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From Dean v. Bevis, decided today by the Florida Court of Appeal, in an opinion by Judge Morris Silberman, joined by Judges Diego Casanueva & Robert Morris:
This appeal arose from a temporary injunction for protection against stalking entered in favor of Jaclyn Diane Bevis and against W. Alecs Dean. The injunction prohibited Dean from possessing any firearms or ammunition and ordered Dean to surrender them to law enforcement….
On March 30, 2020, Bevis filed a sworn petition for injunction for protection against stalking and made the following allegations. When Bevis was working as a news reporter, Dean would provide her with information, but over time he became obsessed with her. When Dean learned that she was romantically involved with someone else, he lost connection with reality. He sent daily texts to her and demanded that she communicate with him. He began to contact her significant other. Among other things, he started a website in her name and threatened to blackmail her and to put disparaging information on the website. "While his threats of me have not typically been physical in nature, he did once tell me he was 'looking to kill off another character in his autobiography.'" She did not allege when he made that statement to her. She feared for her safety on the basis of "his statements, his mental state, and his access to firearms."
On the same day that Bevis filed her petition, the trial court issued a temporary injunction for protection against stalking. The court found that "[t]he statements made under oath by Petitioner make it appear that Section 784.0485, Florida Statutes, applies to the parties, and that stalking exists." Among the provisions checked on the temporary injunction are "Respondent shall not use or possess a firearm or ammunition," and "Respondent shall surrender any firearms and ammunition in Respondent's possession to the Lee County Sheriff's Department." The injunction notified the parties that a hearing would be held on April 7, 2020, to determine whether the trial court should issue a final judgment of injunction for protection against stalking.
Officers served the injunction on Dean on March 31, 2020, and Dean contends that the officers seized his firearms and ammunition. On April 6, 2020, Dean filed a motion for immediate release of property and asserted that the trial court was without authority to order the seizure of his firearms and ammunition based only on a temporary injunction for stalking. He requested an immediate return of his firearms and ammunition until the trial court held a hearing and a final order was entered on the injunction petition. After a hearing on Dean's motion for immediate release of property, the trial court denied Dean's motion, and the final hearing was set on Bevis's injunction petition. Dean then filed this interlocutory appeal.
Dean contends that his right to keep and bear arms as provided for in the Florida Constitution was violated when the trial court entered the temporary injunction which ordered that he "shall not use or possess a firearm or ammunition" and that he "shall surrender all firearms and ammunition" that he possessed. The Florida Constitution provides, "The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law." Thus, "the plain language of article I, section 8, of the Florida Constitution explicitly authorizes the Legislature to regulate the manner of exercising the right to keep and bear arms for self-defense." Norman v. State (Fla. 2017). The right to bear arms is not absolute but rather "is subject to the right of the people through their legislature to enact valid police regulations to promote the health, morals, safety and general welfare of the people." Norman.
The Florida Legislature "created a cause of action for an injunction for protection against stalking." Stalking occurs when a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person." "'Harass' means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." …
[Under] section 790.233, … if a final injunction for stalking is in effect, a person may not possess firearms or ammunition, and a violation of this provision is a crime…. [But no statute provides] express statutory authority for a court to prohibit a person from possessing firearms or ammunition upon the issuance of a temporary injunction for protection against stalking. Therefore, the trial court did not have the express authority to prohibit the possession of firearms and ammunition based upon the temporary injunction.
The trial court determined that the "catchall" provision of section 784.0485(5)(a) provided the statutory authority for the trial court to order the surrender of Dean's firearms and ammunition upon the issuance of the temporary injunction. That catchall provision states, "If it appears to the court that stalking exists, the court may grant a temporary injunction ex parte, pending a full hearing, and may grant such relief as the court deems proper, including an injunction restraining the respondent from committing any act of stalking." …
"Where the legislature includes wording in one section of a statute and not in another, it is presumed to have been intentionally excluded." Here, the legislature expressly included persons who have a final injunction in effect for domestic violence or stalking as persons who are prohibited from possessing firearms. See § 790.233(1). And in section 784.0485(6)(e), the legislature provided that a final injunction for stalking must "provide that it is a violation of s. 790.233 and a misdemeanor of the first degree for the respondent to have in his or her care, custody, possession, or control any firearm or ammunition." The legislature did not make this provision for temporary injunctions ….
This court recently addressed an ex parte temporary injunction for protection against stalking that was dissolved and the trial court's failure to grant the respondent's motion for return of his firearms in Wolfe v. Newton (Fla. 2d DCA 2020). The trial court would not order return of the property without an evidentiary hearing…. [T]his court precluded the trial court from conducting an evidentiary hearing as a condition to the return of Wolfe's firearms that had been seized via the ex parte order. In the opinion, this court noted its concern for the lack of express statutory authority for the ex parte seizure of firearms in that case….
Similarly, in this case it is impossible to tell from the temporary injunction why the trial court deemed it proper to require Dean to surrender his firearms and ammunition. We reach only the narrow issue of whether the allegations in this case were sufficient to support such a decision. We conclude that any authority that the catchall provision may provide did not permit the prohibition of Dean's possession of firearms and ammunition under the alleged facts of this case.
We contrast section 784.0485(5)(a) with the "red flag" law that Bevis relied upon in the trial court. Bevis asserted that the red flag law allows confiscation of a firearm when a person has not committed a crime. The red flag law, found in section 790.401, is "The Marjory Stoneman Douglas High School Public Safety Act" that provides for risk protection orders…. But to obtain an ex parte temporary order under the red flag law, there must be detailed allegations based on personal knowledge to show the respondent poses a significant danger of causing personal injury to himself or others in the near future based on the possession of a firearm. Here, section 784.0485 does not require detailed allegations showing that Dean posed a significant danger of causing personal injury in the near future based on his possession of a firearm. And Bevis's petition did not make such allegations…. She did not allege any express threat of physical violence against her, and she did not allege any express or implied threat of the use of a firearm or any other weapon against her.
Bevis's allegations do not show that Dean posed a significant danger to Bevis or anyone else for personal injury based on his possession of a firearm. Under the limited allegations contained in her petition, the trial court erred by relying on the provision that it "may grant such relief as the court deems proper," to include in the temporary stalking injunction provisions that infringed upon Dean's constitutional right to keep and bear arms as provided for in the Florida Constitution….