Lyons Snyder & Collin. Trial Attorneys.

Newsroom

Definition of Stalking

Phil Photo New By Philip M. Snyder

As a criminal defense and family law attorney in Fort Lauderdale and Coral Springs, FL, I oftentimes receive inquiries regarding the definition of “stalking” as it relates to a Petition for Injunction for Protection against Domestic Violence or, more commonly known as, a Petition for Restraining Order.   Many of my clients, and surprisingly a large number of Judges, oftentimes misinterpret the definition of stalking in this context.  As such, I have highlighted a few recent cases describing when a Court should grant or deny a Petition for Injunction for Protection against Domestic Violence for stalking and what is required to meet  the statutory definition of stalking.

In Florida an individual can seek three different types of injunctions: Domestic Violence Injunction, Dating Violence Injunction, and Repeat Violence Injunction.   The Court can find “Stalking” as a basis to grant any of these injunctions.  This article does not touch on the basic eligibility requirements for each type of injunction, however.   Please review their respective statutes (Florida Statute 741.30 or 784.046) for an explanation of which injunction you or your client should apply for protection with the Court.

In order for a court to issue an Injunction for Protection against Domestic Violence (“hereinafter referred to as “Injunction” or “Restraining Order”), the party seeking the Injunction must establish that he or she was a victim of Domestic Violence (Domestic Violence Injunction) and/or is in IMMINENT DANGER of becoming the victim of domestic violence (Repeat and Dating Violence).

One method of proving Domestic Violence is by showing that an individual is a victim of stalking.    Stalking is defined in Florida Statute 784.048(2) as the act of WILLFULLY, MALICIOUSLY, and REPEATEDLY FOLLOWING, HARASSING, or CYBERSTALKING another person.  “HARASS” is defined as engaging in a course of conduct directed at a specific person that causes SUBSTANTIAL EMOTIONAL DISTRESS in such person and serves NO LEGITIMATE PURPOSE.

The stalking statute was designed to protect woman (men) from being harassed by ex-husband’s (ex-wife’s) or former boyfriends (girlfriends), by ensuring that victims did not have to be injured or threatened with death before stopping a stalker’s harassment.   It is crucial, however, that the party seeking the Injunction establishes their fear of imminent danger.  Additionally, the law requires more than general relationship problems and uncivilized behavior to support the issuance of an Injunction.   More specifically, generalized threats to engage in unpleasant, but not violent behavior are not sufficient to support the issuance of an injunction.

For example, In Sorin v. Cole, 929 So.2d 1092 (Fla. 4th D.C.A., 2006), the Fourth District Court of Appeals held that “Mere shouting and obscene hand gestures, without an OVERT ACT that places the victim in fear, does not constitute the type of violence required to support an Injunction.   The Sorin Court found that even a “representation that the offender owns a gun and is not afraid of using it was found 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” … “Individuals’ allegations that neighbor said, “[curse word] you and your mother for having you” and “I’m not finished with you and will be back for more”” were insufficient to support entry of Injunction.   The Sorin Court held that while these statements made have placed the Petitioner in fear, there was no overt act, ability to carry out the threat, or justifiable threat of imminent harm – A mere threat to commit an assault is not enough.  Of note, the Petitioner must present sufficient evidence to establish an objective (not subjective) reasonable fear that violence is imminent.

SITUATION WHERE THE TRIAL COURT PROPERLY GRANTED INJUNCTION

In Lopez v. Lopez, 922 So.2d 408 (Fla. 4th D.C.A., 2006), the trial Court correctly granted an Injunction as the evidence established that the former husband stalked his former wife.

The evidence adduced at a hearing for Restraining Order showed that: (1) the former husband repeatedly called his former wife at work and yelled profanities at her resulting in the former wife losing her job; (2) former husband threatened to go to job site of wife’s friend and cause him to lose his job; (3) husband did in fact go to friend’s job site and reported friend to friend’s supervisor; (4) husband told wife that is he could not be in her life that nobody else would; (5) husband went to wife’s house and knocked on doors and windows yelling and screaming; and (6) husband called wife 20 times on a single day prompting wife to change her telephone number.    Seemingly, the Lopez Court found that under the totality of the circumstances and objective person would reasonable be placed in fear of the former husband’s harassment.   Although not discussed in the opinion, the crucial factor likely was the former husband’s appearance at the wife’s house where he yelled, screamed, and knocked on doors.

