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Full Circle: Florida's red flag law through the eyes of a judge that issues them

Florida's red flag law explained
Judge Denise Pomponio, 13th Judicial Circuit Court of Hillsborough County.
Posted at 11:57 AM, Jun 27, 2022
and last updated 2022-06-27 18:25:58-04

TAMPA, Fla. — The debate, divisiveness and polarization about what gun safety does or doesn't do is a constant theme in society and American politics. Yet, despite that, President Joe Biden signed a bipartisan gun safety package into law on Saturday.

The Bipartisan Safer Communities Act broke a 30-year stalemate on Capitol Hill, becoming the first significant piece of federal gun reform to clear both chambers since the Brady bill.

"At a time when it seems impossible to get anything done in Washington, we are doing something consequential," Biden said.

The law includes $750 million to help states implement "red flag" laws to remove firearms from people deemed to be a danger to themselves or others and other violence prevention programs.

But, the word "red flag" means much more than how people for and against gun control interpret it. ABC Action News reporter Michael Paluska sat in on three days of risk protection hearings to learn firsthand how the legal process works and how a judge makes the final decision about who is or isn't a threat to themselves or the community.

"I think that people could learn from our state and how it's being done, and feel comfortable, that there's a balance between not just snatching guns from everybody. Because I've heard that, I've heard that from people that know I do this division, that you know, it's kind of like a gun grab," Judge Denise Pomponio told Paluska. "It's not a gun grab; nobody wants that in this division. That's not what our law is. You know, we just want to make sure that we have a layer of protection there to protect people from themselves and hurting themselves and also hurting the community. It is not a gun grab."

Judge Denise Pomponio WFTS PALUSKA.png
Judge Denise Pomponio, 13th Judicial Circuit Court of Hillsborough County

In January, Pomponio was assigned to preside over risk protection orders (RPOs). Hearings are on Monday and Thursday at 1:30 p.m. Only a law enforcement officer or agency can file a petition for a risk protection order.

Florida statute 790.401 for risk protection orders defines the term petitioner as "a law enforcement officer or a law enforcement agency that petitions a court for a risk protection order under this section. The respondent means the individual who is identified as the respondent in a petition filed under this section."

The petitions that come before Pomponio are civil proceedings, not criminal. Therefore, respondents are served and given due process just like in any other proceeding. Think of these hearings as mini-trials that includes evidence and witness testimony.

"Law enforcement brings the petitions," Pomponio said. "So, I'm dealing with petitions from not only the Hillsborough County Sheriff's Office, the Tampa Police Department, Plant City Police Department."

All are reviewed to make sure they meet Florida law regarding risk protection orders.

"I review the petition for the sufficiency, part of the petition is the police report or a sworn affidavit from law enforcement. That helps me decide whether I'm going to issue. Then there are different categories that get checked off, whether they've used a weapon, whether they've threatened to use a weapon, whether they had been Baker Acted, whether they had been arrested," Pomponio said. "Now, even when I don't feel it's sufficient to petition and I denied the entrance of the injunction, they still have to have a hearing. So, in other words, I denied the injunction, a temporary injunction. Still, it has to have a hearing where the sheriff's office or the police department has the ability to bring witnesses forward to come forward. And to hear it even further than just the paperwork."

The way our law is written, if someone isn't served by law enforcement to appear in court, the risk protection order hearing can't move forward.

Something often overlooked is that guns and ammunition are not taken away permanently. If a judge issues the RPO, the respondent will lose them for a year. However, once they fulfill the court's requirements, such as a mental health evaluation or substance abuse program, they can file a motion to vacate, and the judge can return their access to weapons sooner.

"You've said this multiple times in court, that 'this isn't a punishment, we're not here to punish you, we're here to make sure that you don't hurt yourself or others,'" Paluska said. "You're separating the man or the woman from the weapons, looking at them with empathy?"

"Well, I always tell them this is not a criminal proceeding. This is a civil proceeding," Pomponio said. "And, that's why you hear me say that 'we're not here to punish you. We're happy that you are here today, that you're sitting here." But, for the grace of God, two more seconds, and you may have followed through with your demons that night."

During the three days of hearings, we heard heartbreaking and terrifying testimony.

In a cry for help, one man told the court he wanted to kill himself.

"They got called at the wrong time," the respondent said.

We are not naming or identifying the individuals; they are not charged with a crime. They need help, not media attention.

"I had a knife, a knife to my throat. It was really just to get my dad's attention," the respondent told Pomponio.

While trying to find the words to express his feelings, the young man took a deep breath and began crying.

"Take your time," Pomponio said with an empathetic voice.

After another deep breath, the respondent thanked the deputy.

"In a way, Mr. Woolley here saved my life; you had to be here to hear that," he said. "I was with you. You're with me. And I got in the back of your car. I didn't want to be there physically, but I knew where I had to be."

"I'm sure the deputy appreciates that because they work very hard to help people," Pomponio said. "This is such a successful case because you're here in court with us. This is not a punitive court where we're here to punish you. We're glad that you're here."

"Thank you," the respondent said.

Pomponio told Paluska that many people come before the court to thank the law enforcement officers who saved their lives.

While we sat in on three days of hearings, we saw active military members stand before judge Pomponio. Some veterans with PTSD are still trying to heal from the ravages of war. Yet, men, women and people from every color and background stand before the court. The struggles with mental health don't discriminate.

Many people enter stipulations that they don't want a hearing and agree to have their guns taken away during their final hearing.

One respondent asked, "your honor may I ask the court to go ahead and let the sheriff's office keep possession of my firearms for a year while I work on my sobriety?"

The judge required the man to get a substance abuse evaluation.

"I don't want to lose my rights, but at the same time, I do want to get sober," the man said." I had two years (sober), my mom passed away in January, and I slipped, and it's been downhill since then."

"It's great to hear that you're working the steps," Pomponio said. "Excellent."

There are also chilling 911 calls admitted into evidence.

A woman called to report her ex-boyfriend was "acting really (expletive) weird."

Her 911 call may have stopped a potential mass shooting.

"He has been throughout the day making threats against himself and other people," the caller said. "Walking around the house with a gun-waving it around while he is making the threats, then stick it in his mouth and to his head saying which way should I do it?"

The 911 operator asked, "and what were those threats like?"

"That he's going to blow their head off in various ways, he's going to shoot everybody I know, everybody he knows; he's going to go up to a bar I work at and fill it with body bags," she responded.

"I will follow the law and do what I need to do," Pomponio said. "But, I think it's a positive law that the State of Florida has passed. And you know, I'm going to follow it. And if I enter the order, it's because it needs to be entered. And if I deny it is because it just didn't rise to that level, I will strictly follow the law.

Pomponio said there are no assumptions. It is all or nothing, and her decision could be the difference between life or death.

"As a judge, you got to take yourself out of whatever your personal beliefs are and do the right thing and follow the law," Pomponio said. "And this is one of those laws you want to do the right thing because if you don't do the right thing, somebody could really be hurt or killed."