The allegations in opposition to Kevin Morgan had been alarming. They described simply the type of circumstances that Florida legislators had in thoughts after they authorized that state’s “purple flag” legislation in 2018, three weeks after the mass taking pictures at Marjory Stoneman Douglas Excessive College in Parkland.
Morgan’s estranged spouse, Joanie, claimed he was depressed, suicidal, and obsessive about the apocalypse, which he thought was imminent. She mentioned he was stockpiling meals, gold, weapons, and ammunition in anticipation of the tip occasions; that he talked about seeing, listening to, and wrestling with demons; and that he had carried out a ritual that concerned rubbing “oils” on their youngsters and the partitions of their home. She reported that he was abusing the medicine he had been prescribed for continual ache, had talked about dismembering his former spouse, had intimated he would do the identical to her if she ever disrespected him, and had threatened to kill her with succinylcholine, a paralytic agent used throughout surgical procedure and intubation.
On the energy of such claims, Joanie Morgan obtained a brief home violence safety injunction, an involuntary psychiatric analysis order beneath the Florida Psychological Well being Act (a.ok.a. the Baker Act), and a brief “threat safety order” beneath the red flag law, which authorizes the suspension of an individual’s Second Modification rights when he’s deemed a risk to himself or others. All three had been ex parte orders, that means they had been issued with out giving Kevin Morgan an opportunity to rebut the allegations in opposition to him.
However when it was time for a decide to determine whether or not the preliminary gun confiscation order, which was restricted to 14 days, needs to be prolonged for a 12 months, Morgan obtained a listening to, and the lurid image painted by his spouse disintegrated. By the tip of the listening to, in a unprecedented flip of occasions not like something you might be more likely to see in a courtroom drama, the lawyer representing the Citrus County Sheriff’s Workplace, which was looking for the ultimate order, conceded that he had not met the legislation’s evidentiary customary, and the decide agreed.
This weird case vividly illustrates why authorized illustration and significant judicial assessment are essential to guard gun house owners from unsubstantiated complaints beneath purple flag legal guidelines, which 17 states and the District of Columbia have enacted. However it additionally exhibits that police and prosecutors, who in Florida are the one events approved to file purple flag petitions, aren’t essentially diligent about investigating allegations by individuals who could have an ax to grind. That downside is very severe within the states that enable petitions by broad classes of people whose accounts could also be coloured by private animus, together with present or former spouses, lovers, and housemates in addition to in-laws and shut or distant blood family. With out satisfactory safeguards, respondents can lose their constitutional rights based mostly on little greater than an aggrieved particular person’s unverified assertions.
‘It Wasn’t Him That Had Gone to the Home’
Circuit Choose Peter Brigham issued the ex parte risk protection order in opposition to Morgan on September 18, 2018, six months after Florida’s purple flag legislation took impact, in response to a petition by Rachel Montgomery, a detective with the Citrus County Sheriff’s Workplace. It was the primary time the sheriff’s workplace had used the legislation.
Within the affidavit supporting her petition, Montgomery mentioned she responded to a grievance from Joanie Morgan alleging that her husband had violated the momentary home violence safety injunction by returning to the home in Citrus Springs they used to share and retrieving clothes, medicines, “a number of firearms,” and his Ford Mustang. Montgomery paraphrased the claims Joanie Morgan had made in her petitions for the injunction and the Baker Act examination: that “the respondent has had a decline in psychological stability over the past 4 months” and “has displayed irratic [sic] behaviors to incorporate making threats to dismember a former paramour and threats to kill his whole household whereas yielding [sic] a vial containing a paralytic agent.” She added that “the respondent has bought a number of firearms and ammunition throughout this time interval.”
At this level, Montgomery later testified, she had achieved no investigation past speaking to Joanie Morgan and studying her petitions. Montgomery mentioned she subsequently found there was no foundation for the declare that Kevin Morgan had violated the injunction by visiting the home. “I decided that it wasn’t him that had gone to the home,” she mentioned. “It was truly a pool upkeep employee that had been by the home.” Moreover, “the firearms had been transferred previous to his threat safety order” in response to the home violence injunction, that means there have been no weapons for Morgan to retrieve from the home.
