Florida’s law enforcement agencies are frequently presented with calls for service involving individuals threatening others or themselves. When qualifying conditions are met, officers may involuntarily commit those who pose a danger to themselves or others in order to obtain professional evaluation. What are officers to do when the person being investigated or involuntarily committed has access to or is in actual possession of a firearm? What might have been a common sense issue has been clouded by a recent Fourth DCA opinion discussing the issue.

In Dougan v. Bradshaw, the Fourth DCA reversed a motion to dismiss a civil lawsuit filed by a citizen who was investigated, but not involuntarily committed, for threats of self-harm and decided he was entitled to pursue his claim that the agency violated state law when it refused to return his weapons. In some circles, this opinion has been interpreted to prohibit the temporary seizure of firearms. However, Dougan does not extend that far. In that case, the court reversed an order dismissing a lawsuit challenging an agency’s policy to retain possession of firearms seized during a safety check until ordered by a Court. Family members contacted the authorities and expressed concern that the plaintiff was suicidal. Responding officers conducted a security check, but did not involuntarily commit him under Florida’s Baker Act. They did, however, remove and impound his lawfully owned firearms. The plaintiff thereafter unsuccessfully sought recovery of his property and filed suit. The trial court ordered the return of his firearms, and this lawsuit for other damages was filed.

In denying the request for the return of the firearms, the agency relied on Section 933.14, Florida Statutes and an administrative order signed by a judge that both required a court order prior to returning firearms seized during investigations. That statute requires a court order to return firearms seized by law enforcement “upon a view by the officer of a breach of the peace.” “Breach of the peace” is a generic term that includes all violations of the public peace, order or decorum. The court noted that there is not a single case finding that expression of suicidal thoughts constitutes a breach of the peace. Furthermore, the Baker Act is replete with directives that a person who is admitted under its provisions should not be treated as a criminal or deprived of any constitutional rights, and therefore, the court rejected the argument that suicidal ideation constituted a breach of the peace. Turning to the administrative order, the court recognized the Florida Legislature’s intent to preempt all firearms regulations and held that the order went beyond mere administration of the courts by attempting to alter the law. Because the court lacked the authority to establish law, the order was invalid. Because the agency’s policy to require a court order prior to returning impounded firearms was unsupported by law, it was therefore deemed invalid based on the Legislature’s intent to preempt firearms regulations. Consequently, the court ordered the firearms returned and the plaintiff pursued a claim for damages.

Importantly, Dougan examined an agency’s decision to retain firearms seized pursuant to an investigation, not the decision to impound them in the first place. Simply stated, it was the policy to refuse to return the firearms without a court order that was improper, not the seizure. Dougan does not stand for the proposition that agencies cannot temporarily impound firearms from scenes where one is investigated for or involuntarily committed for threats of self-harm or against others.

The decision to return firearms to one previously suspected of being mentally unfit is a grave one. In today’s litigious society, an agency head tasked with final policy making authority might be tempted to follow in the footsteps of the agency in Dougan and require a court order prior to releasing firearms back to a mental health suspect. Law enforcement executives do so at their own risk, the risk of their employees tasked with enforcing the illegal rule and that of their agency. Section 790.33, Florida Statutes, establishes the Legislature’s intent to preempt all regulation of firearms and declares all local ordinances, rules and regulations null and void. The statute also carries severe penalties for agency heads and agencies who willfully and knowingly disregard its provisions, including, but not limited to:

• Fine of up to $5,000 against the individual government officals or agency head under whose jurisdiction the violation occurred ;
• Prohibition on the use of public funds to defend against the allegation or to satisfy the fine;
• The establishment of grounds for termination, cancelation of contract and/or removal from office by the Governor for any employee who enacts or enforces an improper rule or regulation;
• Agency liability for injunctive and declaratory relief along with actual damages not to exceed $100,000;
• Attorney fees and costs.

Dougan establishes the law in this regard, and would likely serve to place an agency head on notice of the wrongfullness of a polciy similar to the one addressed in that court. Prior notice may serve as a rerequisite to find a willful and knowing violation, thereby exposing the agency head, his or her employees and the agency iteself to liability. Finally, an agency or agency head cannot rely on advice of counsel or good faith in defense of a policy to retain firearms absent statutory authority.

In the absence of contrary authority, Dougan is the law of the land and currently binds all trial courts in Florida. Although other District Courts of Appeal may interpret the law differently, litigation to obtain a different result will be both risky and costly. Agencies are free to develop policies on the temporary seizure of firearms from those suffering from mental health issues, however they should tread lightly when attempting to permanently deprive them of their firearms. Until other Districts evaluate the issue or the Florida Supreme Court weighs in, this decision should provide a strong defense should an agency release a firearm resulting in adverse consequences to one suspected of having mental health issues, because there is no legal alternative. In the absence of discretion, agencies’ defense counsel should have strong arguments to defend any civil litigation that may arise.

Law enforcement executives are encouraged to scrutinize agency policies regarding the seizure and retention of firearms and to contact counsel to ensure compliance with the law.