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01/10/2014
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Injunction for Stalking – Enough is Enough, or is it?

In Florida, there is a legal action called an Injunction for Protection against Stalking. Injunctions are also called orders for protection or stay away orders in other jurisdictions.  Stalking is defined as whent an accused “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.

Obviously, any Petitioner (the person seeking the injunction) can claim that the alleged conduct caused substantial emotional distress. However, the Court’s do not just accept every person’s version of being emotionally distressed. The Court will measure the distress against the “reasonable person standard”. In other words, if the claimed emotional distress is itself an unreasonable reaction, then a stalking injunction will not be granted.  Each case should be decided upon the totality of the circumstances.

In a recent case of workplace sexual advancement, the parties had been co-workers for nearly three years. The Petitioner alleged that the Respondent (Person accused) made frequent sexually-oriented comments, asked for help with errands outside of work, asked for rides, asked to meet for lunch and once was caught looking through phone messages. The Respondent denied having sexually harassed, admitting some interactions did occur but those that did happen were not intended in that way. The Petitioner testified that she had sought counseling and the help of a sexual harassment advocate as a result, and that she had twice reported the Respondent to management at work and the Respondent was eventually fired.

Even though the Petitioner ended up in counseling, the Court held that the incidents did not rise to the level of justifying a stalking injunction. The Court went on to point out that to justify this kind of injunction, the conduct must be bad enough to produce substantial emotional distress in a reasonable person. It is not enough to be weirded out or uncomfortable. According to the Court, the allegations fell short of the standards to justify a stalking injunction and the collateral consequences that flow from it. Unintended or unknown consequences of having a judgment of injunction are good reasons to defend injunctions and why there is an objective standard such as the reasonable person standard.

The firm represents people in injunctions, and other family or criminal matters. We will have to perform a conflict check before we can consult with either party in a civil case. While there are some community resources available to Petitioners, a lawyer will not be appointed to any Respondent because, these are civil cases (violating an injunction is criminal). Please click, call or fill out the form to hire a lawyer to help with a stalking injunction.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Risk Protection Orders – Florida’s Red Flag / Gun Violence Restraining Order/Injunction Law

Whatever the name, there is now a movement sweeping the country to create a procedure to confiscate firearms of suspected at risk individuals before they perpetuate gun violence. Some people refer to these as Red Flag Laws or Gun Violence Restraining Orders/Injunctions.

In Florida, the law defines it as a Risk Protection Order (RPO). It is a preemptive strike upon a risk of violence and is a mere injunction by another name. An injunction is simply an Order directing the Subject to do or not do something.  The act ordered is to surrender firearms and any license to carry a concealed weapon or firearm, but not other weapons. However, a Subject of the Order may elect to transfer the firearms to another person.

In Florida, only law enforcement can file a Petition for a Risk Protection Order. However, other states and proposed federal legislation (SB 7) allow for loosely defined family members, former dating partners etc. in addition to police of sheriffs. A Petition 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 and identify the number, type and locations of all firearms and ammunition.

Law enforcement must make efforts to notify family and those who may be at risk. The Court must schedule a hearing within fourteen (14) days of the receipt of a Petition. This is the trial.  However, a petitioning police officer or sheriff can request a temporary order without a hearing; any temporary ex parte orders expire on the date of the hearing. After the hearing, the order can only last up to a year. At the end of a year, law enforcement can seek an extension of up to a year. Only one motion to vacate the Order can be filed. the Subject has the burden to prove by clear and convincing evidence that they do not pose a danger once an Order is in place

At the hearing, the burden of proof is clear and convincing evidence that the Respondent poses a significant danger of causing personal injury to themselves or others by having a firearm. The Court can also order the Respondent or Subject of the Risk Protection Order to complete a mental health evaluation or chemical dependency evaluation.

Even though these orders seek to remove or impinge upon a fundamental constitutional right, the right to bear arms, there is no requirement that the State provide an attorney. In fact, there is written into the law that there is no requirement that either party to be represented by an attorney. Any time the government is accusing a person, that person should seriously consider hiring a lawyer but in these types of cases, the respondent must hire their own lawyer. Please click, call or fill out the form to hire a lawyer to fight a Risk Protection Order.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Served Injunction Paperwork In Florida?