Montgomery did learn the Baker Act petition that led to Morgan’s court-ordered psychiatric analysis, however she didn’t point out the end result of that analysis. On September 13, 2018, police handcuffed Morgan and took him to The Facilities, a psychological well being facility in Ocala, the place he spent the night time. The following day, a psychiatrist decided that he didn’t meet the legislation’s standards for involuntary remedy. A discharge type dated September 14, 2018, described Morgan as “alert and oriented” and “calm and cooperative.” It defined that “Kevin was evaluated by the psychiatrist and it was decided that Kevin doesn’t current as a hazard to himself or others.”
But right here was Montgomery, 4 days later, asserting that there was “affordable trigger to imagine” Morgan “poses a major hazard of inflicting private harm” to himself or others “within the close to future.” Choose Brigham agreed, and there was no cause to assume he would not. Statewide data point out that Florida judges at all times grant petitions for ex parte threat safety orders.
A follow-up psychological well being report from The Facilities, written two days after Brigham authorized the momentary threat safety order, described Morgan’s look as “acceptable,” his conduct as “compliant,” his temper as “steady,” his thought course of as “organized,” and his judgment and impulse management as “good.” Based mostly on prescription data and a drug display, Stefanie Glover, a licensed psychological well being counselor at The Facilities, reported that Morgan was “displaying no drug abuse.” She additionally mentioned Morgan “didn’t show any indicators or signs of paranoia, psychosis or delusions.” Within the “trauma” part of the shape, Glover typed: “Consumer is being mentally and emotionally abused by his spouse. Consumer said that he filed for a divorce on Monday September 17th, 2018.”
Glover’s conclusions about Morgan jibed with an August 29, 2018, letter from his private doctor, Ulhaus Deven. “He has proven no signal of abusing the opioids prescribed to him,” Deven wrote. “He has not had any indication of melancholy or suicidal ideation.”
‘This Places Us in an Awkward Scenario’
On September 28, 2018, 10 days after Brigham issued the momentary threat safety order, he held a listening to to find out whether or not there was “clear and convincing proof” that Morgan posed “a major hazard” to himself or others. That’s Florida’s standard for issuing a last threat safety order, which lasts as much as a 12 months and could be renewed for an additional 12 months.
On the listening to, the sheriff’s workplace was represented by its lawyer, Robert Batsel, whereas Morgan was represented by Crystal River lawyer J. Michael Blackstone. I listened to the official audio recording of the listening to, which lasted about two hours and 20 minutes. It included testimony by Kevin Morgan, Joanie Morgan, and her mom in addition to Detective Montgomery.
Along with refuting the declare that Kevin Morgan had violated the home violence injunction, Montgomery described him as “very calm” when he was taken into custody for the Baker Act examination. Responding to questions from Blackstone, she mentioned Morgan was well mannered and cooperative, neither elevating his voice nor behaving erratically, and gave the impression to be accountable for his colleges.
Joanie Morgan’s testimony was tearful, extremely emotional, scattered, and ceaselessly imprecise. She reiterated her earlier allegations and added just a few extra. However when Blackstone requested whether or not she had any proof to corroborate what she claimed her husband had mentioned and achieved, she admitted that she didn’t.
There have been no witnesses to substantiate his alleged threats and no pictures of oil on the partitions, of the hypodermic needles he allegedly had stashed away to inject the succinylcholine, or of the meals, gold, weapons, and ammunition he allegedly had collected in preparation for the tip occasions. Nor had police ever visited the home to substantiate any of these particulars. Blackstone additionally famous that, regardless of Joanie Morgan’s portrait of her husband as dangerously deranged, she was planning to construct a brand new home with him on property they’d bought collectively in April 2018, and she or he had left her youngsters in a single day with him that August, within the midst of his supposed breakdown, to attend a convention in Tampa.
