Posted by Nydia Streets of Streets Law in Florida Domestic Violence

When a temporary domestic violence injunction is entered in Florida, the order usually contains a provision obligating the party against whom the injunction is sought to surrender all firearms. Since a temporary injunction is entered without a hearing and without an opportunity for the accused to defend him or herself against the allegations, there is an argument that the seizure of a person’s property is unfair. This was an issue in the case Dean v. Bevis, 2D20-2348 (Fla. 2d DCA June 4, 2021).

After he was served with a temporary injunction against stalking and his firearms were seized, the accused filed a motion for immediate release of his property, arguing the court did not have authority to seize his firearms. The trial court denied his motion, and he appealed.

The appellate court noted the Florida Constitution’s support of the right to bear arms. It also noted that this right is not absolute and “is subject to the right of the people through their legislature to enact valid police regulations to promote the health, morals, safety and general welfare of the people." The court acknowledged “The legislature regulates firearms in chapter 790, Florida Statutes (2019). [internal citation omitted]. For instance, section 790.23 prohibits persons convicted of felonies from owning or having in their care, custody, possession, or control firearms or ammunition, unless they have met certain conditions. § 790.23(1), (2). In section 790.233, the legislature specifically addressed the possession of firearms or ammunition by a person who has been issued a final injunction to prevent stalking.”

Here, because no final injunction had been entered, and because only a temporary injunction was in place, the appellate court agreed with the accused that the trial court had no authority to seize his firearms. The opinion went on to discuss the inapplicability of Florida’s red flag law, found in section 790.401 of the Florida Statutes. The temporary injunction was therefore reversed insofar as it prohibited the accused from possessing firearms or ammunition.

Discuss your case with a Miami family law attorney to determine how the law may apply to your specific circumstances.