First, determine whether the Court did or did not enter a temporary injunction. An injunction is an order from the Court telling the Respondent in the case to not do certain things and stay away from certain places. A person who violates an injunction can be held in contempt of court AND can be charged with a separate criminal offense. Violating an injunction leads to jail quite often.

Second, the case must be prepared in full and be ready to be presented to the Court on the day of the hearing. The hearing date is the TRIAL. The hearing is the final hearing, the only hearing that may ever be had, it is the one and only shot to defend the case and avoid a permanent injunction. If the plan, after being served an injunction, is or was to go to court on the day and find out what the options are, then the Court will likely advise that the options are to accept an injunction or have a final hearing. The Court cannot give legal advice. The Judge is there to make a final decision and not to advise.

It is very difficult to have subpoenas served and evidence gathered in time for the hearing which can be in as little as a week or two. That is why it is important to get started right away. Injunctions are civil cases; a person cannot go to jail in a civil case (unless they violate the injunction). Because injunctions are civil cases (unless violated), a person does not have a right to have a lawyer appointed. If assistance is wanted a lawyer must be hired. You always have the right to hire a lawyer. Upon receiving injunction paperwork, a defendant must act quickly. Please click or call to hire an injunction lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Domestic Violence and the Work Place

Domestic violence has made a lot of headlines recently and by now most of us have seen the ads the NFL felt compelled to bombard us with. My office defends those accused of the criminal charge of domestic violence but we also represent victims seeking injunctions and proceeding with divorce or dissolution of marriage.

Domestic violence in the courthouse usually comes in three forms. Those are 1) a criminal case involving some form of battery, assault, or stalking, 2) an injunction for protection against domestic violence and 3) divorce or paternity actions seeking to establish timesharing or custody. Sometimes an alleged perpetrator can be facing all three different litigations at the same time. No one plans for three litigations or the time and money that it takes to defend or prosecute them. 

While a victim of domestic violence will only have two cases to which they are a party, even the alleged victim will have to spend some time in a criminal case. The time it takes to be a litigant can be a major distraction, inconvenience or otherwise negatively impact a person’s employment. Fortunately, there are laws that protect litigants from an employer reacting by firing or retaliating against a person for becoming a victim or a witness. Subpoenaed witnesses and victims of domestic violence are protected from employer retaliation by specific separate statutes.

Whether you or a loved one are an accused or victim of domestic battery or other violence, you will need help navigating the system. Click, call or fill out the form for assistance.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Can an injunction be vacated, dismissed, dissolved, modified or removed once it is in place?

You can vacate, dismiss, dissolve, modify or change an order of protection against domestic violence, injunction or restraining order, sometimes also called a stay-away order. Once a domestic violence injunction is in place, the only way to remove it is through the court. Often people seek out a domestic violence divorce or family lawyer after it is too late and the court has already entered an injunction. If circumstances have changed, you can ask the court to change the order of protection against domestic violence.  To get relief from the injunction, a party must show that the scenario underlying the injunction no longer exists so that the continuation of the injunction would serve no valid purpose.

To be entitled to a hearing to determine whether to dissolve an injunction, a person must show a change in the circumstances and file a motion to vacate, dissolve or modify the injunction or otherwise get rid of the injunction. This is true whether the injunction was sought in addition to a divorce or arrest for criminal offense of domestic battery. The injunction can only be removed, or changed by the Judge. If there is an open criminal case of domestic battery whether felony or misdemeanor, then a person may have to apply for a change of the conditions of pre-trial release as well.

Recently an Alachua County judge handling domestic violence injunctions summarily denied a motion without a hearing and was appealed. The respondent to the restraining order appealed the order summarily denying his motion to dissolve a domestic violence injunction in favor of his former wife. The motion alleged that circumstances between the parties have changed since the injunction was entered. Specifically, he alleged that the parties have interacted without violence for several years, that he now lives far away, and that the parties’ only interaction relates to time-sharing exchanges of their child.

The First District Court of Appeal held that in light of these allegations, the trial court erred in summarily denying the motion to dissolve the injunction. A domestic violence injunction may be modified based on changed circumstances and a showing that the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose. The appeals court reversed the order denying the motion and required the court to have an evidentiary hearing.

The result of this for people with injunctions in place against them is if a change in circumstances can be shown, the court must set a hearing wherein you will be allowed to present evidence to try and vacate or dismiss the injunction. Please click, call or fill out the form to learn more about how we can help.

Gainesville (352) 371-9141

Ocala (352) 694-4529