I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I have served as a police academy legal instructor teaching officers the constitutional limits of search, seizure, and arrest, and I served as Chief Operating Officer of the Hillsborough County Public Defender’s Office. Today our attorneys defend gun and drug charges across Tampa Bay, and this question — marijuana and guns — now sits at the center of one of the fastest-moving areas in criminal law.

What Does Federal Law Say About Marijuana Users and Guns?

Federal law makes it a crime for any person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm or ammunition. That ban lives in 18 U.S.C. § 922(g)(3), and because marijuana remains a controlled substance under federal law, it has always applied to marijuana users — including Florida’s hundreds of thousands of registered medical marijuana patients. A state card has never been a defense to the federal statute, because Florida’s medical marijuana program does not change what federal law says.

The federal ban shows up in a second place that trips up ordinary gun buyers: ATF Form 4473, the questionnaire every purchaser completes at a licensed dealer. The form asks directly whether you are an unlawful user of marijuana or any other controlled substance, and it warns that marijuana remains federally unlawful regardless of state medical programs. Answering falsely is a separate federal felony. Our attorneys have seen careful, law-abiding people put themselves in federal jeopardy with one checkbox — which is why the Supreme Court’s 2026 decision matters so much, and why it must be read carefully rather than treated as a green light.

What Did the Supreme Court Decide in United States v. Hemani?

In United States v. Hemani, No. 24-1234 (U.S. June 18, 2026), the U.S. Supreme Court held that the government’s prosecution of a regular marijuana user under § 922(g)(3) violated the Second Amendment — the first time the Court has struck down the application of a federal gun ban to drug users. Ali Hemani was prosecuted for having a gun in his home while being a regular marijuana user; the government’s theory was that regular use of a controlled substance, by itself, was enough to disarm him. It did not claim he was addicted, that he was high when found with the gun, or that he posed any particular danger.

Justice Gorsuch’s majority opinion, affirming the Fifth Circuit 7-2, rejected that theory under the historical-tradition test. The government leaned on founding-era “habitual drunkard” laws, but the Court found those laws targeted people whose drinking left them “practically incapacitated and incapable of managing their affairs” — not everyone who drank regularly. The Court also stressed how the modern statute operates: it “automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user . . . all without any pre-deprivation process,” while the historical laws required some proceeding — a conviction, a guardianship, a hearing — before anyone lost liberty. And the Court pointed out that the government’s own conduct undercuts the claim that all marijuana users are categorically dangerous: federal prosecutors have been directed to curtail enforcement against marijuana users, most states have legalized some use, and the government itself recently moved certain marijuana products down the federal schedules.

For Florida gun owners who hold medical marijuana cards, the practical takeaway is this: after Hemani, a federal prosecution built on nothing more than the fact that you regularly use marijuana is unconstitutional. That is a real shield. But it is a shield with defined edges, described next.

What Did Hemani Leave Undecided?

Hemani was an as-applied ruling, not a repeal — § 922(g)(3) is still on the books, and the Court expressly reserved several theories the government may still pursue. Anyone mixing marijuana and firearms in Florida should understand exactly where the line now sits.

That last row deserves emphasis. Nothing in Hemani changed the purchase paperwork. Until ATF revises Form 4473, a medical marijuana patient who answers “no” to the unlawful-user question is still committing a federal crime, whatever the Second Amendment now says about possession prosecutions. This is exactly the kind of trap where getting legal advice before you act is worth far more than defending a charge afterward.

Does a Florida Medical Marijuana Card Take Away Your Gun Rights?

No — holding a Florida medical marijuana card does not, by itself, disqualify you from owning or possessing a firearm under Florida law. Florida’s medical marijuana statute, Fla. Stat. § 381.986, created a physician-certification system with a patient registry, and nothing in Florida’s gun statutes makes registered patients prohibited possessors.

Florida’s concealed-carry licensing statute, Fla. Stat. § 790.06, does contain drug-related disqualifiers that patients should know about. The Department of Agriculture must deny a license to an applicant who “chronically and habitually uses alcoholic beverages or other substances to the extent that his or her normal faculties are impaired,” and to anyone found guilty of a chapter 893 drug crime within the three years before applying. A conviction for a controlled-substance offense also triggers revocation of an existing license. So while the card itself is not a disqualifier, a marijuana-related conviction — even a misdemeanor — can cost you your carry license for years.

Where Is Medical Marijuana Use Still Illegal Even With a Card?

A Florida medical marijuana card authorizes “medical use” — and the statute defines that term to exclude specific places, so using marijuana in the wrong location remains a crime even for a fully registered patient. Under § 381.986, “medical use” does not include using or administering marijuana on public transportation, in any public place, in an enclosed indoor workplace, on school grounds, or — critically for Tampa Bay’s boaters and drivers — “in a school bus, a vehicle, an aircraft, or a motorboat,” with a narrow exception for low-THC cannabis not in a form for smoking. A qualified patient who uses marijuana in plain view of the public or in a vehicle or boat commits a first-degree misdemeanor.

The Sixth District Court of Appeal enforced exactly this limit in Tanaka v. State, No. 6D2024-1581 (Fla. 6th DCA June 19, 2026), a Collier County case where the court affirmed a conviction by quoting the statute’s rule that “medical use” does not cover marijuana in a vehicle, aircraft, or motorboat. The lesson for the hundreds of thousands of Floridians with cards: your protection travels with the statute’s definitions, not with the card in your wallet. Smoking in your car — parked or moving — is outside the program, and once an officer smells it, you may face both the misdemeanor and a vehicle search. Our attorneys have litigated where the odor-of-cannabis doctrine now stands in the Tampa Bay area; see our analysis of Florida’s Second DCA limiting the plain-smell doctrine.

Can 18-to-20-Year-Olds Carry a Concealed Gun in Florida Now?

