Defense for Injunctions Against Repeat Violence
An injunction is an order of a court compelling a person not to commit a particular act or to perform a particular act. Failure to follow the court’s order is grounds for a contempt sanction to issue, and possibly additional criminal charges.
Anyone served with a notice of an injunction against repeat violence should not take the court case lightly. The court can severely limit a person’s freedom by issuing an injunction. Moreover, a person could lose his or her freedom for violating the order.
A person faced with an injunction hearing against repeated violence should align with an experienced and successful injunction defense attorney. An injunction against repeat violence necessarily implicates criminal behavior. No one accused, or even someone suspected of being accused of criminal behavior, should speak on their behalf. Any statements made in court could be used against the respondent at a later criminal trial. A knowledgeable injunction defense attorney can craft a defense that protects the respondent’s rights at the injunction hearing and any criminal trial, if criminal charges issue.
Florida statues 784.046 defines repeat violence in the context of applying for an injunction. A victim of repeat violence can turn to the courts for protection if the person is the victim of two or more incidents of violence or stalking by the respondent within the six months before the petitioner seeks relief from the court. The act of violence could be against the petitioner or a member of the petitioner’s immediate family.
The petitioner asking for an injunction against repeat violence does not need to allege any special relationship with the respondent to seek relief from the court. Conversely, an injunction for protection against dating violence or domestic violence requires the petitioner to provide factual details describing the specialized nature of the relationship with the respondent. However, a person seeking protection from domestic or dating violence need not allege more than one incident to evoke the protection of the court.
Florida Restraining Orders Against Repeat Violence Are Similar to Other Injunctions
All of the injunctions a Florida court can issue relating to protection from violence have several similarities, such as:
- The parties in court are referred to as the petitioner and respondent.
- All petitions must be sworn and subscribed to under the pains and penalties of perjury either before the issuing court clerk or a notary public.
- A judge can issue a temporary injunction to protect the alleged victim until the court has the opportunity to conduct a full hearing on the merits of the case.
- The local sheriff, or the sheriff in the county in which the respondent resides, must serve the respondent with notice of the temporary injunction.
- The respondent must have notice of all hearings, even if the court did not issue a temporary injunction.
- Both parties have a right to be heard, to present evidence and call witnesses.
- The judge may issue a permanent or final injunction after a full hearing.
- The injunction remains in effect until it expires as per the order of the court, or one of the parties successfully moves to dissolve it or modify it.
- The respondent could suffer penalties for violating the terms and conditions of the injunction.
Qualifications Specific to Repeat Violence Injunctions
To obtain an injunction against repeat violence, the petitioner must allege at least two incidents of violence or stalking. The two incidents must be against the petitioner or the petitioner’s immediate family members. At least one of the alleged incidents forming the basis of the petition must occur within the six months immediately before the petitioner seeks protection from the court. The petitioner must allege that he or she is in fear of additional acts of violence if the court refuses to issue the injunction.
The order can be crafted by the court to protect adults and minor children from further violence or contact from the respondent. The court could order the respondent to stay away from the petitioner and have no contact, either directly or indirectly, with the petitioner and the petitioner’s family. The judge may also order the respondent to enter counseling at his or her expense. Lastly, the court may order the respondent to surrender his or her firearms, rifles, and shotguns and ammunition to the sheriff while the order is in effect if the court believes ordering the respondent to surrender firearms and ammunition will best protect the petitioner. However, if the injunction is to prevent stalking, then the court must order the respondent to surrender all firearms, rifles, shotguns, and ammunition for the duration of the order.
Relationships Covered by Repeat Violence Injunctions
Repeat violence appears in many contexts. Repeat violence can occur between neighbors, or between employees or co-workers, schoolmates, roommates, or former friends. The respondent will probably not be a perfect stranger, although a stranger could stalk the petitioner and be subject to an injunction as a repeat violent offender.
Repeat Violence Injunction Defenses
The respondent has several avenues to pursue when defending against an injunction. The judge can — and most likely will — issue a permanent injunction if the petitioner is successful. Therefore, the respondent needs to take this process seriously and plot a strong defense. Otherwise, the respondent will bear the burden of the injunction forever.
A person facing an injunction as a repeat offender can attack the petitioner’s credibility. The petitioner must allege at least two incidents of violence and credibly allege that he or she remains in fear of the respondent. Every case will be different from every other, and each case turns on the facts of the particular situation. The respondent might be able to point out how the petitioner is exaggerating the situation, the petitioner initiated the alleged violent incidents, the petitioner misidentified the person who committed the acts of violence, or that the person has failed to express a credible sense of fear.
The judge will accept documentary evidence in addition to hearing from witnesses. Text messages, social media posts, photographs, and other evidence might provide the judge with insight into what is going on between the parties. Also, the respondent might be able to prove that the petitioner has a motive to lie to get the injunction against the respondent. Whatever the case might be, a seasoned repeat violence injunction defense lawyer will fight to prevent injustice.