Terrance J. Pickett v. Holly C. Copeland

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-293

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TERRANCE J. PICKETT,

Appellant,

v.

HOLLY C. COPELAND,

Appellee.

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On appeal from the Circuit Court for Escambia County.

Jan Shackelford, Judge.

January 17, 2018

JAY, J.

Terrance J. Pickett appeals the trial court’s Final Judgment

of Injunction for Protection Against Stalking. Although we

disagree that Mr. Pickett was deprived of due process during the

hearing, we agree with Mr. Pickett that the evidence was legally

insufficient to support the issuance of the injunction against him.

Consequently, we reverse.

Mr. Pickett claims that competent, substantial evidence did

not support the trial court’s imposition of the permanent

injunction against stalking. A trial court has broad discretion to

grant an injunction, and we review an order imposing a permanent

injunction for a clear abuse of that discretion. Noe v. Noe, 217 So.

3d 196, 199 (Fla. 1st DCA 2017); Weisberg v. Albert, 123 So. 3d 663,

664 (Fla. 4th DCA 2013). But the question of whether the evidence

is legally sufficient to justify imposing an injunction is a question

of law that we review de novo. Wills v. Jones, 213 So. 3d 982, 984

(Fla. 1st DCA 2016).

Section 784.0485(1), Florida Statutes (2016), “create[s] a

cause of action for an injunction for protection against stalking.”

The “petition for an injunction for protection against stalking may

be filed in the circuit where the petitioner currently or temporarily

resides, where the respondent resides, or where the stalking

occurred.” § 784.0485(1)(f), Fla. Stat. As defined in section

784.048(2), Florida Statutes (2016), stalking occurs when a person

“willfully, maliciously, and repeatedly follows, harasses, or

cyberstalks another person[.]” (Emphasis added.) “Harass” is

defined in section 784.048(1)(a) to mean “engag[ing] in a course of

conduct directed at a specific person which causes substantial

emotional distress to that person and serves no legitimate

purpose.” (Emphasis added.) In its turn, “course of conduct” is

defined as “a pattern of conduct composed of a series of acts over a

period of time, however short, which evidences a continuity of

purpose.” § 784.048(1)(b), Fla. Stat. (emphasis added).

“Thus, by its statutory definition, stalking requires proof of

repeated acts.” Lukacs v. Luton, 982 So. 2d 1217, 1219 (Fla. 1st

DCA 2008); see also Power v. Boyle, 60 So. 3d 496, 498 (Fla. 1st

DCA 2011) (“Stalking has been interpreted to mean ‘repeated acts

of following or harassment.’”) (quoting Lukacs, 982 So. 2d at

1219)). Stated differently, repeated acts are required for “one act

of stalking.” Lukacs, 982 So. 2d at 1219 (emphasis in the original);

see also Packal v. Johnson, 226 So. 3d 337 (Fla. 5th DCA 2017)

(reversing permanent injunction for protection against stalking

violence because the evidence did not support a finding of repeat

harassment); Carter v. Malken, 207 So. 3d 891, 894 (Fla. 4th DCA

2017) (“A minimum of two incidents of harassment are required to

establish stalking.”).

In contrast, several courts have held that a stalking injunction

requires proof of two or more separate incidences of “stalking.” See,

e.g., Burns v. Bockorick, 220 So. 3d 438, 440 (Fla. 4th DCA 2017)

(“‘In order to be entitled to an injunction for stalking, the petitioner

must allege and prove two separate instances of stalking.”’)

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(quoting David v. Schack, 192 So. 3d 625, 627-28 (Fla. 4th DCA

2016)); Klemple v. Gagliano, 197 So. 3d 1283, 1285 (Fla. 4th DCA

2016) (same); Richards v. Gonzalez, 178 So. 3d 451, 453 (Fla. 3d

DCA 2015) (referring to “[e]ach incident of stalking”) (emphasis in

original); Touhey v. Seda, 133 So. 3d 1203, 1204 (Fla. 2d DCA 2014)

(requiring “each incident of stalking” to be proved). Apparently,

this two-incident requirement was adopted based upon “guidance”

from the repeat violence statute—section 784.046, Florida

Statutes—“which defines repeat violence as ‘two incidents of

violence or stalking committed by the respondent, one of which

must have been within 6 months of the filing of the petition, which

are directed against the petitioner or the petitioner’s immediate

family member.’” Wyandt v. Voccio, 148 So. 3d 543, 544 (Fla. 2d

DCA 2014) (emphasis added); see also David v. Textor, 189 So. 3d

871, 874-75 (Fla. 4th DCA 2016) (“Section 784.0485, Florida

Statutes (2014), allows an injunction against stalking, including

cyberstalking. The statute must be read in conjunction with

section 784.046(1)(b), Florida Statutes (2014), which requires at

least two incidences of stalking to obtain an injunction.”); Leach v.