SITUATION WHERE THE TRIAL COURT IMPROPERLY GRANTED INJUNCTION

In Ravitch v. Whelan, 922 So.2d 408 (Fla. 4th D.C.A., 2006), the trial Court incorrectly granted an injunction against repeat violence against Mr. Ravich.   The Fifth District Court of Appeals overruled the Trial Court and held that no substantial evidence existed to demonstrate that Ms. Whelan, Mr. Ravitch’s ex-girlfriend, suffered any acts of violence or other conduct prohibited by statute governing issuances of repeat violence to warrant an Injunction.

The evidence adduced at hearing for Restraining Order showed that within a period of two to three weeks, and following a break-up, Ms. Whelan sent Mr. Ravitch five emails advising him that they would not reconcile their relationship.   Over the course of the next month, Mr. Ravitch left numerous voice mails and sent numerous emails to Ms. Whelan.  None of Mr. Ravich’s correspondence was of a hostile or threatening manner.  On a few occasions, Mr. Ravitch would appear at a restaurant/bar that Ms. Whelan would frequently patronize; Mr. Whelan would not make contact with Ms. Whelan at the restaurant/bar, however.   On two occasions, Mr. Ravitch visited Ms. Whelan’s residence; on one such occasion [Mr. Ravich] left two notes, a card, some personal items, and rose on [Ms. Whelan’s] doorstep.  Only after it became apparent that no reconciliation would occur, Mr. Ravich’s attorney sent a letter to Ms. Whelan asking for repayment of monies allegedly loaned to her by Mr. Ravitch over the course of the relationship.   Soon thereafter, Ms. Whelan filed a Petition for Injunction against Repeat Violence against Mr. Ravich.

The Trial Court entered an order of protection against Mr. Ravitch reasoning that Mr. Ravich’s attempts to contact Ms. Whelan were willful and malicious because they were “in direct contravention to her instructions after she had made it known that she did not want contact.”

The Fourth District Court of Appeals overruled the Trial Court and reasoned that “Whelan’s documentation of “stalking” lists emails, voice mails, and phone conversations … The evidence does not suggest that any of the emails, voice mails, or phone messages were threatening, hostile, or abusive, however.”  Ms. Whelan additionally admitted at the hearing that just three days before filing the Petition for Restraining Order, [Ms. Whelan] entered the bar (where Mr. Ravitch was already present) and opted to stay “ to demonstrate to [Mr. Ravich] that she had moved on.”  The Fourth District Court of Appeals found that nothing in the record demonstrates any basis for the Trial Court to find that a reasonable person would suffer any “substantial emotion distress” from such incidents (i.e. non-threatening emails, voice mails, and phone conversations).

In Gianni v. Kerrigan, 836 So.2d 1106 (Fla. 2nd D.C.A., 2003), the Trial Court incorrectly granted an Injunction against repeat violence against Mr. Gianni.   The Fifth District Court of Appeals overruled the Trial Court and held that the alleged second incident required for an Injunction for repeat violence was legally insufficient.

In his petition, Mr. Kerrigan alleged that on May 3, 2010, Mr. Gianni committed a battery against [Mr. Kerrigan] by “throwing him off a bar stool, putting his foot on his mouth, grabbing his pinky finger and kicking him in the neck.”   During the altercation, Mr. Gianni also allegedly threatened to kill Mr. Kerrigan.  Prior to the incident, on April 29, 2001, Mr. Gianni allegedly made numerous phone calls to Mr. Kerrigan with threats of violence.

At the hearing for Restraining Order, however, Mr. Kerrigan testified that he only listened to one of the numerous phone calls allegedly made by Mr. Gianni on April 29, 2001.  At the time, Mr. Kerrigan believed Mr. Gianni’s phone calls as “threats – minor stuff” and that he was not in fear.  As a result, the Fifth District Court held that Mr. Gianni’s phone calls did not qualify as type of violence necessary for a Restraining Order.

The aforementioned cases are just a small sample of situations where the Court was left to determine whether allegations of stalking rose to the level necessary to grant an Injunction for Protection Against Domestic Violence.  In the event you are seeking an Injunction for Protection Against Domestic Violence as a result of stalking or are served with paperwork for a hearing for Injunction for Protection Against Domestic Violence as a result of stalking it is important to contact an experienced criminal law or family attorney who understands the proper definition of stalking.   If at all possible, do not attend an Injunction hearing without a competent criminal law or family law attorney.