Joanie Morgan’s mom, Susan Harper-Clements, tried to again up her daughter’s portrayal of Kevin Morgan as harmful, however the proof she supplied fell notably quick. For instance, she talked about “conversations” after the 2017 mass taking pictures in Las Vegas. “Kevin had instructed me that the NRA…was all into this gun factor and that you just could not even purchase the bullets you needed, as a result of folks had been stockpiling,” she mentioned. “And he mentioned, ‘Once they’re all by means of with this, you will not be capable to purchase weapons and ammunition.'” On cross-examination, Blackstone famous that such feedback hardly proved homicidal intent. “He has by no means threatened anybody in your presence, has he?” he requested. “No,” Harper-Clements replied.
Kevin Morgan’s demeanor on the listening to was as Montgomery and the employees at The Facilities had described it: calm, well mannered, and cooperative. He denied seeing demons, making threats, or obsessing concerning the apocalypse. He denied that he had just lately been stockpiling weapons, saying he had acquired his assortment of roughly 40 rifles and handguns over the course of greater than 20 years. The one weapons he had acquired just lately, he mentioned, had been three black-powder pistols he had purchased the earlier spring and summer time—vintage replicas ill-suited for the tip occasions.
What concerning the largely empty vial of succinylcholine that his spouse had offered to sheriff’s deputies as proof of Morgan’s lethal designs? Morgan recalled that his spouse, a nurse who had labored at two native hospitals, had as soon as unintentionally introduced house simply such a vial, saying she had put it in her lab coat pocket after taking part within the remedy of a affected person who had suffered a cardiac arrest. Morgan, who additionally has a nursing diploma, had managed the emergency room at a type of hospitals, however he left that job in January 2015 due to a incapacity brought on by spinal stenosis. After that, he now not had entry to medicine similar to succinylcholine. Given the expiration date on the vial that his spouse gave to police, Morgan mentioned, it was clear he couldn’t have been the one who had obtained it.
After the final witness testified, Blackstone requested Brigham to disclaim the petition by the sheriff’s workplace. “The testimony, frankly, doesn’t make any sense,” he mentioned. “There is not any goal proof for the court docket to base a ruling on. There’s been ample alternative. The police might have gone and appeared on the inside the home and verified that there have been gold cash or gold bullion or oil on the partitions or the rest. We mainly solely have the phrase of a lady that is within the early elements of a divorce. Many of the testimony has already been contradicted by Mr. Morgan. It is unpersuasive beneath any circumstances, and the usual is ‘clear and convincing.’ With all due respect to Mr. Batsel, who I feel loads of, I do not assume he is carried that burden. At finest, it is a swearing match.”
At this level, Batsel obtained up and admitted that Blackstone was proper. “I’ve conferred with my shopper,” he mentioned, and “they will not object to me tending to agree. This places us in a clumsy scenario. The sheriff’s workplace is coming into this with all the very best intentions…The legislature has put us in a little bit of a field, and that is OK; we will determine it out. However in a ‘he mentioned, she mentioned,’ the place the proof, I frankly will agree, doesn’t meet ‘clear and convincing,’ we do not need to waste the court docket’s time.”
Blackstone thanked Batsel for his candor. “I am unable to inform Mr. Batsel how a lot I recognize, on the planet as we speak, anyone standing up and simply accepting what the information are,” he mentioned. He additionally thanked the sheriff’s workplace. “I feel we’re all studying as we go,” he mentioned. “It is a new statute. It should put large burdens on all people.”
Brigham ratified the settlement between either side that the sheriff’s workplace had didn’t make its case. “I do not assume I’ve heard clear and convincing proof,” he mentioned. “I discovered Mr. Morgan’s testimony to be credible.” Explaining his determination in an order he issued later that day, he mentioned, “The difficulty got here all the way down to a credibility dedication between the respondent and his present spouse. The court docket discovered the respondent credible and that the petition was not proved by clear and convincing proof. [Regarding] the one piece of bodily proof, a vial of medicine, [it] was by no means clearly, or convincingly, defined from whence it got here.”
‘You Must Go in and Show That You are Not Responsible’
Blackstone, who helps purple flag legal guidelines in precept, thinks Florida’s statute labored as meant on this case. “I believed you had a well-intentioned police officer who sat on the stand and instructed the reality,” he says. “I believed you had an exceptionally well-intentioned and competent lawyer for the Citrus County Sheriff’s Workplace who did a superb job. I believed I did a reliable job in representing Kevin, and I believed that the legislation labored the best way it was alleged to.”
