Right to Bear Arms: Florida’s Second District Court of Appeal Holds in Favor of Gun Owner in Temporary Injunction Case

By: Iman Zekri, Esq.

It is not often that family law attorneys confront Second Amendment issues in their domestic relations cases. Yet in a recent decision by Florida’s Second District Court of Appeal, these two very different areas of the law converged. In Dean v. Bevis, 322 So. 3d 167 (Fla. 2d DCA 2021), the Second District held that the trial judge was not authorized to prohibit an alleged stalker from possessing firearms upon issuing a temporary injunction.

The Right to Bear Arms

It is undeniable that the right to keep and bear arms is a constitutionally protected right. Article I, Section 8 of the Florida Constitution specifically provides:

“The right of the people to keep and bear arms . . . shall not be infringed, except that the manner of bearing arms may be regulated by law.”

Of course, the right to bear arms is not unlimited, and the Florida Constitution expressly authorizes the Legislature to regulate the manner of exercising the right to bear arms.

News Reporter’s Claims of Stalking

The facts of Dean v. Bevis revolve around a news reporter, Jaclyn Bevis, who received tips from an informant, W. Alecs Dean, in the course of her work as a journalist. In 2020, Bevis filed an injunction petition against Dean for alleged stalking. Bevis claimed that Dean became obsessed with her over time and started a website in her name. She also alleged that while Dean’s threats were not physical in nature, he once told her that he was looking to kill off another character in his autobiography. 

On the same day Bevis filed her petition, the Circuit Court for Lee County, Florida issued a temporary injunction against Dean. The injunction specifically prohibited Dean from possessing any firearms or ammunition. Dean subsequently filed a motion for release of his property, insisting that the trial court was not permitted to order the confiscation of his firearms based on the temporary injunction. The trial court denied the motion, and Dean appealed to the Second District.

The Appellate Court’s Decision

The Ruling

On appeal, the Second District reversed the temporary injunction to the extent it prohibited Dean from possessing firearms or ammunition. In all other respects, the temporary injunction was upheld. While the appellate court acknowledged that the right to bear arms is subject to valid regulations enacted by the Legislature, the court concluded that Florida law does not expressly authorize a court to bar a person from possessing firearms based upon issuance of a temporary stalking injunction.

Florida Statutes

Section 790.233 of the Florida Statues specifically addresses the possession of firearms by an individual who is subject to a final stalking injunction. In particular, Florida law provides that if a final injunction for stalking is in effect, the respondent is prohibited from possessing any firearms.

In turn, Section 784.0485 of the Florida Statutes states that a final stalking injunction must provide that it is a misdemeanor for the respondent to possess any firearms. Absent from both statutes is any express authority for a trial court to prohibit a person from possessing firearms upon issuance of a temporary stalking injunction.

Accordingly, the Second District determined that the trial court did not have the express authority to bar Dean from possessing firearms based on the temporary injunction. The Second District noted that the Florida Legislature specifically included the word “final” in the statute prohibiting the possession of firearms by individuals subject to a stalking injunction, but the Legislature did not provide for the same prohibition for temporary stalking injunctions.

Catchall Provision

Further, while the statute addressing temporary injunctions contains a catchall provision allowing a trial court to “grant such relief as the court deems proper,” such language does not provide a trial court with blanket authority to prohibit the possession of firearms by a respondent in every case where a temporary injunction is issued.

No Specific Allegations Regarding Threats of Use of Firearms

Importantly, Bevis’s petition did not allege any express or implied threat of the use of a firearm or other weapon against her. The allegations in Bevis’s petition did not show Dean posed a danger to her or anyone else for personal injury based on his possession of firearms. Thus, the trial court erred in relying on the catchall provision to include a prohibition that infringed on Dean’s constitutional right to keep and bear arms as provided by the Florida Constitution.

Key Takeaways

As a brief recap, under Florida law, a final stalking injunction must provide that it is a crime for the respondent to possess firearms or ammunition. Conversely, upon issuance of a temporary stalking injunction, there is no express statutory authority permitting a court to prohibit the respondent from possessing firearms.

The appellate court’s ruling in Dean v. Bevis seems to suggest that for a trial court to properly seize a person’s firearms on the basis of a temporary stalking injunction, there must be sufficient facts to demonstrate that the respondent poses a significant danger in the near future based on his or her possession of firearms.

To put it simply, a trial judge cannot merely check a box on every temporary injunction issued that prohibits the respondent from possessing firearms. The Second District has announced that such a procedure would violate one’s constitutional right to bear arms.

Those needing assistance in family law matters may contact me directly at 239-344-1119 or iman.zekri@henlaw.com.