Stalking Injunction Attorney in Miami

One of the most commonly filed domestic violence injunctions in the state of Florida is an injunction for protection against stalking.  Stalking can consist of the repeated following, harassment, or cyberstalking of one person by another. 

While a stalker can exhibit violent behavior, a victim of stalking violence doesn’t necessarily have to allege violence to be granted an injunction under the statute.  In many stalking cases, a victim of stalking violence can simply show evidence of unwanted communications which might consist of phone calls, text messages, emails, or communications through social media. 

Whether you are seeking or need assistance defending against an injunction for protection against stalking, your case should be thoroughly evaluated by an attorney. 

What Is an Injunction?

An injunction is an order from the court that directs an individual to stay away from that person or that person’s property.  It is also commonly referred to as restraining order or protective order. There are five types of injunctions in the state of Florida related to domestic violence:

• Stalking Injunctions 
• Domestic Violence Injunctions 
• Sexual Violence Injunctions 
• Repeat Violence Injunctions 
• Dating Violence Injunctions 

Each injunction requires different evidence or testimony to obtain a permanent injunction.  The burden of proof is always on the person that filed the injunction, also called the “Petitioner”.  The person that defends against the injunction is called the “Respondent”. 

After the Petitioner files the injunction, the Judge will review only the facts alleged in the four corners of the Petition to determine if there is a sufficient basis to grant a temporary injunction against the respondent.  If the Judge grants a temporary injunction, then the case will be set within 15 days for a permanent injunction hearing. During this period, law enforcement will attempt to serve the Respondent with the temporary injunction. 

What Is Stalking?

Under Fla. Stat. 784.048, “stalking” is defined as “willfully, maliciously, and repeatedly following, harassing, or cyberstalking” another individual. “Harass” means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that persons and serves no legitimate purpose. 

“Cyberstalk” means to either:

1. Engage in a course of conduct to communicate, or to cause to be communicated, directly, or indirectly, words, images, or language by or through the use of electronic mail or electronic communication, directed at or pertaining to a specific person; or
2. To access, or attempt to access, the online accounts or internet-connected home electronic systems of another person without that person’s permission, 

and causing substantial emotional distress to that person and serving no legitimate purpose. 

As one can see, under any theory of stalking, the Petitioner is required to prove that the unwanted contact “served no legitimate purpose”.  Courts have found that a respondent had a legitimate purpose in contacting a petitioner in the following instances resulting in a dismissal of the injunction:

• Girlfriend’s act of taking pictures of automobile and license plate of car driven by boyfriend’s former girlfriend in their neighborhood served legitimate purpose because the current girlfriend was attempting to show boyfriend that his ex-girlfriend was still coming to neighborhood.  Gonzalez v. Funes, 300 So. 3d 679 (4^th DCA 2020). 
• Filmmaker’s act of contacting individual for the purpose of informing her of his documentary served a legitimate purpose and is not considered stalking.  O’Neill v. Goodwin, 195 So. 3d 411, (4^th DCA 2016).
• Businessman’s emails to other party had a legitimate purpose since he was attempting to get other party to drop what he considered a frivolous lawsuit against him. David v. Textor, 189 So. 3d 871, (4^th DCA 2016).

A Petitioner in a stalking case must also prove that the unwanted conduct caused the Petitioner “substantial emotional distress”.  In evaluating whether a Petitioner has suffered substantial emotional distress, courts apply a reasonable person standard and analyze whether a reasonable person in Petitioner’s shoes would have suffered substantial emotional distress.  In making this evaluation, courts have found that the Petitioner suffered no substantial emotional distress in the following cases:

• Respondent’s actions of visiting Petitioner’s office once and calling twice to ask about the Petitioner’s whereabouts would not cause a reasonable person substantial emotional distress.  Touhey v. Seda, 133 So. 3d 1203, (2^nd DCA 2014)
• Respondent’s act of staring at Petitioner while she was sunbathing would not cause a reasonable person substantial emotional distress.  Paulson v. Rankart, 251 So. 3d 986 (1^st DCA 2018). 
• Respondent’s act of banging on Petitioner’s door would not cause a reasonable person substantial emotional distress resulting in the dismissal of the injunction.  David v. Schack, 192 So. 3d 625 (4th DCA 2016).