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The Florida Statutes

The 2018 Florida Statutes

Title XLVI
CRIMES
Chapter 790
WEAPONS AND FIREARMS
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F.S. 790.401
1790.401 Risk protection orders.
(1) DEFINITIONS.As used in this section, the term:
(a) “Petitioner” means a law enforcement officer or a law enforcement agency that petitions a court for a risk protection order under this section.
(b) “Respondent” means the individual who is identified as the respondent in a petition filed under this section.
(c) “Risk protection order” means a temporary ex parte order or a final order granted under this section.
(2) PETITION FOR A RISK PROTECTION ORDER.There is created an action known as a petition for a risk protection order.
(a) A petition for a risk protection order may be filed by a law enforcement officer or law enforcement agency.
(b) An action under this section must be filed in the county where the petitioner’s law enforcement office is located or the county where the respondent resides.
(c) Such petition for a risk protection order does not require either party to be represented by an attorney.
(d) Notwithstanding any other law, attorney fees may not be awarded in any proceeding under this section.
(e) A petition must:
1. Allege that the respondent poses a significant danger of causing personal injury to himself or herself or others by having a firearm or any ammunition in his or her custody or control or by purchasing, possessing, or receiving a firearm or any ammunition, and must be accompanied by an affidavit made under oath stating the specific statements, actions, or facts that give rise to a reasonable fear of significant dangerous acts by the respondent;
2. Identify the quantities, types, and locations of all firearms and ammunition the petitioner believes to be in the respondent’s current ownership, possession, custody, or control; and
3. Identify whether there is a known existing protection order governing the respondent under s. 741.30, s. 784.046, or s. 784.0485 or under any other applicable statute.
(f) The petitioner must make a good faith effort to provide notice to a family or household member of the respondent and to any known third party who may be at risk of violence. The notice must state that the petitioner intends to petition the court for a risk protection order or has already done so and must include referrals to appropriate resources, including mental health, domestic violence, and counseling resources. The petitioner must attest in the petition to having provided such notice or must attest to the steps that will be taken to provide such notice.
(g) The petitioner must list the address of record on the petition as being where the appropriate law enforcement agency is located.
(h) A court or a public agency may not charge fees for filing or for service of process to a petitioner seeking relief under this section and must provide the necessary number of certified copies, forms, and instructional brochures free of charge.
(i) A person is not required to post a bond to obtain relief in any proceeding under this section.
(j) The circuit courts of this state have jurisdiction over proceedings under this section.
(3) RISK PROTECTION ORDER HEARINGS AND ISSUANCE.
(a) Upon receipt of a petition, the court must order a hearing to be held no later than 14 days after the date of the order and must issue a notice of hearing to the respondent for the same.
1. The clerk of the court shall cause a copy of the notice of hearing and petition to be forwarded on or before the next business day to the appropriate law enforcement agency for service upon the respondent as provided in subsection (5).
2. The court may, as provided in subsection (4), issue a temporary ex parte risk protection order pending the hearing ordered under this subsection. Such temporary ex parte order must be served concurrently with the notice of hearing and petition as provided in subsection (5).
3. The court may conduct a hearing by telephone pursuant to a local court rule to reasonably accommodate a disability or exceptional circumstances. The court must receive assurances of the petitioner’s identity before conducting a telephonic hearing.
(b) Upon notice and a hearing on the matter, if the court finds by clear and convincing evidence that the respondent poses a significant danger of causing personal injury to himself or herself or others by having in his or her custody or control, or by purchasing, possessing, or receiving, a firearm or any ammunition, the court must issue a risk protection order for a period that it deems appropriate, up to and including but not exceeding 12 months.
(c) In determining whether grounds for a risk protection order exist, the court may consider any relevant evidence, including, but not limited to, any of the following:
1. A recent act or threat of violence by the respondent against himself or herself or others, whether or not such violence or threat of violence involves a firearm.
2. An act or threat of violence by the respondent within the past 12 months, including, but not limited to, acts or threats of violence by the respondent against himself or herself or others.
3. Evidence of the respondent being seriously mentally ill or having recurring mental health issues.
4. A violation by the respondent of a risk protection order or a no contact order issued under s. 741.30, s. 784.046, or s. 784.0485.
