Can the Government Take Your Guns Without Charging You with a Crime?

By: John Guidry

This is America, the freest country on Earth. But don’t let that title fool you; our government can take your liberty. Our government can take your house. And yes, our government can take your guns.

They can do all of this without you ever being accused of a crime.

• Your House: If the government wants to build a highway and your house is in the way, consider it gone. It’s called Eminent Domain.
• Your Liberty: If the government thinks you are a harm to yourself or others, they can imprison you in a mental hospital for 72 hours against your will. It’s called the Baker Act.
• Your Guns: If the government believes you pose a danger, they can seize your firearms and ammunition for up to a year. It’s called a Risk Protection Order (RPO).

Has law enforcement served you with a Risk Protection Order?

You have a limited time to fight for your Second Amendment rights. Call John today at (407) 423-1117.

The Legal Breakdown: Florida Statute 790.401

Created in the aftermath of the Parkland shooting, the Risk Protection Order is found in Florida Statute 790.401. It allows the police to preemptively disarm a citizen they believe is “dangerous,” even if that citizen hasn’t broken a single law.

Here is how the process works:

1. The Petition: A police department or Sheriff’s Office files a request with a judge. They usually cite reports from friends or family claiming a citizen is suicidal or a threat to others.
2. The “Ex Parte” Temporary Order: In most cases, the judge signs a Temporary Risk Protection Order immediately. “Ex Parte” means they do this without you being present.
3. The Seizure: Police show up at your house unannounced to take your guns, ammunition, and Concealed Weapons Permit. The burden of proof here is low—just “reasonable cause.”
4. The 14-Day Clock: Once your guns are taken, the State has 14 days to hold a formal hearing.

The Final Hearing: Turning the Tables

While the temporary order is easy for the police to get, keeping your guns for a full year is much harder. At the final hearing, the police must prove by clear and convincing evidence that you continue to pose a significant danger.

This is a high bar, and we have strategies to beat it.

The Baker Act Defense: Often, an RPO comes with a side order of a Baker Act. Paradoxically, being Baker Acted can actually help your defense.

• To be released from a Baker Act hold, mental health doctors must certify that you are no longer a threat to yourself or others.
• If you have been released days before your RPO hearing, we argue: Why should the judge trust a police officer’s “hunch” over the medical opinion of the doctors who just cleared you?

John’s Takeaways

If you are facing an RPO in Orange, Seminole, or Osceola County, here is the reality of the situation:

• It’s Not Criminal, But It’s Serious: You aren’t being charged with a crime, but you are losing a constitutional right. Treat this hearing like a trial.
• One Shot at Early Return: If the judge rules against you, your guns are gone for a year. However, the statute allows you to file one petition during that year to request them back early. We can help with this, but it requires careful timing and planning.
• Suicide is the Main Driver: Most of these cases involve allegations of self-harm, not threats to others. If we can prove you are stable (using the Baker Act release), we can often defeat the order.
• Don’t Go It Alone: The police will have their attorneys there. You need someone on your side who knows the statute and how to challenge their “evidence.”

Fight for Your Rights

The government has plenty of tools to take your property and your rights. Don’t let them do it without a fight.

We defend against Risk Protection Orders, and even if an order is already in place, we can represent you to have it removed before the year is up.

Call me at (407) 423-1117. Let’s get your property back.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.