge that the risk protection subject shouldn’t have guns, she said.
Friday said the police agencies always have an advantage, and the targets of the risk protection orders who don’t have lawyers have, “by definition, been alleged to be mentally unfit.”
“They are not mentally fit enough to exercise good judgment with a firearm, but more than fit enough to act as their own lawyer?” Friday asked rhetorically.
Andy Pelosi, co-chair of the Florida Coalition to Prevent Gun Violence and a proponent of risk protection orders, said, "you could argue everyone subject to an extreme risk protection order should be afforded counsel. But that’s not for my organization to decide. That’s for the Legislature to decide."
"What we’re trying to do is decrease the number of people that are shot, injured and killed,” he added.
Judges approve 90% of risk protection orders
Show caption Hide caption Miguel Fleming, left, a Cape Coral Police detective who is responsible for handling his department’s risk protection orders, prepares for a hearing at the Lee... Miguel Fleming, left, a Cape Coral Police detective who is responsible for handling his department’s risk protection orders, prepares for a hearing at the Lee County courthouse in mid-November. A Naples Daily News and News-Press analysis of Southwest Florida’s risk protection order cases found that about 80% of the people named in the orders don’t have a lawyer to defend them in court.
Andrew West/The USA Today Network, The News-Press
So far in Southwest Florida, having an attorney present during a risk protection hearing seems to have little bearing on whether the judge will ultimately approve the order.
Overall, judges approved 59 of the 66 risk protection orders that Collier and Lee law enforcement officers sought through October, or about 90%.
Miguel Fleming, a Cape Coral detective
Having access to an attorney doesn’t necessarily guarantee your success.
Of the 13 cases where the defendants had a lawyer, judges approved 12 risk protection orders, or about 92%.
By comparison, of the 53 cases where the defendants didn’t have a lawyer, judges approved 47, or roughly 89%.
“Having access to an attorney doesn’t necessarily guarantee your success,” said Miguel Fleming, a Cape Coral detective who manages his department’s risk protection orders. “There’s plenty of people who have been convicted of crimes that would tell you that.”
Still, he said, stripping someone of a constitutional right is not something to take lightly.
“Absolutely not. And I don’t,” he said. “I take everything that I sign my name to seriously.”
‘They made me feel crazy’
Boshara said it wasn’t until after the risk protection order hearing that he became depressed. After breaking up with his girlfriend and moving out of his apartment, he said, he now had law enforcement “coming at me telling me I was a bad person.”
"And I didn’t understand it," he said, "and no one could give me answers."
More: Here's who lost gun rights in Collier, Lee counties under Florida's red flag law
After being involved in a car crash with a company vehicle, Boshara lost his job with an air conditioning company, in part because of the risk protection order, he said.
“They pointed to those two things as me having problems,” he said. “They said that wreck, I might have been trying to take my life.”
As part of the risk protection order, Boshara was ordered to get a mental health evaluation.
“I wasn’t crazy by any means,” he said, when asked what the evaluation found. “But at that point, my whole life was almost gone, because they made me feel crazy.”
Gun seized by law enforcement from a person who was the subject of Florida’s new red flag law.
Collier County Sheriff’s Office
The risk protection order barred Boshara from owning or buying guns for a year. After the year was up, the Sheriff’s Office gave him his guns back, no questions asked, he said.
Nobody ever checked up on him after his court appearance, he said. Weidenhammer said that deputies tried, but Boshara didn’t answer their calls.
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Boshara said he would better understand law enforcement's concerns if he had a history of violence, but he doesn't. He's never been charged with a violent crime in Collier County, according to court records.
"I would never hurt a fly. I’m definitely a lover, not a fighter."