As of mid-2026, Florida’s ban on concealed-carry licenses for adults under 21 has been declared facially unconstitutional by one of Florida’s appellate courts — a major shift, though not yet a statewide settled rule. In Eubanks v. State, No. 4D2025-1698 (Fla. 4th DCA June 17, 2026), a Broward County prosecution for carrying a concealed firearm, the Fourth District held that § 790.06(2)(b) — which requires concealed-carry applicants to be 21 — “is facially unconstitutional as it relates to 18- to 20-year-olds.” The court reasoned that 18-to-20-year-olds are part of “the people” the Second Amendment protects, that the State produced no historical tradition of categorically disarming young adults, and — quoting the U.S. Supreme Court’s Rahimi decision — that a group cannot be “disarmed simply because he is not ‘responsible.’” The court reversed the young man’s conviction outright.

Two cautions before anyone under 21 straps on a holster. First, Eubanks is a Fourth District decision; Tampa, Hillsborough, Pinellas, and Pasco Counties sit in the Second District, which has not yet spoken, and the State may seek further review in the Florida Supreme Court. Second, the decision addressed concealed carry — it did not touch Florida’s open-carry ban or the separate federal rules for handgun purchases by under-21 buyers. Anyone in that age group facing a carry charge should treat Eubanks as a powerful defense to raise, not a settled right to rely on. For the broader landscape — permitless carry under Fla. Stat. § 790.01, where guns are still prohibited, and how gun charges are penalized — see our guide to gun crime laws in Florida.

How Do These Decisions Change a Florida Gun Charge Defense?

They add constitutional attacks to a defense toolbox that already starts with the Fourth Amendment. When our attorneys defend a Tampa Bay gun charge involving marijuana, the analysis now runs on three tracks at once.

1. Was the stop and search lawful? Most marijuana-and-gun cases begin with a traffic stop, a pat-down, or a search justified by the smell of cannabis. If the stop was unlawfully prolonged or the frisk exceeded its limits, the gun itself can be suppressed — see our breakdown of stop and frisk law in Florida.
2. Is the charge constitutional after Hemani and Eubanks? A federal § 922(g)(3) charge premised on use alone is now unconstitutional as applied. A state concealed-carry charge against an otherwise law-abiding 18-to-20-year-old is squarely challenged by Eubanks. These arguments are raised by motion — and where a district conflict exists, preserving the issue protects your appeal.
3. Does the statute even fit the facts? Was the marijuana “medical use” within § 381.986? Was the firearm actually “possessed”? Was a license exception satisfied? The State must prove every element, and pre-file advocacy — engaging the State Attorney’s Office before charges are formalized — can resolve borderline cases before they ever reach a courtroom.

What Should You Do If You Are Arrested on a Marijuana-Related Gun Charge?

Move fast, and say nothing about your marijuana use to anyone but your lawyer. Statements about how often you use — the exact fact that decides whether the government can build a lawful case after Hemani — are routinely volunteered in the first police interview, and they are admissible. In Hillsborough County, a felony gun arrest means booking at Orient Road Jail, first appearance within 24 hours, and formal charging decisions by the State Attorney’s Office in the weeks that follow. That charging window is where an early defense presentation can change everything: our attorneys use it to put suppression problems, Hemani and Eubanks issues, and medical-marijuana documentation in front of the prosecutor before the filing decision is made. If you were just arrested, our step-by-step guide to what to do after being arrested in Tampa walks through the first 72 hours.

For more about our defense strategies, visit our Hillsborough County criminal defense page.

Frequently Asked Questions

Can I buy a gun in Florida if I have a medical marijuana card?

Florida law does not prohibit the purchase, but the federal purchase form still asks whether you are an unlawful user of marijuana, and marijuana remains federally unlawful even for state medical patients. Answering falsely on ATF Form 4473 is a federal felony that Hemani did not eliminate. Our attorneys advise cardholders on lawful paths before purchase, because this is far easier to get right in advance than to defend afterward.

Did the Supreme Court legalize gun ownership for all drug users?

No. United States v. Hemani, No. 24-1234 (U.S. June 18, 2026), held only that prosecuting a person for regular marijuana use alone violates the Second Amendment. The Court expressly left open prosecutions of people who are addicted, armed while presently intoxicated, or shown by individualized proof to be dangerous — and it did not touch the felon-in-possession ban.

Can I keep a gun in my car along with my medical marijuana?

Carrying a firearm in your vehicle can be lawful under Florida’s permitless-carry framework, but using marijuana in a vehicle is never “medical use” under Fla. Stat. § 381.986 — it is a first-degree misdemeanor even for cardholders. Combining the two also invites a search and a charging decision that treats you as an unlawful user. Keep the marijuana sealed, in its original packaging, and never use it in the car or on a boat.

Can an 18-year-old legally carry a concealed gun in Florida in 2026?

The Fourth District held in Eubanks v. State that the 21-and-over rule in § 790.06(2)(b) is facially unconstitutional, but that ruling comes from South Florida’s appellate district and the issue is not finally settled statewide. In Tampa Bay — the Second District — prosecutors may still file the charge, and the defense must raise Eubanks by motion. The Brancato Law Firm, P.A. litigates these constitutional challenges and preserves them for appeal.

Will a marijuana conviction cost me my concealed weapons license?

Yes — a finding of guilt for a chapter 893 drug crime requires revocation of a Florida concealed-carry license, and it bars a new license for three years under Fla. Stat. § 790.06. That collateral consequence is one more reason to fight a “minor” possession charge rather than plead it out quickly. We routinely defend possession cases with the license consequences as a central goal.

Does Florida report medical marijuana patients to the federal government?

Florida’s medical marijuana use registry is a state system, and Florida law treats patient records as confidential; the registry is not a public list handed to federal authorities. But dispensary purchases, statements to police, and social media can all establish “unlawful user” status in a federal case. If you hold a card and own firearms, The Brancato Law Firm, P.A. can walk you through how the two programs actually interact.

Marijuana-and-gun law is moving faster right now than at any point in decades — Hemani and Eubanks both landed within a single week of June 2026, and the next round of decisions will decide how far they reach in Tampa Bay. If you are facing a gun or marijuana charge, or you hold a medical card and want to keep your gun rights intact, call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159 today. Constitutional defenses are strongest when they are raised before the State’s filing decision, not after.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

Rocky Brancato was among the first attorneys in Florida to take risk protection order cases when the law took effect in 2018, and he was featured in local coverage of the new law that May. The Brancato Law Firm handles these cases today across Hillsborough, Pinellas, and Pasco Counties. If you have been served, the timeline is the part to understand first, because the schedule is short and the hearing arrives fast.

