Editorial: 'Red-flag' law has red flags of its own

Hats off to Kenny Jackson, an alert former Polk County deputy.

As The Ledger reported recently, Jackson was headed into a local Five Guys for lunch in July when he spotted a Dodge Charger with an Oklahoma license plate and an AR-15 in the front seat. Smelling something fishy, Jackson notified Lakeland police. Soon afterward, officers arrested Alex Hermida Jr., who apparently mouthed off to the cops. He was arrested not for the gun but for resisting arrest without violence and assaulting a law enforcement officer.

Besides the AR-15, police subsequently discovered: a .308-caliber rifle, 1,500 rounds of ammo, 14 knives, a crossbow, a pair of machetes, body armor and a computer thumb drive featuring videos of Hermida spewing anti-government rhetoric.

Invoking Florida's new "red flag" law, enacted after the Feb. 14 massacre in Parkland, police later convinced a judge to grant a "risk protection order," or RPO, by arguing Hermida presented a threat to himself or others. The RPO allows police to seize Hermida's weapons for a year.

Lakeland's case was bolstered by an FBI background check, conducted at LPD's request. The FBI reported that Hermida was an Army combat veteran of Iraq and Afghanistan who suffered from post-traumatic stress disorder. His mother told agents that he had threatened to chop her head off with a sword and once whacked her with a tomahawk during an argument.

Red-flag laws typically permit family members or law enforcement officials to seek court approval to take guns when someone is considered dangerous. Connecticut adopted the first one in 1999. Four others had enacted such measures before Parkland. Since the massacre, eight states have done so, including Florida, and at least 10 more have considered it.

Eleven of that baker's dozen are not surprising, considering they are known for harboring hostility to guns and a proclivity for stricter gun-control laws. In that context, Florida is an outlier.

Yet strict attention must be paid to how this law is executed. The RPO process is fraught with significant potential for abusing the rights of law-abiding gun owners.

For example, judges can grant RPOs if the subject has a violent criminal history, or has threatened violence. A history or mental illness, substance abuse, or threats of self-harm also can be factors. No one argues those.

Yet, per a Florida Senate staff analysis of the law, judges may grant RPOs after considering a simple "intent" to possess guns, or "any relevant information" supplied by family members or witnesses.

Kendra Parris, an Orlando lawyer who has been critical of the law, notes on her blog that this standard is way too broad. "Virtually anything can be considered relevant," she writes.

Circuit Judge Donald Jacobsen, chief judge for the 10th Judicial Circuit, which includes Polk County, told The Ledger judges have to weigh the alleged risk against a subject's constitutional rights to bear arms, to be protected against unnecessary search and seizure and to remain silent. We would add to that the right of free speech.

Parris notes the risk doesn't have to be "concrete, likely, or imminent," and illustrated that with the example of an RPO the Orlando Police Department sought for someone who online had praised Parkland shooter Nikolas Cruz and Stephen Paddock, perpetrator of the Las Vegas massacre a year ago.

The young man suggested he may be a school shooter in the future. But he had no criminal record, no record of interaction with the police, no history of mental health problems. Police found no evidence of an actual threat on any of his electronic devices, and he had never even owned a gun.

Orlando, Parris wrote, wanted "the risk protection order based on what the respondent was thinking" (emphasis added), and the city attorney argued that police didn't "have to wait for something bad to happen" She adds: "As noble as the law’s intentions may have been, this sentiment treads dangerously close to the premise of 'Minority Report.'" The petition, Parris notes, was denied. Rightly.

We don't believe Sheriff Grady Judd, Lakeland police Chief Larry Giddens, or our other top local law enforcement officials want to get into the gun-grabbing business. But it's not a stretch to think that someone could concoct allegations of danger, or that authorities, including judges, will liberally construe a "threat," if only to avoid being the one that let a potential mass shooter fall through the cracks. Even if cleared by a judge, RPO subjects cannot recover legal costs, and run the risk of being publicly branded for mental health issues, even if none exist. Lawmakers should revisit some of these issues.

We don't know what Hermida had planned. Perhaps nothing. Or perhaps evil. Given his background, though, erring on the side of caution seemed wise. So we can applaud Kenny Jackson for following his instincts upon noticing that AR-15.

That said, however, prudence must be paramount in such cases. Once someone is considered a threat, it's a long climb back.