DOMESTIC VIOLENCE: STALKING LEGAL OUTLINE (JUNE 2020)

A. DEFINITIONS

Stalking

 Occurs when a person willfully, maliciously, and repeatedly follows, harasses, or

cyberstalks another person. Stalking is a misdemeanor of the first degree.

§ 784.048(2).

 Harass - to engage in a course of conduct directed at a specific person which

causes substantial emotional distress to that person and serves no legitimate

including threats delivered by electronic communication or implied by a pattern of

conduct, which places the person who is the target of the threat in reasonable

fear for his or her safety or the safety of his or her family members or individuals

closely associated with the person, and which is made with the apparent ability to

carry out the threat to cause such harm. It is not necessary to prove that the

person making the threat had the intent to actually carry out the threat. The

present incarceration of the person making the threat is not a bar to prosecution

under this section. § 784.048(1)(c).

Aggravated stalking is a third-degree felony and occurs when:

 A person willfully, maliciously, and repeatedly follows, harasses, or cyberstalks

another person commits the offense of aggravated stalking, a felony of the third

degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 784.048(4).

 A person who willfully, maliciously, and repeatedly follows, harasses, or

cyberstalks a child under 16 years of age commits the offense of aggravated

stalking, a felony of the third degree, punishable as provided in s. 775.082, s.

775.083, or s. 775.084. § 784.048(5).

 A person who, after having been sentenced for a violation of §§ 794.011, 800.04,

or 847.0135(5) and prohibited from contacting the victim of the offense under §

921.244, willfully, maliciously, and repeatedly follows, harasses, or cyberstalks the

attempt to access, the online accounts or Internet-connected home electronic

systems of another person without that person’s permission, causing substantial

emotional distress to that person and serving no legitimate purpose.

§ 784.048(1)(d).

Sexual cyberharassment

 Found in § 784.049(2)(c), it is a misdemeanor of the first degree to publish to an

Internet website or disseminate through electronic means to another person a

sexually explicit image of a person that contains or conveys the personal

identification information of the depicted person without the depicted person’s

consent, contrary to the depicted person’s reasonable expectation that the image

847.001. § 784.049(2)(d). If a person has a prior conviction for the same crime and

commits a second or subsequent crime, the crime is a felony of the third degree. A

law enforcement officer may arrest, without an arrest warrant, any person that he

or she has probable cause to believe has violated this law. § 784.049(4)(a). The

statute also provides that the victim may initiate a civil action against a person

who violates this law and such civil action may include an injunction and monetary

damages. § 784.049(5).

B. ISSUES

The Statute requires two or more instances of stalking

 Over a period of 4 months, the respondent repeatedly emailed and sent gifts to

file for an injunction against stalking which was granted by the court. The

respondent appealed, and the appellate court reversed the ruling. Although the

injunction and found that there was sufficient evidence to show that the former

husband’s conduct constituted stalking. On three occasions, he had gone to the

former wife’s house at night, walked around her property, and shined a flashlight

into the windows. Robertson v. Robertson, 164 So. 3d 87 (Fla 4th DCA 2015).

 The trial court granted a permanent injunction against stalking after the

respondent pushed and verbally confronted his neighbor after she set off fireworks

on the 4th of July. The appellate court reversed the lower court’s decision, finding

that there was not competent, substantial evidence to support a finding of

stalking. The entire incident took place within a twenty minute time frame, which

the appellate court ruled was not a series or pattern of conduct and was not

define stalking as a multiplier of itself and makes no reference to the repeat

violence statute. Therefore, the court held that the injunction provisions of §

784.0485 only require the petitioner to prove a single incident of stalking.

“Harassing” must cause emotional distress

 The respondent appealed an order of protection against stalking entered on behalf

of his former girlfriend. The appellate court reversed and found that the incidents

described by the victim would not have caused a reasonable person to suffer

substantial emotional distress. Plummer v. Forget, 164 So. 3d 109 (Fla. 5th DCA

2015).

 The respondent appealed from an injunction for protection against stalking which

purpose of arranging visitation, and, since they did not cause emotional distress,

the court reversed and vacated the injunction. Lippens v. Powers, 179 So. 3d 374

(Fla. 5th DCA 2015).

 Courts apply a reasonable person standard, not a subjective standard, to

determine whether an incident causes substantial emotional distress. The

petitioner was granted a four–year injunction for protection against stalking after

injunction. Richards v. Gonzalez, 178 So. 3d 451 (Fla. 3d DCA 2015).

 The trial court issued a stalking injunction after the respondent made derogatory

comments, followed the petitioner with his car after work, and made a flyer with

negative comments about the petitioner and passed it out in the petitioner’s

neighborhood. The appellant appealed the stalking injunction entered against him

and claimed that the trial court erred in entering the injunction because there was

insufficient evidence of a course of conduct to support a finding of stalking and

that the conditions imposed by the trial court as part of the injunction were overly

broad and thus unconstitutional as a restriction on the appellant’s freedom of

speech. The court affirmed the stalking injunction and noted that the flyer may

protected by the First Amendment. Thoma v. O'Neal, 180 So. 3d 1157 (Fla. 4th

DCA 2015).