What Is a Risk Protection Order in Florida?

A risk protection order is a civil proceeding under section 790.401, Florida Statutes. Law enforcement asks a circuit court to find that a person poses a significant danger of causing personal injury to themselves or others by having access to firearms or ammunition. If the court agrees, it orders the firearms and ammunition surrendered and prohibits the person from possessing, purchasing, or receiving more while the order is in effect.

An RPO is not a criminal charge and does not produce a conviction. It also does not do the things people expect from a domestic injunction. It does not order you to stay away from anyone, remove you from your home, set child time-sharing, or order support.

The rules that govern a domestic violence injunction come from section 741.30, and they matter here for a reason we cover below. Section 790.401 borrows that statute’s evidentiary procedure for the RPO hearing.

Who Can File a Risk Protection Order in Florida?

Only a law enforcement officer or a law enforcement agency. Florida is narrower on this point than most red flag states, and it is the detail readers get wrong most often, because national coverage describes states where family members can petition directly.

A spouse, parent, sibling, adult child, dating partner, therapist, coworker, school employee, or neighbor cannot file a Florida RPO petition. They can report concerns to law enforcement, and that report can become the factual basis for a petition. The decision to file belongs to the agency, and the agency becomes the named petitioner. A 2023 proposal to extend standing to parents, guardians, spouses, and siblings died in committee.

The petition is filed in the circuit court either where the agency is located or where the respondent lives. There is no filing fee, service fee, or bond.

Is Florida’s Red Flag Law Still in Effect?

Yes. House Bill 6029 would have repealed section 790.401 effective July 1, 2026. It was filed on January 6, 2026, referred to the House Criminal Justice Subcommittee, and died there on March 13, 2026 without a committee amendment, floor amendment, or recorded vote. The statute was not repealed and continues to operate exactly as it did before.

If you saw news coverage of the repeal effort and assumed the law was on its way out, that assumption will not help you at a hearing. The process below is the process you are in.

The Two Stages of a Florida Risk Protection Order

Almost every RPO moves through two separate proceedings with two different standards of proof. Knowing which stage you are in tells you what the court is actually deciding.

Stage One: The Temporary Ex Parte Order

Law enforcement can ask for a temporary order at the same time it files the petition. The allegations supporting temporary relief have to be based on the officer’s personal knowledge and have to show that the feared injury may occur in the near future.

The court holds the temporary hearing on the day the petition is filed or the next business day, in person or by telephone. You are not notified, you are not present, and you do not testify or cross-examine anyone. The standard at this stage is reasonable cause, which is materially lower than what the petitioner has to prove later. If the judge finds reasonable cause, the temporary order is issued.

Two things are worth knowing about the temporary order. It is optional. The Florida Courts petition form lets law enforcement seek a final RPO without asking for temporary relief at all, and some agencies do exactly that. It also expires on its own at the full hearing. A temporary order is not a one-year order, and it is not a finding that the allegations are true.

Stage Two: The Full Hearing

This is where the case is decided. At the noticed hearing, the petitioner must prove by clear and convincing evidence that you pose a significant danger of causing personal injury to yourself or others by having custody or control of, or purchasing, possessing, or receiving, a firearm or ammunition. If that burden is met, the court issues a final order for whatever period it considers appropriate, up to 12 months. If the petition is denied, the court has to state its particular reasons.

The statute lists a nonexclusive set of things a court may consider, including recent acts or threats of violence, acts or threats within the prior 12 months, serious mental illness or recurring mental health issues, violations of prior protective orders, a domestic violence history, threats involving a weapon, reckless display or use of a firearm, stalking, a violent crime history, corroborated substance abuse, and recent firearm acquisition.

The full hearing is a real evidentiary proceeding. Evidence has to be submitted in writing with copies to the other side, or presented under oath with the parties present. The rules of evidence apply to the same extent they do in a domestic violence injunction case.

Florida Risk Protection Order Timeline

Every deadline below comes from section 790.401. Several are measured in hours.

One detail circulates widely in the wrong form. The order does not have to be entered into the FCIC and NCIC databases within 24 hours. The clerk has 24 hours to forward it, and the law enforcement agency enters it on receipt.

What a Risk Protection Order Actually Restricts

The scope is broader than most people expect. While the order is in effect, you may not:

• Possess a firearm or ammunition
  
• Purchase or receive a firearm or ammunition
  
• Have custody or control of a firearm or ammunition, which can include items you do not physically carry
  
• Hold a Florida concealed weapon or firearm license, which is surrendered and then suspended

The surrender obligation has no grace period. It covers ammunition as well as firearms, and it attaches the moment you are served.

The order does not authorize an unlimited search of your home. The serving officer takes what is surrendered or what is located under lawful authority. If the officer has probable cause to believe firearms or ammunition were not disclosed, the officer can seek a search warrant, and the court must issue one when probable cause exists. Firearms lawfully owned by a spouse or another qualifying third party can be returned to that owner or transferred to an eligible third party, subject to a background check and storage conditions that keep them out of your reach.

An RPO also does not automatically make you a federally prohibited person. The federal prohibition at 18 U.S.C. § 922(g)(8) applies only to a qualifying order entered after notice and an opportunity to participate, restraining conduct against an intimate partner or that partner’s child, and containing specific findings or language. A temporary ex parte Florida RPO ordinarily does not meet the notice element, and a final Florida RPO does not automatically qualify either, because Florida RPOs can involve self-harm risk, non-intimate targets, or generalized danger. The Florida prohibition is fully enforceable on its own regardless.

Violating a Risk Protection Order Is a Separate Crime

This is where a civil order turns into criminal exposure. Under section 790.401(11)(b), a person who has custody or control of, purchases, possesses, or receives a firearm or ammunition knowing they are prohibited by an RPO commits a third-degree felony.

The offense turns on knowledge of the prohibition. Once you have been served, conduct that was lawful the day before becomes a felony. That holds even if you have never been arrested for anything in your life, and even if the underlying allegations are later found unproven at the hearing. Filing a materially false sworn statement to obtain an RPO is also a third-degree felony under subsection (11)(a).