5. A previous or existing risk protection order issued against the respondent.
6. A violation of a previous or existing risk protection order issued against the respondent.
7. Whether the respondent, in this state or any other state, has been convicted of, had adjudication withheld on, or pled nolo contendere to a crime that constitutes domestic violence as defined in s. 741.28.
8. Whether the respondent has used, or has threatened to use, against himself or herself or others any weapons.
9. The unlawful or reckless use, display, or brandishing of a firearm by the respondent.
10. The recurring use of, or threat to use, physical force by the respondent against another person or the respondent stalking another person.
11. Whether the respondent, in this state or any other state, has been arrested for, convicted of, had adjudication withheld on, or pled nolo contendere to a crime involving violence or a threat of violence.
12. Corroborated evidence of the abuse of controlled substances or alcohol by the respondent.
13. Evidence of recent acquisition of firearms or ammunition by the respondent.
14. Any relevant information from family and household members concerning the respondent.
15. Witness testimony, taken while the witness is under oath, relating to the matter before the court.
(d) A person, including an officer of the court, who offers evidence or recommendations relating to the cause of action either must present the evidence or recommendations in writing to the court with copies to each party and his or her attorney, if one is retained, or must present the evidence under oath at a hearing at which all parties are present.
(e) In a hearing under this section, the rules of evidence apply to the same extent as in a domestic violence injunction proceeding under s. 741.30.
(f) During the hearing, the court must consider whether a mental health evaluation or chemical dependency evaluation is appropriate and, if such determination is made, may order such evaluations, if appropriate.
(g) A risk protection order must include all of the following:
1. A statement of the grounds supporting the issuance of the order;
2. The date the order was issued;
3. The date the order ends;
4. Whether a mental health evaluation or chemical dependency evaluation of the respondent is required;
5. The address of the court in which any responsive pleading should be filed;
6. A description of the requirements for the surrender of all firearms and ammunition that the respondent owns, under subsection (7); and
7. The following statement:

“To the subject of this protection order: This order will last until the date noted above. If you have not done so already, you must surrender immediately to the (insert name of local law enforcement agency) all firearms and ammunition that you own in your custody, control, or possession and any license to carry a concealed weapon or firearm issued to you under s. 790.06, Florida Statutes. You may not have in your custody or control, or purchase, possess, receive, or attempt to purchase or receive, a firearm or ammunition while this order is in effect. You have the right to request one hearing to vacate this order, starting after the date of the issuance of this order, and to request another hearing after every extension of the order, if any. You may seek the advice of an attorney as to any matter connected with this order.”

(h) If the court issues a risk protection order, the court must inform the respondent that he or she is entitled to request a hearing to vacate the order in the manner provided by subsection (6). The court shall provide the respondent with a form to request a hearing to vacate.
(i) If the court denies the petitioner’s request for a risk protection order, the court must state the particular reasons for the denial.
(4) TEMPORARY EX PARTE RISK PROTECTION ORDERS.
(a) A petitioner may request that a temporary ex parte risk protection order be issued before a hearing for a risk protection order, without notice to the respondent, by including in the petition detailed allegations based on personal knowledge that the respondent poses a significant danger of causing personal injury to himself or herself or others in the near future by having in his or her custody or control, or by purchasing, possessing, or receiving, a firearm or ammunition.
(b) In considering whether to issue a temporary ex parte risk protection order under this section, the court shall consider all relevant evidence, including the evidence described in paragraph (3)(c).
(c) If a court finds there is reasonable cause to believe that the respondent poses a significant danger of causing personal injury to himself or herself or others in the near future by having in his or her custody or control, or by purchasing, possessing, or receiving, a firearm or ammunition, the court must issue a temporary ex parte risk protection order.
(d) The court must hold a temporary ex parte risk protection order hearing in person or by telephone on the day the petition is filed or on the business day immediately following the day the petition is filed.
