Injunctions Against Repeat Violence
All too frequently I have been called upon to obtain an injunction on behalf of a party who has been a victim of “repeat” violence or I have been asked to represent a person at an injunction hearing who has been accused of committing “repeat” violence. In Florida, we have three statutes that provide injunctions to prevent violence. Two of them, Florida Statutes 741.28 and 741.30, deal directly with “domestic violence” which is violence committed against someone who resides in the same household as another person such as husband or wife, or domestic partner. The other statute, §784.046 addresses “repeat” violence, “sexual” violence and “dating” violence by parties who do not necessarily reside in the same household. While one can assume the types of claims that are made in sexual violence and dating violence cases, “repeat” violence cases often arise out of disputes with one’s neighbors that escalate into physical confrontations. Sadly, more often than not the underlying dispute arises out of seemingly minor issue such as an overhanging tree branch or a fence that encroaches on the neighbor’s property. I have never been retained to obtain, or defend against, an injunction in any case where domestic violence, sexual violence or dating violence has been alleged. This is certainly not to say that these types of violence do not occur. Instead, I suspect the reason for this is that the violence that is alleged in these types of cases is a crime and the victim is more apt to leave it up to the criminal justice system to address the wrong.
“Violence” under the repeat violence statute is defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” See §784.046(2). “Repeat violence” is defined as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition for an injunction, which are directed against the petitioner or the petitioner’s immediate family member.” §784.046(1)(b), Fla. Stat. See also Levy v. Jacobs, 69 So.3d 403, 404 -405 (Fla.4th DCA 2011). Stalking has been interpreted to mean “repeated acts of following or harassment.” Lukacs v. Luton, 982 So.2d 1217, 1219 (Fla. 1st DCA 2008); see also§784.048(2), Fla. Stat. (providing that a person who “willfully, maliciously, and repeatedly follows or harasses another person” commits the crime of stalking). Harassment is defined as a series of acts over a period of time “directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.048(1)(a); Fla. Stat.
Note that the “repeat” violence statute was not enacted to enable judges to enter orders to “keep the peace” between parties who are unable to get along. See Horne v. Endres, 61 So.3d 428, 429 (Fla. 1st DCA 2011). “Petitions for injunctions against repeat violence, or against domestic violence for that matter, are to be used only to rectify the egregious conduct outlined in the statutes themselves.” (concurring opinion in Polanco v. Cordeiro, 67 So. 3d 235, 238 (Fla. 2d DCA 2010). Thus, in Titsch v. Buzin, 59 So. 3d 265, 266-67 (Fla. 2d DCA 2011) the court noted that mere shouting and obscene hand gestures, without an overt act that places the victim in fear, do not constitute the type of violence required for an injunction. See also, Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006) (“Even a representation that the offender owns a gun and is not afraid of using it is insufficient to support an injunction absent an overt act indicating an ability to carry out the threat or justifying a belief that violence is imminent.”). On the other hand, in Goosen v. Walker, 714 So. 2d 1149 (Fla. 4th DCA 1998) the court held that a neighbor’s videotaping of complainants on two to four occasions during the preceding four months, when complainants were in their own yard or adjoining area, constituted “stalking,” which was not constitutionally protected activity.
Note also that in determining whether an incident causes substantial emotional distress so as to constitute “harassment” the courts will apply a “reasonable person” standard. That is, would a reasonable person feel they were being harassed.