If you own firearms stored somewhere else, held by a relative, or kept at a business, raise them with an attorney immediately rather than assuming the order only reaches what was in the house.

There Is No Court-Appointed Attorney in a Florida RPO Case

This part catches people off guard. The statute says no party is required to be represented by an attorney and bars an award of attorney fees. No public defender is appointed. No private attorney is appointed at public expense. If you cannot afford counsel, the hearing goes forward anyway.

The Legislature has looked at the gap and left it in place. House Bill 1455 would have given RPO respondents a right to retain counsel and a right to appointed counsel if indigent. It cleared the House Criminal Justice Subcommittee in February 2026 and died in the Justice Budget Subcommittee on March 13, 2026. A similar 2024 proposal also failed. A 2024 House staff analysis stated the baseline directly: section 790.401 does not provide a right to counsel, and no other statute authorizes appointment for an indigent RPO respondent.

There is a second gap alongside it. Section 790.401 does not require the court to record the hearing. Florida Courts’ own approved form for extension hearings says so and notes that a party who wants a transcript may arrange for a court reporter at that party’s expense. An appellate challenge generally needs an adequate record, and no one will create one for you.

How the Baker Act Connects to Risk Protection Orders

Many RPO cases begin with a mental health crisis rather than a criminal incident, and families often have no idea the two systems are wired together.

Under section 394.463, an officer taking a person for an involuntary examination may seize firearms or ammunition in that person’s possession when the person poses a potential danger and has made a credible threat of violence against another person. If the officer removes the person from a residence, the officer may seek voluntary surrender of other firearms kept there. When additional firearms are not surrendered or are believed to be somewhere else, the statute expressly authorizes law enforcement to petition for an RPO.

The seizure that happens under the Baker Act alone is short-lived. Property seized or voluntarily surrendered has to be made available for return no later than 24 hours after the person documents release from examination or treatment, and the return process cannot take longer than seven days. That deadline does not apply if an RPO or another legal prohibition requires continued retention. In practice, the RPO is often what keeps the firearms from coming back on discharge.

Clinical records are a separate question. Baker Act records are generally confidential. Section 394.4615 creates a narrow mandatory disclosure route. When a patient communicates a specific threat of serious bodily injury or death to an identified or readily available person, and the provider believes the patient has the apparent intent and ability to carry it out imminently, the facility must give law enforcement enough information to act, and initiating an RPO is one of the listed responses. Ordinary therapy notes do not become court exhibits under that provision.

Two points cut in opposite directions here, and both are true. Being Baker Acted does not by itself establish the elements of an RPO. And a clean discharge does not end the petition. In Davis v. Gilchrist County Sheriff’s Office, the First District upheld a final RPO even though a mental health evaluator had released the respondent and did not consider him a continuing risk of violence, reasoning that the statute does not make an evaluator’s recommendation dispositive. The judge weighs the whole record.

None of that is an argument against the statute. When someone is genuinely in crisis and has made a credible threat, the law is doing what the Legislature built it to do. Our work sits with the other set of cases: the petition built on a secondhand account, a comment taken out of context, an argument that got reported, or a mental health event that has already been treated and resolved. Those cases still have to be proven with evidence at a hearing. If you or someone in your family is in crisis right now, the 988 Suicide and Crisis Lifeline is available by call or text, and asking for help is not something a court holds against you. Our work on Baker Act cases and criminal mental health defense sits at exactly this intersection, including competency evaluations and Mental Health Court in Hillsborough County.

What You Can Do If a Risk Protection Order Is Filed Against You

You cannot participate in the temporary hearing. The full hearing is your first real opportunity, which is why the two-week window matters so much.

At the hearing, a respondent can:

• Testify and present documentary evidence
  
• Call relevant witnesses, including treating providers, family members, coworkers, and character witnesses
  
• Cross-examine the officer and any witnesses the petitioner calls
  
• Object to inadmissible evidence under the rules that apply in domestic violence injunction cases
  
• Challenge hearsay, which is not automatically admissible just because the case is civil and expedited
  
• Arrange for a court reporter so there is a transcript if an appeal becomes necessary
  

The hearsay point does real work in these cases. Petitions are frequently built on what a spouse says a therapist said, or what a coworker says a friend heard. Written allegations in a petition do not prove themselves at the final hearing. Those statements may still come in, because a statement can be nonhearsay, can fall within an exception, or can be replaced by live testimony from the person who actually said it. The petitioner has to do that work rather than rely on the paperwork.

After a final order is entered, there is one more route:

• Motion to vacate. You may file one written request for a hearing to vacate after the final order, and one more after each extension. The hearing is set no sooner than 14 days and no later than 30 days after the request is served on the petitioner. At that hearing the burden flips: you must prove by clear and convincing evidence that you no longer pose a significant danger.

• Extension hearings. At least 30 days before the order expires, the clerk notifies the petitioner. The petitioner can move to extend within that window. Each extension can run up to 12 months, continued danger must again be proven by clear and convincing evidence, and the statute sets no limit on how many extensions can follow. Twelve months is the maximum length of a single order, and the restriction can be renewed.
  

Getting Firearms Back After a Risk Protection Order Ends

Expiration does not trigger an automatic return. Once the order ends without extension, or is vacated, you have to request the property back from the agency storing it.

Before returning anything, law enforcement must run a background check confirming you are not otherwise barred under state or federal law and verify the RPO is no longer in effect. Family or household members receive notice before firearms or ammunition are returned. A surrendered concealed weapon license is a separate track, reinstated by the Department of Agriculture and Consumer Services only after it confirms eligibility. Firearms and ammunition left unclaimed for a year after an order vacating the RPO may be disposed of under the agency’s policy, so the request should not wait.

If you want a fuller picture of how firearm possession rules work in Florida outside the RPO context, our overview of Florida gun crime laws and our breakdown of the 2025 open carry ruling cover the surrounding law.

How Often Are Risk Protection Orders Used in Tampa Bay?

The best available government tally comes from the Office of the State Courts Administrator, which compiled statewide RPO activity from March 2018 through June 2022.