(e) A temporary ex parte risk protection order must include all of the following:
1. A statement of the grounds asserted for the order;
2. The date the order was issued;
3. The address of the court in which any responsive pleading may be filed;
4. The date and time of the scheduled hearing;
5. A description of the requirements for the surrender of all firearms and ammunition that the respondent owns, under subsection (7); and
6. The following statement:

“To the subject of this protection order: This order is valid until the date noted above. You are required to surrender all firearms and ammunition that you own in your custody, control, or possession. You may not have in your custody or control, or purchase, possess, receive, or attempt to purchase or receive, a firearm or ammunition while this order is in effect. You must surrender immediately to the (insert name of local law enforcement agency) all firearms and ammunition in your custody, control, or possession and any license to carry a concealed weapon or firearm issued to you under s. 790.06, Florida Statutes. A hearing will be held on the date and at the time noted above to determine if a risk protection order should be issued. Failure to appear at that hearing may result in a court issuing an order against you which is valid for 1 year. You may seek the advice of an attorney as to any matter connected with this order.”

(f) A temporary ex parte risk protection order ends upon the hearing on the risk protection order.
(g) A temporary ex parte risk protection order must be served by a law enforcement officer in the same manner as provided for in subsection (5) for service of the notice of hearing and petition and must be served concurrently with the notice of hearing and petition.
(h) If the court denies the petitioner’s request for a temporary ex parte risk protection order, the court must state the particular reasons for the denial.
(5) SERVICE.
(a) The clerk of the court shall furnish a copy of the notice of hearing, petition, and temporary ex parte risk protection order or risk protection order, as applicable, to the sheriff of the county where the respondent resides or can be found, who shall serve it upon the respondent as soon thereafter as possible on any day of the week and at any time of the day or night. When requested by the sheriff, the clerk of the court may transmit a facsimile copy of a temporary ex parte risk protection order or a risk protection order that has been certified by the clerk of the court, and this facsimile copy may be served in the same manner as a certified copy. Upon receiving a facsimile copy, the sheriff must verify receipt with the sender before attempting to serve it upon the respondent. The clerk of the court shall be responsible for furnishing to the sheriff information on the respondent’s physical description and location. Notwithstanding any other provision of law to the contrary, the chief judge of each circuit, in consultation with the appropriate sheriff, may authorize a law enforcement agency within the jurisdiction to effect service. A law enforcement agency effecting service pursuant to this section shall use service and verification procedures consistent with those of the sheriff. Service under this section takes precedence over the service of other documents, unless the other documents are of a similar emergency nature.
(b) All orders issued, changed, continued, extended, or vacated after the original service of documents specified in paragraph (a) must be certified by the clerk of the court and delivered to the parties at the time of the entry of the order. The parties may acknowledge receipt of such order in writing on the face of the original order. If a party fails or refuses to acknowledge the receipt of a certified copy of an order, the clerk shall note on the original order that service was effected. If delivery at the hearing is not possible, the clerk shall mail certified copies of the order to the parties at the last known address of each party. Service by mail is complete upon mailing. When an order is served pursuant to this subsection, the clerk shall prepare a written certification to be placed in the court file specifying the time, date, and method of service and shall notify the sheriff.
(6) TERMINATION AND EXTENSION OF ORDERS.
(a) The respondent may submit one written request for a hearing to vacate a risk protection order issued under this section, starting after the date of the issuance of the order, and may request another hearing after every extension of the order, if any.
1. Upon receipt of the request for a hearing to vacate a risk protection order, the court shall set a date for a hearing. Notice of the request must be served on the petitioner in accordance with subsection (5). The hearing must occur no sooner than 14 days and no later than 30 days after the date of service of the request upon the petitioner.
2. The respondent shall have the burden of proving by clear and convincing evidence that the respondent does not pose a significant danger of causing personal injury to himself or herself or others by having in his or her custody or control, purchasing, possessing, or receiving a firearm or ammunition. The court may consider any relevant evidence, including evidence of the considerations listed in paragraph (3)(c).
3. If the court finds after the hearing that the respondent has met his or her burden of proof, the court must vacate the order.
4. The law enforcement agency holding any firearm or ammunition or license to carry a concealed weapon or firearm that has been surrendered pursuant to this section shall be notified of the court order to vacate the risk protection order.
(b) The court must notify the petitioner of the impending end of a risk protection order. Notice must be received by the petitioner at least 30 days before the date the order ends.
(c) The petitioner may, by motion, request an extension of a risk protection order at any time within 30 days before the end of the order.
