Injunctions Are Not Just Civil
Criminal Law Committee // The Briefs, October 2019, Vol. 87 No. 8
Injunctions (a.k.a. restraining orders or protection orders) feel like they fall somewhere between civil and criminal law. They are civil by law but feel like criminal by operation and effect. A final order of injunction can create a permanent and public record that will very likely affect a person’s ability to live in certain places, get a job, become a citizen, or obtain a security clearance. Additionally, the person can be placed on “probation,” requiring them to report with the court on regular intervals, and, if they “VOP” (violate probation), they can go to jail. I use quotations because civil injunctions do not result in criminal probation, and they do not always result in a criminal violation of probation. Nevertheless, while injunctions are categorized as civil, the effects of them are undeniably criminal.
In this quasi-criminal realm, both parties are provided far fewer resources, help, and guidance than in the criminal justice system. Assistant state attorneys are not assigned to these cases to help the petitioner/victims, although many counties have free victim advocates who provide support (e.g., Legal Aid Society of the Orange County Bar Association, Inc.; Harbor House of Central Florida; Help Now of Osceola). Assistant public defenders are not provided to respondents, who are on their own to find and pay for an attorney. As a result, judges have the challenging task of having to resolve matters with one or two pro se parties.
Injunctions often occur concurrently with a civil or criminal case, either at the advice of an attorney, friend, or law-enforcement officer. More and more, however, I believe they are being initiated independently because of the parties’ access to online resources. Oftentimes, neither party seriously appreciates the consequences of an injunction nor understands the process. Do not make the mistake of telling a client that civil injunctions are no big deal. They are! I have met with countless clients whose lives were significantly affected years down the road because of an injunction that they did not oppose. Many clients tell me the same thing: my lawyer/friend/ colleague told me not to worry about it.
Injunctions fall under several categories that sound like criminal offences: domestic violence; dating violence; repeat violence; sexual violence; stalking; and the newly enacted category, exploitation of a vulnerable adult.
Here are some pointers about injunctions:
- The burden of proof is on the petitioner.
- The standard of proof is by a preponderance of the evidence.
- The court’s ruling must be supported by competent, substantial evidence.
- Injunctions are maintained in the public record.
- There is a process for “sealing” injunction records under Florida Rule of Judicial Administration 2.420(c).
- Attorneys’ fees may be awarded in certain injunction cases, according to our Supreme Court in Lopez v. Hall, 233 So. 3d 451, 453-54 (Fla. 2018).
- Parents can file an injunction on behalf of their children.
- Depositions can (and often should) be taken in injunction matters.
- It is perfectly acceptable to reach out to the other party (or their attorney, if they have one) to try to resolve the matter and reach a resolution short of going to court and having a trial or final hearing.
- Witnesses can be called and evidence can be presented at the final hearing.
- Violations of an injunction may be handled by the court that issued the injunction, or charges may be filed by the local state attorney, as substantive violations are first degree misdemeanors.
- A great resource on injunctions is Florida’s Domestic Violence Benchbook, which is published by the Office of the State Courts Administrator.
Private practitioners have the unique opportunity to litigate on both sides of injunctions. When you represent a petitioner, you are acting more or less like a prosecutor. You listen to a client’s version of events, decide whether you and your client want to use your time and skill to go after the other person, and then seek an injunction. You may also decide to voluntarily dismiss your case for an injunction. When you represent a respondent, you are acting more or less like a criminal defense attorney. You review the accuser’s (petitioner’s) allegations against your client and work out a theory of defense. You may also engage in something similar to a plea negotiation with the petitioner, the petitioner’s attorney, and sometimes the judge to avoid a final hearing/trial.
If a final hearing is needed, you should engage in discovery by setting depositions and deciding what witnesses you will call and what evidence to present. Additionally, you will need to know what elements to prove before the court will issue an injunction. The elements of each type of injunction are listed below. Because injunctions derive from statutes, you must carefully read the statute and consider the burden of proof necessary to determine whether you can establish a particular cause of action.
Petitioner must show that they have been the victim of domestic violence OR that they are in imminent danger of becoming a victim of domestic violence. 1
Petitioner is required to demonstrate to the court that there have been two separate incidents of violence or stalking directed at the petitioner or a member of the petitioner’s immediate family – one of which must have occurred within the past six months of the filing of the petition. 2
Petitioner only has to show that they were the victim of one incident of sexual violence. Sexual violence means sexual battery, lewd or lascivious acts committed upon (or in the presence of ) a person younger than 16, luring or enticing a child’s sexual performance, or another forcible felony where a sexual act is committed or attempted. 3
Petitioner can provide the requisite information in one of two ways: first, by proving that they are a victim of dating violence and have reasonable cause to believe that they are in imminent danger of becoming the victim of another act of dating violence; or second, by showing that they have reasonable cause to believe that they are in imminent danger of becoming a victim of dating violence. 4
Petitioner has to prove two separate incidents of stalking. “Stalking” means willful, malicious, and repeated following, harassing, or cyberstalking. 5
Exploitation of a Vulnerable Adult
As the newest injunction law in the state, there is not much case law on this yet. As currently written, there are four different categories of petitioner: a vulnerable adult; the guardian of a vulnerable adult; a person or entity acting on behalf of a vulnerable adult with consent; and a person who simultaneously files a petition for determination of incapacity and appointment of an emergency temporary guardian with respect to the vulnerable adult. The petitioner must show that there is exploitation or an imminent danger of exploitation upon the vulnerable adult. 6
Thomas Bert Feiter, Esq., with Fighter Law in Orlando, has been Board Certified in criminal trial law since 2012. Fighter Law represents clients in criminal defense, injunctions, personal injury, wills, estate planning, and probate. Mr. Feiter has worked with and helped many victims of crimes as a prosecutor for the State of Florida, as special victim counsel in the U.S. Army JAG Corps, and as an attorney in private practice. He has been a member of the OCBA since 2010.
1 § 741.30(1)(a), Fla. Stat.
2 § 784.046(1)(b), Fla. Stat.
3 § 784.046(1)(c), Fla. Stat.
4 § 784.046(1)(d), Fla. Stat.
5 § 784.0485, Fla. Stat.
6 § 825.1035, Fla. Stat.