Those numbers carry a caveat the report states itself. Each clerk supplied the data, the figures were not audited, and counties used inconsistent reporting conventions, which is why some county totals do not reconcile cleanly. A 2026 peer-reviewed study in the American Journal of Preventive Medicine independently collected more than 8,600 petitions filed across 65 counties between March 2018 and December 2021 and found wide variation in how heavily different counties use the law.

Local practice varies too, even though the deadlines and burdens do not. In Hillsborough County, the Thirteenth Judicial Circuit’s current administrative order lets any sworn law enforcement officer in the county serve RPO papers rather than limiting service to the sheriff, and RPO matters are administered within the probate, guardianship, mental health, and trust division. Pinellas and Pasco sit in the Sixth Judicial Circuit, where filing, assignment, and hearing logistics can differ. None of that changes the 14-day hearing window, the clear and convincing standard, or the immediate surrender obligation.

Other Consequences of a Florida Risk Protection Order

• Your concealed license is suspended. This is the one automatic licensing consequence in the statute. Reinstatement happens only after the order ends and the state confirms you are otherwise eligible.
  
• The case is a public record. Although section 790.401 designates RPOs as mental health cases for reporting purposes, the Florida Supreme Court’s electronic access order treats them as publicly viewable circuit civil matters rather than confidential files. Background screeners can find them. Protected clinical records and confidential identifiers remain separately protected.
  
• Employment effects depend on your job. Section 790.401 does not suspend professional or occupational licenses across the board. Real consequences still show up where a job requires personal firearm possession, a concealed license, a security clearance, or disclosure of civil injunctions. Those turn on your regulator, employer, and any applicable collective bargaining agreement rather than on the RPO statute itself.
  
• A related case can be running at the same time. An RPO frequently arrives alongside a domestic violence defense matter or a pending criminal investigation. Decisions in one proceeding can affect the other, including anything you say under oath.
  

Talk to a Tampa RPO Attorney Before Your Hearing

The timeline is the whole problem. From service to the hearing that decides the outcome, you may have less than two weeks to gather records, line up witnesses, prepare cross-examination, and decide whether to testify in a civil proceeding while a criminal investigation may still be open. No one is appointed to do that for you, and no transcript exists unless someone arranges one.

The Brancato Law Firm handles risk protection order cases across Hillsborough, Pinellas, and Pasco Counties, and Rocky Brancato has worked on them since the statute took effect in 2018. You can read more about our approach to gun crimes defense and our work as Hillsborough County criminal defense attorneys.

If you have been served, or if firearms were taken during a Baker Act call and you have been told a petition is coming, call or reach out through our contact page for a confidential consultation.

In a homicide case, prosecutors love to show the jury photographs of the defendant holding a gun. After all, such images create a powerful visual association: this person had a gun, and someone died from a gunshot. However, for such evidence to be admissible, the prosecution must establish a nexus—a connection between the gun in the photograph and the gun used in the crime.

When the guns merely look similar, that connection does not exist. Similar is not the same. In this homicide case, a firearms expert with decades of experience identified the precise model of the gun in my client’s social media photo—and proved it was not the murder weapon. As a result, we kept the prejudicial photograph out of evidence entirely.  I am Tampa Criminal Defense Attorney Rocky Brancato. This post is part of our forensic series put out by the Brancato Law Firm, P.A., your Tampa criminal forensic evidence law firm.

The Case: A Young Defendant and a Damaging Photo

My client, a young man, faced homicide charges. The state had recovered the murder weapon and placed it into evidence. They also had something else they wanted the jury to see: photographs from my client’s social media showing him holding a gun.

To a casual observer, the gun in the social media photos looked similar to the murder weapon. Both appeared to be the same general type of firearm. The prosecution intended to use these images to suggest my client had possessed a gun like the one used in the killing—creating a damaging association in the jurors’ minds.

However, when I examined the photographs closely, I noticed something important: certain features of the gun in the photo appeared different from the murder weapon. The guns were similar, but were they actually the same model? If not, the prosecution had no business showing these photos to the jury.

The Expert: A Lifetime of Firearms Knowledge

To challenge the prosecution’s evidence, I needed someone who could look at a photograph and identify the precise make and model of the firearm depicted. Fortunately, I found an expert whose qualifications were extraordinary.

This expert had grown up around firearms, handling guns since childhood. Subsequently, he built a career in law enforcement, working first for a local police department and then retiring from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Throughout his career, he developed an encyclopedic knowledge of weapons.

Most impressively, he had toured nearly every major firearms manufacturing factory in the world. As a result, he possessed firsthand knowledge of how different manufacturers design and produce their weapons—knowledge that allowed him to identify subtle differences between similar-looking firearms that most people would never notice.

The Analysis: Identifying the Precise Model

I provided my expert with the social media photographs and access to examine the murder weapon in evidence. His task was straightforward: determine whether the gun in the photos matched the gun used in the homicide.

The expert examined the photographs carefully, focusing on specific features of the firearm: the shape of the slide, the configuration of the grip, the placement of controls, and other distinguishing characteristics. Based on these features, he identified the precise make and model of the gun my client held in the social media photos.

His conclusion was definitive: the gun in the photographs was not the same model as the murder weapon.

Although both firearms appeared similar at first glance, they were manufactured by different companies or represented different product lines. The distinguishing features that the expert identified made clear that my client’s social media photos depicted an entirely different weapon than the one used in the killing.

What Firearms Experts Look For When Identifying Weapons

The Legal Argument: No Nexus, No Admission

Armed with the expert’s findings, I filed a motion to exclude the social media photographs. The argument was straightforward: without a nexus between the gun in the photos and the murder weapon, the photographs lacked relevance to the charged offense.

Moreover, the prejudicial effect of the photographs far outweighed any probative value. Showing the jury images of a young defendant holding a gun—when that gun had nothing to do with the crime—would serve only to inflame the jury and create an unfair association in their minds.

The expert’s identification of the precise firearm model made this argument airtight. Because he could demonstrate that the social media gun was definitively not the murder weapon, the prosecution could not establish the required nexus.

Why Excluding This Evidence Mattered

The exclusion of the social media photographs removed a powerful piece of visual evidence from the prosecution’s case. Without those images, the jury could not form the mental association the state wanted: seeing the defendant with a gun and connecting him to the shooting.