1. Upon receipt of the motion to extend, the court shall order that a hearing be held no later than 14 days after the date the order is issued and shall schedule such hearing.
a. The court may schedule a hearing by telephone in the manner provided by subparagraph (3)(a)3.
b. The respondent must be personally serviced in the same manner provided by subsection (5).
2. In determining whether to extend a risk protection order issued under this section, the court may consider all relevant evidence, including evidence of the considerations listed in paragraph (3)(c).
3. If the court finds by clear and convincing evidence that the requirements for issuance of a risk protection order as provided in subsection (3) continue to be met, the court must extend the order. However, if, after notice, the motion for extension is uncontested and no modification of the order is sought, the order may be extended on the basis of a motion or affidavit stating that there has been no material change in relevant circumstances since entry of the order and stating the reason for the requested extension.
4. The court may extend a risk protection order for a period that it deems appropriate, up to and including but not exceeding 12 months, subject to an order to vacate as provided in paragraph (a) or to another extension order by the court.
(7) SURRENDER OF FIREARMS AND AMMUNITION.
(a) Upon issuance of a risk protection order under this section, including a temporary ex parte risk protection order, the court shall order the respondent to surrender to the local law enforcement agency all firearms and ammunition owned by the respondent in the respondent’s custody, control, or possession except as provided in subsection (9), and any license to carry a concealed weapon or firearm issued under s. 790.06, held by the respondent.
(b) The law enforcement officer serving a risk protection order under this section, including a temporary ex parte risk protection order, shall request that the respondent immediately surrender all firearms and ammunition owned by the respondent in his or her custody, control, or possession and any license to carry a concealed weapon or firearm issued under s. 790.06, held by the respondent. The law enforcement officer shall take possession of all firearms and ammunition owned by the respondent and any license to carry a concealed weapon or firearm issued under s. 790.06, held by the respondent, which are surrendered. Alternatively, if personal service by a law enforcement officer is not possible or is not required because the respondent was present at the risk protection order hearing, the respondent must surrender any firearms and ammunition owned by the respondent and any license to carry a concealed weapon or firearm issued under s. 790.06, held by the respondent, in a safe manner to the control of the local law enforcement agency immediately after being served with the order by service or immediately after the hearing at which the respondent was present. Notwithstanding ss. 933.02 and 933.18, a law enforcement officer may seek a search warrant from a court of competent jurisdiction to conduct a search for firearms or ammunition owned by the respondent if the officer has probable cause to believe that there are firearms or ammunition owned by the respondent in the respondent’s custody, control, or possession which have not been surrendered.
(c) At the time of surrender, a law enforcement officer taking possession of any firearm or ammunition owned by the respondent, or a license to carry a concealed weapon or firearm issued under s. 790.06, held by the respondent shall issue a receipt identifying all firearms and the quantity and type of ammunition that have been surrendered, and any license surrendered and shall provide a copy of the receipt to the respondent. Within 72 hours after service of the order, the law enforcement officer serving the order shall file the original receipt with the court and shall ensure that his or her law enforcement agency retains a copy of the receipt.
(d) Notwithstanding ss. 933.02 and 933.18, upon the sworn statement or testimony of any person alleging that the respondent has failed to comply with the surrender of firearms or ammunition owned by the respondent, as required by an order issued under this section, the court shall determine whether probable cause exists to believe that the respondent has failed to surrender all firearms or ammunition owned by the respondent in the respondent’s custody, control, or possession. If the court finds that probable cause exists, the court must issue a warrant describing the firearms or ammunition owned by the respondent and authorizing a search of the locations where the firearms or ammunition owned by the respondent are reasonably believed to be found and the seizure of any firearms or ammunition owned by the respondent discovered pursuant to such search.
(e) If a person other than the respondent claims title to any firearms or ammunition surrendered pursuant to this section and he or she is determined by the law enforcement agency to be the lawful owner of the firearm or ammunition, the firearm or ammunition shall be returned to him or her, if:
1. The lawful owner agrees to store the firearm or ammunition in a manner such that the respondent does not have access to or control of the firearm or ammunition.
