The Volokh Conspiracy

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Right to Get Guns Back Once Temporary Anti-Stalking Injunction Is Dismissed

"We certainly would not fault a trial judge's desire to ensure public safety. But judicial concern, understandable as it may be, does not confer judicial power."


From Wolfe v. Newton, decided yesterday by the Florida Court of Appeal (Judge Matthew Lucas, joined by Judges Craig Villanti and Robert Morris):

Lisa Newton and Mr. Wolfe lived on the same street in Tampa. Apparently, Mr. Wolfe became concerned with the manner in which Ms. Newton was keeping her dog and using an adjoining lot. Ms. Newton, in turn, became concerned with the manner in which Mr. Wolfe was monitoring her and her property. On March 17, 2020, Ms. Newton filed a petition for injunction for protection against stalking in the Hillsborough County Circuit Court, alleging that Mr. Wolfe had driven and walked around her house on a few occasions over the past year and recorded her on his mobile phone.

After reviewing Ms. Newton's petition, a circuit judge entered an ex parte temporary injunction for protection against stalking against Mr. Wolfe. In addition to ordering Mr. Wolfe to have no contact with or come within 500 feet of Ms. Newton, her home, or her place of employment, the ex parte injunction required Mr. Wolfe to surrender all of his firearms and ammunition to the Hillsborough County Sheriff's Office. Mr. Wolfe complied with the terms of the ex parte injunction and attended the return hearing that was set for March 25, 2020.

At the conclusion of that hearing, the circuit court entered two orders [denying and dismissing the petition]…. Both orders stated "[t]he [c]ourt does not find evidence of stalking as defined by Florida Statute[] section 784.048 and interpreted by the appellate courts."

So no finding of stalking, no injunction, no decision that Wolfe had done anything back. Wolfe therefore asked for his guns back, given that "the court had both denied and dismissed the petition that had given rise to the ex parte temporary injunction against him."

"Mr. Wolfe informs us that he was unable to obtain a date at that time, but six days later, on March 31, the court sua sponte set a hearing on his motion for June 4, 2020." But then, on June 3, the judge's assistant informed Wolfe that the judge wouldn't rule on the motion unless Wolfe appeared—by Zoom, given the epidemic—for a hearing. "Wolfe replied that he did not have the capability to appear by Zoom, but that he could appear by telephone." The judge said no, and when Wolfe didn't appear by Zoom, delayed the hearing still further, until June 30.

Wolfe asked the Court of Appeal to review the matter, and the court agreed with him:

[Mr. Wolfe's] argument is fairly straightforward: the only ostensible basis for seizing his firearms was the ex parte injunction entered on Ms. Newton's petition; when the court later dismissed and denied her petition, that injunction was dissolved; since there was no lawful basis for the sheriff to continue holding his firearms, and since his case was over, he should not have to attend an evidentiary hearing to have his property returned to him….

There is no question that the circuit court had lost subject matter jurisdiction over this matter months before the June evidentiary hearing was scheduled to commence. The final orders were entered on March 25 and Ms. Newton never filed an appeal or sought rehearing. There was no express reservation of jurisdiction over any matter within either of the orders. Thus, the court had no lawful authority to decide any further substantive matters in this case. The only question is whether the hearing the court attempted to convene could, in some way, be said to have been ancillary to the stalking injunction proceeding that had concluded and become final.

If it appeared to us that the scheduled hearing was going to be confined to simply ensuring the prompt return of Mr. Wolfe's property to Mr. Wolfe, perhaps we could deem it as ancillary {[, t]hough there would seem to be little point in having to have a hearing for the presiding judge to sign an appropriate order directed to the Sheriff's Office}.

But we would be obtuse if we failed to recognize why the court ordered the kind of hearing that it did. This was a hearing where Mr. Wolfe's video or live appearance was mandatory so that the court could compel him to provide testimony under oath and then watch and listen to his responses. Clearly, the court had something it wished to inquire about, and it wanted Mr. Wolfe's sworn answers to its questions…. All of which leads us to the inescapable deduction that the court was ordering this evidentiary hearing not to facilitate the return of Mr. Wolfe's seized firearms, but to decide whether there was some independent reason Mr. Wolfe's firearms ought not to be returned to him.

That was not a decision the circuit court could make. The case between Ms. Newton and Mr. Wolfe was over and the court's order was final. The court had no lawful authority to compel Mr. Wolfe to testify as a prerequisite to what should have been the purely ministerial act of returning his property to him. {We need not address Mr. Wolfe's [Second Amendment and Due Process Clause] concerns given our holding that the court was without authority to convene this hearing.} …

We suspect the reason the court ordered this evidentiary hearing had nothing to do with Mr. Wolfe or Ms. Newton personally, but was simply a court policy born from a concern that returning firearms to prevailing respondents in proceedings such as these could pose some kind of potential danger. Stalking injunction hearings can be emotionally charged and volatile. Some litigants involved in these proceedings may become confrontational, even violent, after they leave the courthouse.

We recognize that. And we certainly would not fault a trial judge's desire to ensure public safety. But judicial concern, understandable as it may be, does not confer judicial power…. Accordingly, we grant the petition and prohibit the circuit court from convening an evidentiary hearing as a condition to returning the property that had been seized pursuant to the prior ex parte order….

Seems quite right to me. The court also noted a couple of other things in the process:

[1.] We pause here to observe that there does not appear to be any express statutory authorization for the ex parte seizure of Mr. Wolfe's firearms in this context, and the ex parte order contained no finding and cited no legal authority that would support that provision of the order (it was simply a checked box on a form). [T]he statute that governs stalking injunctions[] does not expressly empower a court to require respondents to surrender their firearms and ammunition on an ex parte basis. [A different statute] would prohibit firearm and ammunition possession if a final stalking injunction had been ordered and in effect, but obviously that is not the case here. Mr. Wolfe's firearms were not seized under either sections 790.401 (governing risk protective orders) or 790.08 (governing arrests). It may be that the court's ex parte command to Mr. Wolfe to surrender his firearms and ammunition was relief the court "deem[ed] proper" pursuant to [the temporary order statute's] ex parte provisions, but if so, it is impossible to tell from the order why the court deemed it.

That issue is not before us today. We point it out only so that our opinion will not be read as a tacit endorsement of this manner of ex parte seizure in a stalking injunction proceeding….

[2.] In his motion, Mr. Wolfe relayed that the Sheriff's Office had informed him that it would not return his firearms without a separate court order directing them to do so. On April 2, 2020, the Sheriff's Office sent correspondence to the presiding judge indicating it had "no objection" to returning Mr. Wolfe's firearms. Our opinion should not be read as an endorsement of the sheriff requiring such an order before returning firearms taken in the course of a stalking injunction or the sheriff's ability to assert objections to the return of such firearms absent an independent State interest in holding them.