Consequently, the jury had to evaluate the remaining evidence on its own merits. While they convicted my client of a lesser offense, they acquitted him of the homicide charge—a significant difference in terms of potential punishment and consequences.

This outcome demonstrates the importance of challenging every piece of evidence the prosecution intends to use. Evidence that appears damaging at first glance may not withstand expert scrutiny.

What This Case Teaches About Firearms Evidence

• First, similar does not mean same. Two firearms may look alike to untrained observers but represent completely different makes and models. An expert can identify the differences.
• Second, the prosecution must establish a nexus. For evidence to be admissible, it must connect to the charged offense. A photograph of the defendant with a different gun lacks that connection.
• Third, expert qualifications matter enormously. An expert who has toured firearms factories worldwide and spent a career handling weapons brings credibility that generalists cannot match.
• Fourth, challenge prejudicial evidence aggressively. Photographs of defendants with weapons create powerful negative associations. If the evidence lacks relevance, fight to keep it out.
• Finally, social media evidence requires scrutiny. Prosecutors increasingly use social media photographs against defendants. However, such evidence must still meet admissibility standards.

Frequently Asked Questions

Can prosecutors use social media photos against me?

Prosecutors can attempt to use social media photographs, but such evidence must meet admissibility requirements. Specifically, the photos must be relevant to the charged offense, and the prosecution must authenticate them. Additionally, if a photo’s prejudicial effect outweighs its probative value, the defense can move to exclude it.

What does nexus mean in evidence law?

Nexus refers to the connection between a piece of evidence and the facts at issue in a case. For evidence to be relevant and admissible, it must have a logical connection to something the prosecution needs to prove. Without that connection, the evidence lacks relevance.

What does a firearms expert do?

A firearms expert identifies weapons, analyzes ballistic evidence, and provides expert testimony about firearms-related issues. They can determine whether a specific weapon fired particular ammunition, identify the make and model of firearms from photographs, and explain technical aspects of weapons to judges and juries.

How can an expert identify a gun from a photograph?

Experienced firearms experts recognize distinguishing features that identify specific makes and models: slide shapes, grip configurations, control placements, trigger guard designs, and sight configurations. By analyzing these visible features, an expert can often determine the precise firearm depicted—even from a photograph.

What makes firearms evidence prejudicial?

Photographs of defendants holding weapons create powerful negative impressions on juries. Even when the pictured weapon has no connection to the charged crime, such images can make defendants appear dangerous or violent. Consequently, courts may exclude such evidence when its prejudicial effect substantially outweighs any probative value.

Should I delete gun photos from my social media?

If you face criminal charges, do not delete anything from social media without consulting your attorney first. Deleting evidence after charges can constitute obstruction of justice or spoliation of evidence. Instead, discuss your social media presence with your attorney, who can advise you on the best course of action.

Facing Gun-Related Charges?

Prosecutors use every piece of evidence they can find—including social media photographs that may have nothing to do with the charged offense. However, such evidence must meet legal standards for relevance and admissibility.

For over 25 years, I have defended clients against serious charges throughout Tampa Bay. As a result, I know how to challenge firearms evidence, retain qualified experts who can identify weapons and break the prosecution’s nexus arguments, and fight to exclude prejudicial photographs from trial.

Call (813) 727-7159 for a Confidential Consultation

The Brancato Law Firm, P.A.

620 E Twiggs Street, Suite 205, Tampa, FL 33602

Serving Hillsborough, Pinellas, and Pasco Counties

Part of the Forensic Evidence Series

Related Case Studies: DNA Evidence Defense | Aggravated Child Abuse Defense | Forensic Pathologist | Fingerprint Evidence is Not as Reliable as You Think | Cell Phone Location Data Can prove You Were Not There | When Brain Damage Explains Criminal Conduct | Your BAC at the Station is Not Your BAC Behind the Wheel | When Police Destroy Evidence They Do Not Get the Benefit of the Doubt | When a Confession is Not a Confession | When the Car–Not the Driver–Caused the Crash | The Injuries Were Real–But They Were Not From the Alleged Rape

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Social Media Evidence in Tampa Criminal Cases

Why Expert Witnesses are Not Optional in Major Crimes Case

The Florida Fourth District Court of Appeal recently granted Stand Your Ground immunity to a Palm Beach defendant charged with second-degree murder. In Spencer v. State (4D2025-0023), the court ruled that prosecutors failed to disprove self-defense by clear and convincing evidence.

This case demonstrates why Stand Your Ground immunity matters for anyone facing violent crime charges in Florida. Moreover, it illustrates how the burden of proof works in self-defense cases—and why experienced legal representation is essential. I am Tampa Criminal Defense Attorney Rocky Brancato. For over 25 years, I have provide top level criminal defense services to the citizens of Tampa Bay. My firm, the Brancato Law Firm, P.A., can help change the narrative if you used self defense and stood your ground!

Case Background: Palm Beach Stand Your Ground Claim

Ivin Spencer was charged with second-degree murder after a deadly confrontation in a Palm Beach parking lot. Although Spencer admitted to the shooting, he argued that Florida’s Stand Your Ground law applied to his case.

The Victim’s History

The evidence showed that the victim, Brandon Bell, had a history of making threats and was known to carry a gun. Consequently, Spencer had reason to believe that any confrontation with Bell could turn deadly.

The Confrontation

On the day of the shooting, Bell aggressively advanced toward Spencer while yelling threats. Spencer, who had health limitations that put him at a physical disadvantage, feared for his safety. As a result, he fired a single shot.

After the Shooting

Immediately after the incident, Spencer called 911 and cooperated fully with police. This behavior is consistent with someone acting in self-defense rather than with criminal intent.

Why the Court Granted Stand Your Ground Immunity

The appellate court ruled that prosecutors failed to meet their burden of proof. Specifically, the State could not prove by clear and convincing evidence that Spencer’s use of force was unjustified.

Together, these facts supported the conclusion that a reasonable person in Spencer’s position would believe deadly force was necessary to prevent imminent death or great bodily harm.