2. The firearm or ammunition is not otherwise unlawfully possessed by the owner.
(f) Upon the issuance of a risk protection order, the court shall order a new hearing date and require the respondent to appear no later than 3 business days after the issuance of the order. The court shall require proof that the respondent has surrendered any firearms or ammunition owned by the respondent in the respondent’s custody, control, or possession. The court may cancel the hearing upon a satisfactory showing that the respondent is in compliance with the order.
(g) All law enforcement agencies must develop policies and procedures regarding the acceptance, storage, and return of firearms, ammunition, or licenses required to be surrendered under this section.
(8) RETURN AND DISPOSAL OF FIREARMS AND AMMUNITION.
(a) If a risk protection order is vacated or ends without extension, a law enforcement agency holding a firearm or any ammunition owned by the respondent or a license to carry a concealed weapon or firearm issued under s. 790.06, held by the respondent, that has been surrendered or seized pursuant to this section must return such surrendered firearm, ammunition, or license to carry a concealed weapon or firearm issued under s. 790.06, as requested by a respondent only after confirming through a background check that the respondent is currently eligible to own or possess firearms and ammunition under federal and state law and after confirming with the court that the risk protection order has been vacated or has ended without extension.
(b) If a risk protection order is vacated or ends without extension, the Department of Agriculture and Consumer Services, if it has suspended a license to carry a concealed weapon or firearm pursuant to this section, must reinstate such license only after confirming that the respondent is currently eligible to have a license to carry a concealed weapon or firearm pursuant to s. 790.06.
(c) A law enforcement agency must provide notice to any family or household members of the respondent before the return of any surrendered firearm and ammunition owned by the respondent.
(d) Any firearm and ammunition surrendered by a respondent pursuant to subsection (7) which remains unclaimed for 1 year by the lawful owner after an order to vacate the risk protection order shall be disposed of in accordance with the law enforcement agency’s policies and procedures for the disposal of firearms in police custody.
(9) TRANSFER OF FIREARMS AND AMMUNITION.A respondent may elect to transfer all firearms and ammunition owned by the respondent that have been surrendered to or seized by a local law enforcement agency pursuant to subsection (7) to another person who is willing to receive the respondent’s firearms and ammunition. The law enforcement agency must allow such a transfer only if it is determined that the chosen recipient:
(a) Currently is eligible to own or possess a firearm and ammunition under federal and state law after confirmation through a background check;
(b) Attests to storing the firearms and ammunition in a manner such that the respondent does not have access to or control of the firearms and ammunition until the risk protection order against the respondent is vacated or ends without extension; and
(c) Attests not to transfer the firearms or ammunition back to the respondent until the risk protection order against the respondent is vacated or ends without extension.
(10) REPORTING OF ORDERS.
(a) Within 24 hours after issuance, the clerk of the court shall enter any risk protection order or temporary ex parte risk protection order issued under this section into the uniform case reporting system.
(b) Within 24 hours after issuance, the clerk of the court shall forward a copy of an order issued under this section to the appropriate law enforcement agency specified in the order. Upon receipt of the copy of the order, the law enforcement agency shall enter the order into the Florida Crime Information Center and National Crime Information Center. The order must remain in each system for the period stated in the order, and the law enforcement agency may only remove an order from the systems which has ended or been vacated. Entry of the order into the Florida Crime Information Center and National Crime Information Center constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any county in this state.
(c) The issuing court shall, within 3 business days after issuance of a risk protection order or temporary ex parte risk protection order, forward all available identifying information concerning the respondent, along with the date of order issuance, to the Department of Agriculture and Consumer Services. Upon receipt of the information, the department shall determine if the respondent has a license to carry a concealed weapon or firearm. If the respondent does have a license to carry a concealed weapon or firearm, the department must immediately suspend the license.
(d) If a risk protection order is vacated before its end date, the clerk of the court shall, on the day of the order to vacate, forward a copy of the order to the Department of Agriculture and Consumer Services and the appropriate law enforcement agency specified in the order to vacate. Upon receipt of the order, the law enforcement agency shall promptly remove the order from any computer-based system in which it was entered pursuant to paragraph (b).
(11) PENALTIES.
