Can a Florida sheriff keep firearms taken from someone who was Baker Acted but never arrested?

Plain-English summary

The Sheriff of Bay County asked whether his office had to give back firearms that deputies had taken from people who were sent for evaluation under Florida's Baker Act, the state's mental-health commitment law. These calls often involved someone threatening suicide who was carrying a gun; the deputies took the gun, the person was evaluated, and then released with no charges. Attorney General Bill McCollum answered that, without an arrest and criminal charge, the sheriff could not keep the firearms and had to return them.

The reasoning turned on the line between civil and criminal proceedings. The Baker Act (Part I, Chapter 394) is built around the idea that people with mental illness are not criminals and keeps mental-health procedures separate from criminal ones. The act tells facilities how to handle a patient's personal effects, but says nothing authorizing a law enforcement agency to keep the weapons of someone released after evaluation. The statutes that do let officers hold confiscated firearms, sections 933.14(3) and 790.08, all depend on the person having been arrested and charged with a crime. Because a Baker Act evaluation is not a criminal charge, none of those retention provisions applied. The AG suggested the sheriff take the gap to his local legislative delegation if he wanted the law changed.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Part I, Chapter 394, Florida Statutes, is the Florida Mental Health Act, commonly called the Baker Act. Under section 394.463(1), a person can be taken for involuntary examination when there is reason to believe he is mentally ill and, because of that illness, has refused voluntary examination or cannot decide for himself whether examination is needed, together with a finding that without care he is likely to neglect himself or that serious bodily harm to himself or others may result.

The opinion stressed that the act draws a hard line between mental-health treatment and criminal process. Section 394.459(1) provides that procedures used for criminals or the criminally accused shall not be used for persons with mental illness except for protection of the patient or others, and that a person being treated keeps his constitutional rights. Section 394.458 makes it unlawful to bring firearms onto the grounds of a Baker Act facility. For personal property, section 394.459(6) lets a facility take temporary custody of a patient's effects for medical or safety reasons but requires their return on discharge unless return would be detrimental to the patient. The AG noted that nothing comparable authorizes a law enforcement agency to keep the firearms of a person discharged after evaluation.

The act does address one overlap: under section 394.462(1)(g), if a person is arrested and charged with a felony and also appears to meet the standard for involuntary examination, that person is first processed like any other criminal suspect. So firearms taken from a felony arrestee who is also subject to the Baker Act could be handled like any other felony case. That provision depends on an arrest and charge, which the sheriff's described situations did not involve. The general firearm-retention statutes, section 933.14(3) (no firearm taken by an officer is returned except by order of a trial court judge) and section 790.08 (officers may take weapons from persons arrested for various crimes), likewise require a criminal charge.

Common questions

Q: Did the sheriff have to return a gun taken during a Baker Act call?
A: Yes, according to this opinion. Absent an arrest and criminal charge, the AG concluded the sheriff had no legal authority to keep firearms taken from someone sent for Baker Act evaluation.

Q: Why couldn't the office just hold the weapons for safety?
A: The AG found no provision in the Baker Act authorizing law enforcement to retain a released person's firearms. The act treats mental-health evaluation as a civil matter, not a criminal one, and the statutes allowing officers to keep confiscated firearms all require a criminal charge.

Q: What if the person was also arrested for a crime?
A: Different situation. Under section 394.462(1)(g), a felony arrestee who also meets the Baker Act standard is processed first as a criminal suspect, so weapons could be handled as in any felony case. The arrest and charge are what trigger that path.

Q: Did the opinion suggest any fix?
A: Yes. The AG noted the gap was a problem for local law enforcement and suggested the sheriff work with his legislative delegation on amendatory legislation.