Lessons from This Florida Self-Defense Ruling

Stand Your Ground Can Dismiss Charges Before Trial

Unlike an acquittal at trial, Stand Your Ground immunity dismisses charges entirely. As a result, the defendant avoids the risk, expense, and uncertainty of a jury trial. This makes pursuing immunity a critical strategy in appropriate cases.

The State Carries a Heavy Burden

Once a defendant raises Stand Your Ground, prosecutors must disprove self-defense by clear and convincing evidence. This is a higher standard than preponderance of the evidence, though lower than beyond a reasonable doubt. Nevertheless, it places significant pressure on the State.

Context Shapes Legal Outcomes

Prior threats, the victim’s reputation, physical disparities, and circumstances at the scene all matter. Therefore, thorough investigation and presentation of context is essential to a successful Stand Your Ground claim.

Frequently Asked Questions

What is Stand Your Ground immunity in Florida?

Stand Your Ground immunity allows a defendant to have criminal charges dismissed before trial if they can show they used force in lawful self-defense. Under Florida law, a person has no duty to retreat if they are in a place where they have a right to be.

Who has the burden of proof in a Stand Your Ground hearing?

Once the defendant raises Stand Your Ground, the burden shifts to the prosecution. The State must prove by clear and convincing evidence that the defendant’s use of force was not justified. If prosecutors cannot meet this burden, the court must grant immunity.

Can Stand Your Ground apply to murder charges?

Yes, absolutely. Stand Your Ground immunity can apply to any charge where self-defense is raised, including first-degree murder, second-degree murder, and manslaughter. The Spencer case demonstrates that even second-degree murder charges can be dismissed through Stand Your Ground.

What evidence helps a Stand Your Ground claim?

Helpful evidence includes prior threats from the victim, the victim’s violent reputation, physical disparity between the parties, witness testimony about the confrontation, and the defendant’s post-incident conduct such as calling 911 and cooperating with police.

Is Stand Your Ground the same as self-defense?

Stand Your Ground is a specific type of self-defense claim under Florida law. The key difference is that Stand Your Ground eliminates the duty to retreat. In other words, you do not have to try to escape before using force if you are lawfully present at the location.

How do I pursue Stand Your Ground immunity?

Your attorney files a motion for Stand Your Ground immunity, and the court holds a hearing. At that hearing, the prosecution must prove that your use of force was not justified. If they fail, the charges are dismissed. This process requires experienced legal representation.

More on Self-Defense

• Tampa Attorney for Self-Defense
• Tampa PTSD and Self-Defense
• Tampa Criminal Mental Health Attorney
• Tampa Gun Crime Attorney
• Tampa Violent Crime Attorney
• Tampa Murder Attorney

Protect Your Rights with a Florida Criminal Defense Lawyer

If you face violent crime charges where self-defense may apply, you need an attorney who understands how to argue for Stand Your Ground immunity in Florida. At The Brancato Law Firm, P.A., attorney Rocky Brancato has more than 25 years of experience defending homicide, sex crimes, and major felonies throughout Tampa Bay.

Moreover, Attorney Brancato proactively pursues Stand Your Ground immunity hearings for eligible cases. Do not wait until trial to raise self-defense—the right strategy can dismiss charges entirely.

Call (813) 727-7159 for a Confidential Consultation

The Brancato Law Firm, P.A.

620 E Twiggs Street, Suite 205, Tampa, FL 33602

Serving Hillsborough, Pinellas, and Pasco Counties

Florida’s gun laws have changed. On September 10, 2025, the First District Court of Appeal in McDaniels v. State, 1D2023-0533 (Fla. 1st DCA 2025), struck down Florida’s decades-old ban on openly carrying firearms. The Attorney General has declined to appeal, which means the ruling stands: open carry is now legal in Florida.

However, this does not mean you can carry a firearm everywhere. Significant restrictions remain under Florida Statute 790.06(12) and federal law. Understanding where you can and cannot carry is essential to avoiding arrest.

At The Brancato Law Firm, our goal is not to take sides on whether this change is good or bad. Our focus is on making sure you understand the law as it now stands—and to remind you that if you are arrested under Florida’s gun laws, your rights deserve a strong defense. We are your Tampa Gun Crimes Law Firm.

What the Court Decided in McDaniels v. State

The First District Court of Appeal struck down Florida’s open carry ban, finding it violated the Second Amendment. The court’s reasoning:

• The Constitution protects both open and concealed carry
• History shows open carry was the traditional and accepted way of bearing arms
• Florida’s blanket ban went too far by prohibiting it altogether

This decision was guided by the U.S. Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen, which established that gun regulations must be consistent with the nation’s historical tradition of firearm regulation.

What Was the Old Florida Open Carry Law?

Since 1987, Florida law made it a crime to openly carry a firearm in public. Violations could result in up to 60 days in jail and fines. The only exceptions were narrow—such as while hunting, fishing, or camping, or while traveling to and from those activities.

That law is now unconstitutional. Floridians may openly carry firearms in public, subject to the location restrictions that still apply.

Where You Still Cannot Carry a Firearm

Open carry is now legal, but location restrictions remain in full effect. Under Florida Statute 790.06(12) and federal law, carrying a firearm in any of the following locations can still lead to arrest:

Private Property Rules

Private business owners can set their own rules regarding firearms. If a business posts “No Firearms” signs or asks you to leave, you must comply. Refusing to leave after being asked can result in trespass charges—even if you are otherwise carrying legally.

Who Still Cannot Carry a Firearm

The McDaniels ruling changed how you can carry, not who can carry. The following individuals remain prohibited from possessing firearms under Florida and federal law:

• Convicted felons (F.S. 790.23)
• Individuals under 21 years of age
• Chronic or unlawful users of controlled substances
• Individuals subject to domestic violence injunctions (F.S. 790.233)
• Individuals adjudicated mentally defective or Baker Act committed
• Individuals subject to active Risk Protection Orders (F.S. 790.401)

Frequently Asked Questions

Is open carry now legal in Florida?

Yes. Following the McDaniels v. State ruling and the Attorney General’s decision not to appeal, open carry is now legal in Florida. However, location restrictions under F.S. 790.06(12) still apply.

Can I carry in a bar or nightclub?

No. Firearms remain prohibited in any portion of a business licensed to serve alcohol for on-site consumption.

Can I carry at schools or school events?

