Major Florida case on return of firearms seized by law enforcement

Every now and then there's a really "super" case that comes out.  Sometimes factually great.  Sometimes legally great.   Sometimes just the breadth of the application of the case is just terrific.  This case hits a "home run" in all those areas.  The style of the case is Dougan v. Bradshaw,  41 Fla.L.Weekly D1605 (Fla. 4DCA 2016), and is a case out of Palm Beach decided on July 13, 2016.  Before I go any further,  let me congratulate the attorney for the winning appellant -- Cord Byrd, Esq., of Jacksonville Beach, Florida, and Judge Damoorgian for a really excellent and thoughtful Opinion.   One heck of a nice job!

So . . .  what's the story?

Well . . .  it seems that Mr. Dougan may have been talking about suicide, or giving an indication he was considering it to the extent that family members called the Palm Beach Sheriff's Office to send a deputy.  In doing a "safety check",  the deputy or deputies decided there was not enough indication that Mr. Dougan was actually a danger to himself to take him for psychiatric observation, however, they did seize all his firearms -- purely as a safety measure.  A fairly common practice across the State that has no legal support.  However,  that's not the issue.   The issue was days, weeks, and months later -- when Mr. Dougan made requests to the Sheriff's Office to obtain his firearms back -- they told him it was their policy not to do that unless he first obtained a "court order" to return them. Again -- a practice common across the State -- and again, totally without any legal support.

So, apparently Mr. Dougan is not the kind of person who takes that b.s. lying down -- and managed to find a pro-Second Amendment attorney who would not only take the case -- but smart enough to know how to win it.  He sued the Sheriff in a separate suit called a "replevin" to get back the guns -- which he won,  thereby getting the "court order" the Sheriff required.  And then (and this is the really good part) -- in another case, he sued the Sheriff for money damages, plus an injunction to stop the illegal policy of requiring a court order pursuant to Florida’s “Preemption Law”!   BRAVO!!!   WAY TO GO!!!   GREAT LEGAL THINKING!

Anyway -- in case you're not aware -- the cops have a perfect right to take any firearms involved in an arrest, when serving a domestic violence or similar type injunction, when observed being used in a “breach of the peace”, or seized per a search warrant.  Otherwise, there is no current lawful authority to seize firearms or weapons, or keep them for “safe keeping” reasons under Florida law, other than safekeeping of what appears to be “abandoned property”, or where other property somehow comes into the hands of the police in a voluntary fashion.  Thus, any “policy” they create about firearms runs afoul of Florida’s preemption law – which states that only the Legislature can make laws and policies pertaining to firearms.

Despite this,  the trial court dismissed Dougan’s lawsuit for damages, and left him without any further recourse other than by appeal – which he took.  In reversing the dismissal, the Fourth District Court of Appeal held that Mr.  Dougan had a perfect legal right to sue the Sheriff for damages and injunctive relief under the Preemption Law as there were no statutes that required a court order under the facts of the case, thus the Preemption Law prevented the Sheriff from creating a policy that made such a requirement.  Moreover, the appellate court held that a mental health response by law enforcement to an individual who may be threatening or contemplating suicide is also not ordinarily a “breach of the peace” – because a “breach of the peace” normally  requires the   commission of some type of crime.

So . . .  what’s the effect of this case?

Well . . .  obviously, if law enforcement has your firearms for any purpose other than holding them in evidence pursuant to a warrant, arrest, injunction, breach of the peace, or probably if they are being held in evidence for use in an actual criminal case – they need to give them back to you when you ask for them, without any court order.  Of course – you might need to show they were yours.  You’d  certainly need to make arrangements to pick them up.  But, the time and expense of getting a court order would be unnecessary – unless the law enforcement agency wanted to get sued for damages.

Last . . .  but not least, a question: Should there be a provision in Florida law that allows law enforcement to seize firearms and other weapons when responding to a “Baker Act” type situation?  My opinion is that if the police have probable cause to believe the individual needs to be taken for psychiatric observation, and takes him or her in – sure, as long as the firearms don't also belong to another family member who want to keep them for self defense.  Otherwise – only if the individual owner(s) voluntarily OK  it.  In the first instance, I think the individual should be required to obtain a court order to get them back.  In the second – no court order required after 24 hours.  Just my personal opinion.

But, hey!   Neat case, huh?