Citations and references

Statutes:

• Part I, Ch. 394, Fla. Stat. (Florida Mental Health Act, the Baker Act)
• s. 394.451, Fla. Stat. (short title)
• s. 394.463(1), Fla. Stat. (involuntary examination)
• s. 394.458(1)(a)3., Fla. Stat. (firearms unlawful on facility grounds)
• s. 394.459(1) and (6), Fla. Stat. (patient rights; return of personal effects)
• s. 394.462(1)(g), Fla. Stat. (felony arrestee processed as criminal suspect)
• s. 933.14(3), Fla. Stat. (return of seized firearm only by court order)
• s. 790.08, Fla. Stat. (weapons taken from arrestees)
• s. 8, Art. I, Fla. Const. (right to keep and bear arms)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/firearms-return-under-baker-act
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1788

Original opinion text

The Honorable Frank McKeithen

Sheriff, Bay County

3421 North Highway 77

Panama City, Florida 32405

RE: BAKER ACT – FIREARMS – LAW ENFORCEMENT AGENCIES – MENTAL HEALTH – confiscation and return of firearms by law enforcement agencies when firearm owner subject to Baker Act evaluation. Part I, Ch. 394, Fla. Stat.

Dear Sheriff McKeithen:

You have asked for my opinion on substantially the following question:

Is the Sheriff of Bay County required to return firearms that have been confiscated from persons who are sent for evaluation under Florida's Baker Act?

In sum:

In the absence of an arrest and criminal charge against the person sent for evaluation under Florida's Baker Act, the Sheriff of Bay County may not retain firearms confiscated from such persons and retained by that office.

According to your letter, officers from the Bay County Sheriff's Office are frequently dispatched to calls involving an individual who threatens suicide or behaves in a manner that results in the person being sent for evaluation under Florida's Baker Act, Part I, Chapter 394, Florida Statutes. These individuals frequently possess firearms which are taken into custody by the officer who responds to the call. You are concerned that when these individuals are released following mental evaluation and no further official action is taken, these weapons are returned.

Part I, Chapter 394, Florida Statutes, is the Florida Mental Health Act, also known as the Baker Act.[1] The Florida Legislature has expressed its intent with regard to the provisions of the Baker Act as follows:

"It is the intent of the Legislature to authorize and direct the Department of Children and Family Services to evaluate, research, plan, and recommend to the Governor and the Legislature programs designed to reduce the occurrence, severity, duration, and disabling aspects of mental, emotional, and behavioral disorders. It is the intent of the Legislature that treatment programs for such disorders shall include, but not be limited to, comprehensive health, social, educational, and rehabilitative services to persons requiring intensive short-term and continued treatment in order to encourage them to assume responsibility for their treatment and recovery. It is intended that such persons be provided with emergency service and temporary detention for evaluation when required; that they be admitted to treatment facilities on a voluntary basis when extended or continuing care is needed and unavailable in the community; that involuntary placement be provided only when expert evaluation determines that it is necessary; that any involuntary treatment or examination be accomplished in a setting which is clinically appropriate and most likely to facilitate the person's return to the community as soon as possible; and that individual dignity and human rights be guaranteed to all persons who are admitted to mental health facilities or who are being held under s. 394.463. It is the further intent of the Legislature that the least restrictive means of intervention be employed based on the individual needs of each person, within the scope of available services. It is the policy of this state that the use of restraint and seclusion on clients is justified only as an emergency safety measure to be used in response to imminent danger to the client or others. It is, therefore, the intent of the Legislature to achieve an ongoing reduction in the use of restraint and seclusion in programs and facilities serving persons with mental illness."

The act provides for voluntary or involuntary examination and treatment of mentally ill persons. Pursuant to section 394.463(1), Florida Statutes, a person may be taken to a receiving facility[2] for involuntary examination if there is reason to believe that he or she is mentally ill and because of that mental illness has refused voluntary examination or is unable to determine for himself or herself whether examination is necessary. A determination must be made that, without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself or that there is substantial likelihood that without care or treatment, serious bodily harm to that person or others may result in the near future as evidenced by recent behavior.[3]