No. You cannot carry at elementary, middle, or high schools, their administration buildings, or school sporting events. Colleges and universities are also off-limits.

Can I carry at a courthouse or government meeting?

No. Courthouses, courtrooms, polling places, and government board meetings remain prohibited locations.

What about airports?

You cannot carry inside passenger terminals beyond TSA security checkpoints. Firearms must be properly checked if you are flying.

What if I accidentally walk into a prohibited location?

Ignorance of the law is not a defense. You could still face arrest. Always know where you can and cannot carry before doing so.

What if a private business does not allow firearms?

Private business owners can prohibit firearms on their property. If asked to leave, you must comply or risk trespass charges.

Arrested for a Gun Offense in Tampa?

If you or someone you care about has been arrested under Florida’s gun laws—whether for open carry, concealed carry, or another firearm-related offense—you have rights worth fighting for.

At The Brancato Law Firm, attorney Rocky Brancato brings over 25 years of trial experience to every case. We do not take a position on whether gun laws are “right” or “wrong.” Our job is to stand with you in court and fight back if your constitutional rights have been violated.

Call (813) 727-7159 for a Confidential Consultation

The Brancato Law Firm, P.A.

620 E Twiggs Street, Suite 205, Tampa, FL 33602

Serving Hillsborough, Pinellas, and Pasco Counties

Florida’s permitless carry law, effective July 1, 2023, has created confusion for many residents regarding where they can and cannot legally bring a firearm. For Tampa Bay Buccaneers fans heading to Raymond James Stadium, this confusion can unfortunately lead to significant legal trouble. The crucial reality is this: even if you can legally carry a gun elsewhere in Florida, bringing it to or even near the stadium for a Bucs game can still result in your arrest.

Here’s what every Bucs fan needs to know before game day in Tampa.

Florida’s Permitless Carry Law Isn’t a “Carry Anywhere” Pass

While Florida now allows most adults to carry a concealed firearm without a specific permit, this law does not grant permission to carry a firearm everywhere. Long-standing restrictions remain firmly in place, and one is exceptionally clear regarding sporting events:

You cannot lawfully carry a firearm into a professional athletic event in Florida. This prohibition explicitly includes:

• NFL stadiums like Raymond James Stadium, home of the Tampa Bay Buccaneers.
• The parking lots and designated tailgating areas associated with the venue.
• All secured and ticketed sections within the stadium grounds.

Violating this rule can lead to serious felony charges, even if you had no malicious intent and were simply unaware of the specific restrictions for Raymond James Stadium.

What About the Raymond James Stadium Parking Lot or Tailgating Area?

Many Tampa Bay Buccaneers fans mistakenly believe that as long as they don’t bring a weapon inside the actual stadium building, they are compliant with the law. However, Raymond James Stadium is a designated gun-free zone. This important designation often extends to surrounding areas owned or operated in connection with the event, including parking and tailgating zones.

In practical terms for a Bucs game day, this means:

• Even keeping a firearm securely locked in your car on Raymond James Stadium property during a game can be legally risky.
• Security personnel and law enforcement officers routinely patrol tailgating areas around the Tampa stadium.
• The situation becomes even more complex if alcohol is involved.

Furthermore, Florida law (F.S. § 790.151) prohibits being in possession of a firearm while under the influence of alcohol or controlled substances, regardless of whether you ever physically touch the weapon during that time.

The Dangerous Mix: Alcohol, Firearms, and the Tampa Bay Buccaneers

Tailgating is a cherished part of the Tampa Bay Buccaneers game-day experience. However, if you are carrying a firearm—even if you believe you are doing so legally—and you are consuming alcohol, you may be violating several Florida Statutes, including:

• F.S. § 790.151: Possession of a firearm while under the influence.
• F.S. § 790.06(12): Restrictions on carrying in specific locations (like professional sporting events).
• F.S. § 856.011: Disorderly intoxication, which can be charged alongside any firearm violations.

These laws are strictly enforced around Raymond James Stadium.

“I Forgot the Gun Was in My Car!” – What Happens at a Tampa Bucs Game?

This scenario occurs more often than people realize. However, claiming unintentional possession is not always a valid defense in Florida. Once law enforcement discovers a firearm in a prohibited area like Raymond James Stadium property, the situation can escalate rapidly. This is especially true if you are impaired, become argumentative, or are simply unaware of the strict firearm restrictions.

If you find yourself in this situation at a Bucs game, it’s critical to:

• Stay calm and composed.
• Say nothing to law enforcement beyond identifying yourself.
• Immediately and clearly state that you wish to speak with an attorney.

Beyond Firearms: Other Common Arrests at Tampa Bay Buccaneers Games

Firearms aren’t the only source of legal trouble at Bucs games. Every season, arrests occur at Raymond James Stadium for various offenses, including:

• Disorderly conduct
• Resisting an officer without violence
• Battery or assault (often in the stands or parking lots)
• Trespassing (especially after being warned or ejected)
• Open container violations and underage drinking

While these may seem like minor offenses, they can carry serious consequences in Florida. These can include jail time, probation, fines, and even restrictions that prevent you from attending future Tampa Bay Buccaneers games or other events at Raymond James Stadium.

If Your Tampa Bay Buccaneers Game Day Didn’t Go As Planned – The Brancato Law Firm, P.A. Can Help

At The Brancato Law Firm, P.A., we understand how a simple mistake or misunderstanding can quickly turn into a criminal charge—especially in the high-energy, heavily policed environment of a Tampa Bay Buccaneers game at Raymond James Stadium. Whether you’re facing a firearms violation, a charge of resisting arrest, or an incident related to tailgating or public intoxication in Tampa, our primary goal is to protect your record, your rights, and your future.

Attorney Rocky Brancato brings over 25 years of courtroom experience to every case. His expertise includes defending clients against charges involving concealed weapons, DUI, and violent offenses throughout the Tampa Bay area. His investigative insight and skilled legal negotiation often make the critical difference between a conviction and a more favorable outcome, such as a dismissal or reduced charges.

Located in Ybor City, Tampa. Proudly serving Hillsborough, Pinellas, and Polk Counties.

Call (813) 727-7159 for a confidential consultation to discuss your case.