Guns

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."

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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 [Frances M. Perrone] 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.

NEXT: Making Sense of Texas v. Pennsylvania

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  1. Sounds right, but is there anything here that actually requires the Sheriff to return the guns?

    1. No, but it sounds like the Sheriff’s Office has no objection itself to returning the guns — it just wants a court order authorizing this (or perhaps even commanding it, which would be just fine with the Sheriff). I expect that the trial court will read the Court of Appeal opinion and issue the order, with which the Sheriff’s Office will go along.

    2. The fifth amendment? They ARE his property, after all.

    3. You mean, other than the general principle you aren’t allowed to keep stuff that don’t belong to you?

  2. Don’t own any guns

    Don’t want any guns

    Believe appropriate gun control is in line with the second amendment[IE well regulated]]

    Judges like this are the reason there is resistance to gun control

    seriously, WTF

    Even if the guy is not quite right, you need a legal reason to do things

    1. Well regulated applies to the militia, the right to keep and bear arms without infringement is a right to the people.

      English was never my best subject either, but you can’t read the phrase “a well regulated militia” as regulating people or guns.

    2. As already mentioned, what is being regulated is the militia. But also of more is the etymology of “regulate” at the time of the founding, had nothing whatsoever to do with regulatory laws. It meant in common parlance at the time, to make normal or properly functioning. It is where we get terms for items such as “pressure regulator”.

      Likewise, a dictionary definition of “militia” entirely ignores WHO the founders considered the militia to be: every single able bodied male citizen. With today’s discrimination laws, that would certainly be every single able bodied citizen. And of course it is, since we know that a standing army in the US is unconstitutional, and a person’s safety is solely their responsibility.

    3. The 2nd amendment reserves the right to keep and bear arms to individual persons, while also affirming the authority of free states to form and arm militias. These two things are not mutually exclusive, and doesn’t give the state any power to restrict individually owned arms. This is reinforced by the 10th amendment.
      The tenth amendment:
      “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people.”

    4. Appreciate that, thanks

  3. Does not have the capability to appear via Zoom, but does have the ability to petition the appeals court (he was pro se so maybe…). Borrowing a friend’s laptop would have seemed to be easier…

    1. Maybe he was smart enough to know the court was just trying to engineer an excuse to deny him return of his guns, and didn’t care to play along?

      1. I’m thinking the same thing….

        It’s like dealing with a voodoo scientist, while you can’t challenge their labeling you “mentally ill” if they have ever examined you, you *can* challenge it if they have never examined you. The so-called “Goldwater Rule.)

        1. That’s not the Goldwater Rule.

          1. “On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement.”

            OK, technically the actual Goldwater rule wouldn’t appear to apply to nobodies like you or me, just public figures. But that is the general point of it: Don’t diagnose unless you’ve examined.

    2. Having read the decision I understand he did object to any hearing at all because he felt it was not necessary.

      I also wondered whether the guy might be a lawyer or had one help him since there is a fair amount of legal terminology included. At least he is obviously fairly well educated and literate.

  4. What upsets me is that you have a judge who almost inevitability is a man hating feminist who violates the civil rights of a man with total impunity.

    If he stole her car, he’d be in jail — why isn’t she? Why isn’t she required to compensate him for the loss of the use of his property?

    Folks, stuff like this is more common than you might think (the resolution isn’t) and it’s how Joe Sixpack is going to view yesterday’s SCOTUS decision.

    1. We have hit the point where liberals live in a complete fantasy world.

      Elections are never stolen.
      The United States is a country built on racism.
      Global warming is going to be the death of us all.
      The KKK is the biggest threat to the black community.
      Abortions are awesome, but executing convicted murders is for the birds.

      I could go on and on, but what is the point.

      1. The conspiracy of ignorance masquerades as common sense.

      2. Right, because an election could be stolen, when your guy lost it must have been stolen, fantasy world indeed

      3. The KKK is the biggest threat to the black community.

        I don’t know how those boys managed to get black gangbangers to do their dirty work for them.

        -jcr

  5. Game playing little tyrant judge needs to be fired.

    1. The VAWA needs to be repealed, it’s creating little tyrants like her.

      1. A snake’s-nest of venomous judges abused VAWA-inspired legislation against someone close to me to try and seize his guns and jail him. A narcissistic neighbor claimed she felt threatened when she said he insluted her. The statute she abused to obtain her TRO was NC’s 50C (nondomestic restraining order). The clerk & the TRO judge coddled her and commingled 50B (domestic violence ROs) with 50C (civil nondomestic RO), which has zero language in it about confiscating guns. And then before the defendant, who ended up required to attend court 29 times – yes, 29! – had been served with the TRO, the plaintiff was already in court suing out a show-cause order, for which he could have been fined $500 and jailed 6 months. After 4 years defending himself, mostly pro se, and corrupt judges crawling out of the woodwork, he prevailed. It was a rough ride but NO convictions after 2 cyberstalking warrants and 5 show-cause orders. In the end she grabbed up stakes and fled NC for VA.

        Yer damn right VAWA needs repealing.

  6. I’m glad the court addressed the fact that ordering surrender of the gun in the first place appeared to have no legal authority or basis.

    1. It “addressed” the fact — but then took no action.
      The judge seized the guns unlawfully, the sheriff was holding the guns unlawfully, the appeals court knew all this and just clucked its tongue.

  7. It will be interesting to follow up and see if the lower court actually complies, in as much as the higher court refrained from issuing the order in anticipation of voluntary compliance.

  8. Wolfe should file a criminal complaint against the sheriff and the judge for depriving him of his civil rights under color of authority.

    -jcr

  9. Trusting that the court below will promptly enter an order granting Mr. Wolfe’s pending motion, we will withhold issuing the writ at this time.

    Bullshit. The judge has already shown bad faith, don’t give her any wiggle room. Don’t want to encourage larval Sullivans.

    -jcr

  10. Good write-up. Now do United States v. Flynn.

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