A relevant aspect of Florida's Baker Act is its strong position that those who suffer from mental, emotional, and behavioral disorders should not, on the basis of their mental health, be treated as criminals. The act specifically requires that procedures utilized for criminals or those accused of crime "shall not be used in connection with persons who have a mental illness, except for the protection of the patient or others."[4] The act provides that a person who is being treated for mental illness shall not be deprived of any constitutional rights.[5] However, if the person is adjudicated incapacitated, his or her rights "may be limited to the same extent the rights of any incapacitated person are limited by law."[6] Thus, section 394.458, Florida Statutes, provides that it is unlawful to "introduce into or upon the grounds of [a hospital providing mental health services under the Baker Act], or to take or attempt to take or send therefrom" any firearms or deadly weapons.[7]

With regard to the return of personal effects of patients in a facility, section 394.459(6), Florida Statutes, provides in part:

"A patient's right to the possession of his or her clothing and personal effects shall be respected. The facility may take temporary custody of such effects when required for medical and safety reasons. . . . All of a patient's clothing and personal effects held by the facility shall be returned to the patient immediately upon the discharge or transfer of the patient from the facility, unless such return would be detrimental to the patient. If personal effects are not returned to the patient, the reason must be documented in the clinical record along with the disposition of the clothing and personal effects, which may be given instead to the patient's guardian, guardian advocate, or representative."

Thus, those patients who are admitted to a facility under the Baker Act may have their personal effects retained if a determination is made that the return would be detrimental to the patient. No similar provision in the Baker Act authorizes a law enforcement agency to retain custody of personal property such as firearms of those discharged after evaluation pursuant to Part I, Chapter 394, Florida Statutes.

This office has issued a number of Attorney General Opinions over the years relating to various aspects of the Baker Act including the duties and responsibilities of law enforcement officers under the provisions of the act.[8] However, a review of Part I, Chapter 394, Florida Statutes, does not reveal any statement providing direction to law enforcement regarding the disposition of weapons and firearms confiscated from persons being treated under the act. The Baker Act does provide that if a person is arrested and charged with a felony and it appears that the person comes within the statutory guidelines for involuntary examination or placement under the Mental Health Act, "such person shall first be processed in the same manner as any other criminal suspect."[9] Thus, to the extent weapons could be confiscated and retained when taken from other felony suspects, firearms confiscated from felons also subject to the Baker Act would be subject to the same treatment. The applicability of this provision depends on the person being arrested and charged with a felony and would not be helpful in the situations you have described which do not involve an arrest.

Several other statutes provide for the disposition of firearms that have been confiscated under various provisions of state law. Section 933.14(3), Florida Statutes, provides that:

"No pistol or firearm taken by any officer with a search warrant or without a search warrant upon a view by the officer of a breach of the peace shall be returned except pursuant to an order of a trial court judge."

In addition, section 790.08, Florida Statutes, provides authority for law enforcement officers to take possession of weapons and firearms found upon persons arrested for various crimes. Again, each of these statutes requires the individual to be charged with a criminal offense and, as the Baker Act makes clear, Baker Act proceedings are not criminal proceedings.[10]

In sum, it is my opinion that in the absence of an arrest and criminal charge against the person sent for evaluation under Florida's Baker Act, the Sheriff of Bay County may not retain firearms confiscated from such persons and retained by that office. You may wish to suggest to your local legislative delegation that this issue is problematical for local law enforcement and work with them to craft amendatory legislation to address these matters.

Sincerely,

Bill McCollum

Attorney General

BM/tgh

[1] See s. 394.451, Fla. Stat., providing the short title for the act.

[2] See s. 394.455(32), Fla. Stat., for a definition of a treatment facility.

[3] Section 394.463(1), Fla. Stat.

[4] See s. 394.459(1), Fla. Stat.

[5] Id. And see s. 8, Art. I, Fla. Const., providing the right of the citizens of Florida to keep and bear arms.

[6] Section 394.459(1), Fla. Stat.

[7] Section 394.458(1)(a)3., Fla. Stat. And see s. 394.458(2), Fla. Stat., making violations of this provision a felony of the third degree.

[8] See, e.g., Op. Att'y Gen. Fla. 92-46 (1992) and other Attorney General Opinions construing provisions of the Baker Act available at www.myfloridalegal.com.

[9] Section 394.462(1)(g), Fla. Stat.

[10] And see s. 394.459(1), Fla. Stat., providing the rights of patients under the Baker Act.