(a) A person who makes a false statement, which he or she does not believe to be true, under oath in a hearing under this section in regard to any material matter commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) A person who has in his or her custody or control a firearm or any ammunition or who purchases, possesses, or receives a firearm or any ammunition with knowledge that he or she is prohibited from doing so by an order issued under this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(12) LAW ENFORCEMENT RETAINS OTHER AUTHORITY.This section does not affect the ability of a law enforcement officer to remove a firearm or ammunition or license to carry a concealed weapon or concealed firearm from any person or to conduct any search and seizure for firearms or ammunition pursuant to other lawful authority.
(13) LIABILITY.Except as provided in subsection (8) or subsection (11), this section does not impose criminal or civil liability on any person or entity for acts or omissions related to obtaining a risk protection order or temporary ex parte risk protection order, including, but not limited to, providing notice to the petitioner, a family or household member of the respondent, and any known third party who may be at risk of violence or failure to provide such notice, or reporting, declining to report, investigating, declining to investigate, filing, or declining to file, a petition under this section.
(14) INSTRUCTIONAL AND INFORMATIONAL MATERIAL.
(a) The Office of the State Courts Administrator shall develop and prepare instructions and informational brochures, standard petitions and risk protection order forms, and a court staff handbook on the risk protection order process. The standard petition and order forms must be used after January 1, 2019, for all petitions filed and orders issued pursuant to this section. The office shall determine the significant non-English-speaking or limited English-speaking populations in the state and prepare the instructions and informational brochures and standard petitions and risk protection order forms in such languages. The instructions, brochures, forms, and handbook must be prepared in consultation with interested persons, including representatives of gun violence prevention groups, judges, and law enforcement personnel. Materials must be based on best practices and must be available online to the public.
1. The instructions must be designed to assist petitioners in completing the petition and must include a sample of a standard petition and order for protection forms.
2. The instructions and standard petition must include a means for the petitioner to identify, with only layman’s knowledge, the firearms or ammunition the respondent may own, possess, receive, or have in his or her custody or control. The instructions must provide pictures of types of firearms and ammunition that the petitioner may choose from to identify the relevant firearms or ammunition, or must provide an equivalent means to allow petitioners to identify firearms or ammunition without requiring specific or technical knowledge regarding the firearms or ammunition.
3. The informational brochure must describe the use of and the process for obtaining, extending, and vacating a risk protection order under this section and must provide relevant forms.
4. The risk protection order form must include, in a conspicuous location, notice of criminal penalties resulting from violation of the order and the following statement: “You have the sole responsibility to avoid or refrain from violating this order’s provisions. Only the court can change the order and only upon written request.”
5. The court staff handbook must allow for the addition of a community resource list by the clerk of the court.
(b) Any clerk of court may create a community resource list of crisis intervention, mental health, substance abuse, interpreter, counseling, and other relevant resources serving the county in which the court is located. The court may make the community resource list available as part of or in addition to the informational brochures described in paragraph (a).
(c) The Office of the State Courts Administrator shall distribute a master copy of the petition and order forms, instructions, and informational brochures to the clerks of court. Distribution of all documents shall, at a minimum, be in an electronic format or formats accessible to all courts and clerks of court in the state.
(d) Within 90 days after receipt of the master copy from the Office of the State Courts Administrator, the clerk of the court shall make available the standardized forms, instructions, and informational brochures required by this subsection.
(e) The Office of the State Courts Administrator shall update the instructions, brochures, standard petition and risk protection order forms, and court staff handbook as necessary, including when changes in the law make an update necessary.
History.s. 16, ch. 2018-3.
1Note.Section 14, ch. 2018-3, provides that:

“(1) Section 790.401, Florida Statutes, is intended to temporarily prevent individuals who are at high risk of harming themselves or others from accessing firearms or ammunition by allowing law enforcement officers to obtain a court order when there is demonstrated evidence that a person poses a significant danger to himself or herself or others, including significant danger as a result of a mental health crisis or violent behavior.

“(2) The purpose and intent of s. 790.401, Florida Statutes, is to reduce deaths and injuries as a result of certain individuals’ use of firearms while respecting constitutional rights by providing a judicial procedure for law enforcement officers to obtain a court order temporarily restricting a person’s access to firearms and ammunition. The process established by s. 790.401, Florida Statutes, is intended to apply only to situations in which the person poses a significant danger of harming himself or herself or others by possessing a firearm or ammunition and to include standards and safeguards to protect the rights of respondents and due process of law.”