On the similar time, Blackstone acknowledges that it is essential to have a lawyer in conditions like this. “It is at all times harmful to enter court docket with no lawyer,” he notes. With out “competent counsel,” he says, this case “might need turned out the identical method,” however “it might need turned out solely totally different.”
Florida, like practically the entire states with purple flag legal guidelines, doesn’t present court-appointed counsel for respondents. Colorado is the one state that ensures a proper to counsel for respondents who cannot afford a lawyer or select to not rent one.
Blackstone estimates {that a} single purple flag case ordinarily would price $2,500 to $5,000 in authorized charges. Morgan says Blackstone, who is also dealing with his divorce, charged him about $1,500. That was on prime of the lawyer charges and additional residing bills he incurred on account of his different authorized battles along with his spouse. “I had about $13,000 or $14,000 in financial savings, and by the point all this was achieved, I had nothing,” he says. “I used to be fortunate to have a lawyer. I used to be fortunate to have the ability to afford it.”
Morgan’s tackle Florida’s purple flag legislation is much less sanguine than Blackstone’s. The legislation ostensibly places the burden of proof on the company looking for an order. However in follow, Morgan says, “you need to go in and show that you just’re not responsible.”
The automated issuance of ex parte orders implies that when a respondent will get his day in court docket, the enjoying discipline is slanted sharply in opposition to him. The decide is deciding whether or not to keep up the presumptively protecting establishment or change course and provides the respondent authorized entry to weapons he may use to kill himself or another person. That prospect tends to loom bigger than the likelihood {that a} respondent who does not likely pose a risk will unfairly however briefly lose his Second Modification rights. These dynamics assist clarify why judges in Florida issue final orders about 95 % of the time.
Morgan’s case nonetheless exhibits that the usual of proof issues. Ultimately, each events and the decide agreed that the sheriff’s workplace had not offered clear and convincing proof. Whereas that’s the usual in most states with purple flag legal guidelines, 4 states and the District of Columbia require solely proof by “a preponderance of the proof,” that means any chance better than 50 %. When legal guidelines mix a low customary of proof with undefined phrases similar to “a major threat,” “a major hazard,” or “a threat of hazard,” the respondent doesn’t have a lot probability of prevailing.
One other safeguard is requiring that petitions be filed by police or prosecutors, as Florida does. Whereas anybody who is aware of a doubtlessly harmful individual can nonetheless share his considerations with the authorities, police are alleged to act on these considerations solely after they contemplate them well-grounded. The thought is to have dispassionate officers consider complaints from individuals who could have private biases. However that aim is defeated if police merely report and cross alongside allegations by aggrieved events.
Even permitting for Citrus County’s inexperience with the purple flag legislation on the time it sought the orders in opposition to Morgan, one has to ask why a legislation enforcement company would go to court docket with a case so weak that its personal lawyer ended up dropping out on the finish of the listening to. Police shouldn’t search ex parte orders with out proof of an imminent risk, and they need to not search last orders until they’re assured they will meet the legislation’s necessities. Such warning is very essential when judges could be anticipated to rubber-stamp ex parte orders and approve practically the entire last orders police request.
The potential price of deciding to not search or concern an order—a preventable suicide or murder—needs to be weighed in opposition to the sure price of suspending somebody’s constitutional rights. Police ought to conduct a radical investigation earlier than making an attempt to do this. On this case, simply discoverable information—together with the existence of Morgan’s supposed hypodermic needles and finish occasions stockpile, the whereabouts of his weapons previous to the momentary threat safety order, and the provenance of the succinylcholine—had been both not clarified till the listening to or remained unresolved even then.
The sheriff’s workplace “jumped right into a civil motion with out finishing a correct investigation,” Morgan says. “I do not assume the typical individual understands simply how harmful these legal guidelines are. Hopefully, if my story can get out, of us will see how simply [red flag laws] can be utilized in opposition to somebody for revenge or to get an higher hand in [a custody dispute]. I need folks to understand how these legal guidelines can be utilized improperly, within the hope that some reforms will happen. We want safety for falsely accused people and stiff punishment for individuals who abuse the system.”