 The respondent appealed an injunction for protection against stalking that

the conduct in question caused the petitioner substantial emotional distress under

§ 784.048(1)(a), the court reversed and remanded the case. Roach v. Brower, 180

So. 3d 1142 (Fla. 2d DCA 2015).

 Neighbors filed petitions for injunctions for protection against stalking against

each other, and the court issued both injunctions. One neighbor appealed, stating

that the evidence was insufficient to establish that appealing neighbor followed or

 An injunction was entered against a woman at the request of her husband’s

girlfriend, and the woman appealed. The appellate court reversed, noting that

there was no proof that the repeated calls and texts the woman made to her

husband caused the girlfriend substantial emotional distress. Ashford-Cooper v.

Ruff, 230 So. 3d. 1283 (Fla. 1st DCA 2017)

 The nanny appealed after the court awarded her former employer an injunction

for protection against stalking against her. The nanny claimed the evidence was

insufficient to support the stalking injunction. However, the appellate court

believed that the former employer had suffered severe emotional distress as a

result of the nanny’s actions and affirmed the injunction. The nanny had

Cannot be overbroad

 The respondent claimed that the petitioner, a police officer, cut him off in traffic,

so he followed the police officer into the neighborhood where they both lived and

complained to the officer about his driving. The officer then gave the respondent

a ticket for driving without a seatbelt, which the respondent denied. The

respondent then sent several letters to the officer's boss, other public officials,

and to the officer’s home address, complaining about his mistreatment, and,

additionally, posted the officer’s picture on the internet with a complaint. The

officer petitioned for an injunction against stalking, which was issued and

prohibited the respondent from coming within 500 feet of the officer's residence,

injunction, it also stated that the injunction was overly broad since the first

amendment protects the respondent’s right to criticize public officials and struck

 A neighbor received a stalking injunction against the other neighbor that included

a provision that provided: “The respondent may travel on his driveway to enter

and leave his property but may not linger on his driveway. The respondent is

petitioner.” The injunction also required the respondent to remove the cameras

bordering the neighbor's property within ten days and allowed the respondent to

be on his driveway for that ten-day period in order to comply with the injunction.

The appellate court affirmed the injunction but reversed the portion of the order

that required the respondent to stay off of his driveway. The court ruled that this

provision was overbroad because it included both behavior that could constitute

stalking and legal behavior that should have been permitted. Smith v. Wiker, 192

So. 3d 603 (Fla. 2d DCA 2016).

Due Process Issues

 The defendant claimed he could not be convicted of violating a stalking injunction

5

, 2018 or until the final judgment of injunction of protection, if entered, is

served to the respondent.” Since the temporary was still in effect when the

 The petitioner was awarded an injunction against stalking that the respondent

support the stalking injunction since the petitioner did not show that the

respondent’s behavior caused substantial emotional distress and only described

one incident rather than the requisite two. The court also noted that they would

have still reversed, even if the evidence presented was sufficient, because the

 A couple lived together for seven years before breaking up. The girlfriend filed a

petition for protection against stalking after the boyfriend forced her out of their

home and made over 200 harassing and threatening phone calls and text messages

to both her and her family. The boyfriend tried to introduce copies of the texts

allow the copies into evidence. The judge did not allow the witness to testify, and

the boyfriend appealed. The appellate court reversed and remanded since the

 The court struck a stalking injunction provision that forbid the respondent from

coming within 500 feet of the petitioner’s home since that prohibited the

respondent from accessing and using his property. The court also noted that the

therefore the respondent was unaware of the 500 foot provision and did not have

an opportunity to object. Givens v. Holmes, 241 So. 3d 232 (Fla. 2d DCA 2018).

 The court reversed because the stalking injunction was not supported by

competent, substantial evidence. The petitioner did not provide documentation of

the numerous phone calls, emails and texts referenced during the hearing, and,

without those, there was no way for the trial court to determine whether or not

the communications would have created substantial emotional distress under a

reasonable person standard. Reid v. Saunders, 230 So. 3d. 1288 (Fla. 1st DCA

2017).

 The court summarily denied the petition for an injunction against stalking in which

the petitioner alleged that, over the span of several days, the respondent, a

former co-worker, sent her over 160 unwanted photographs, videos, and messages,

court denied the petition without prejudice, finding that the petitioner failed to

allege sufficient facts even after being afforded an opportunity to amend her

petition. In its denial, the trial court failed to provide any explanation as to how

the allegations were insufficient. The appellate court reversed and stated that the

 The defendant appealed after being convicted of aggravated stalking, claiming

that the court abused its discretion by allowing several text messages into

evidence. At the beginning of trial, the parties discussed the admissibility of

chief because the state failed to file a timely notice to admit the text messages as

collateral crime evidence. However, the court further ruled that this would not

neck, then threatened to kill her. On a later date, she testified that the

doors, and threatened her. The respondent did not appear at the hearing. The

court denied the injunction, stating that there was no physical violence but that

to dissolve an ex parte injunction prohibiting cyberstalking. Both parties have

from the websites. The order was based upon various texts, emails, posts, and a

fear of violence. The appellant claimed that the texts and posts were merely the

 The Supreme Court amended Florida Rule of Judicial Administration 2.420 to add

two new categories of information in court records that the clerk of courts must

maintain as confidential. The clerk must keep identifying information confidential