Kersey, 162 So. 3d 1104, 1106 (Fla. 2d DCA 2015) (holding that the

stalking “statute is analyzed with guidance from the statute

governing injunctions against repeat violence, section 784.046”);

Touhey, 133 So. 3d at 1203 (“Given the [stalking] statute’s recent

enaction, support for our holding comes from cases analyzing

allegations of stalking in the context of section 784.046, which

applies to injunctions for protection against repeat violence, sexual

violence, and dating violence.”) (footnote omitted).

However, nowhere in the definitions of section 784.048 is

stalking defined as a multiple of itself. Stalking is defined simply

as “willfully, maliciously, and repeatedly” following, harassing, or

cyberstalking another person—not repeatedly stalking another

person. § 784.048(2), Fla. Stat. Equally important, section

784.0485 makes no reference to the provisions of the repeat

violence statute; does not mandate “guidance” from the repeat

violence provisions; and, independent of the requirements of

section 784.046, creates a “cause of action for an injunction for

protection against stalking.” § 784.0485(1), Fla. Stat.; see M.

Kimberly Martyn, Representing Battered Spouses, Florida

Dissolution of Marriage, §21.78 (Fla. Bar CLE 12th ed. 2015)

(“Effective October 1, 2012, a fifth type of protective injunction

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exists for protection against stalking. F.S. 784.0485(1). The

availability of this injunction enables victims of stalking, including

cyberstalking, who do not qualify for domestic violence injunctions,

to seek relief without the necessity of proving the two separate

stalking offenses that are required in repeat violence injunction

proceedings.”) (emphasis added). 1 Moreover, if a stalking

1 In concluding that support for its holding came from

analyzing allegations of stalking in the context of section 784.046,

the Second District in Touhey drew inspiration from the staff

analysis of Senate Bill 950—the precursor to chapter 2012-153, §§

3, 6, Laws of Fla. (2012)—which created the cause of action for an

injunction against stalking. 133 So. 3d 1203 n.2. The analysis

stated: “The ‘statutory cause of action for an injunction for

protection against stalking . . . is similar to the current cause[] of

action for [an] injunction[] against repeat violence.’” Id. (quoting

Fla. S. Crim. Justice Comm., SB 950 (2012), Staff Analysis (Jan.

24, 2012)). We are not persuaded by the referenced staff analysis

to abandon our view that the term “stalking” as used in section

784.0485 should be read in the singular. First, we are more

persuaded by the general rule “that legislative staff analyses are

not determinative of legislative intent, but are only ‘one touchstone

of the collective legislative will[]’ . . . [and] where the [statutory]

language is clear, courts need no other aids for determining

legislative intent.” Am. Home Assur. Co. v. Plaza Materials Corp.,

908 So. 2d 360, 375-76 (Fla. 2005) (Cantero, J., dissenting)

(citations omitted). The language is clear in section 784.0485; the

words of the statute are sufficient.

Second, our reading of the full staff analysis only serves to

confirm our present conclusion, to the extent that the analysis

expressly recognized the need for an injunction specifically

directed to the act of stalking because, up to that point, as it was

acknowledged in the analysis, a person could only pursue

injunctive relief through either the domestic violence injunction

statute or the repeat violence injunction statute. And, as the staff

analysis went on to point out, the pleading requirements of each of

those statutes are more onerous, noting, in particular, that the

repeat violence injunction statute requires “two incidents of

stalking.” Fla. S. Crim. Justice Comm., SB 950 (2012), Staff

Analysis at 4 (Jan. 24, 2012). That distinction is at odds with the

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injunction requires two instances of “stalking,” then at least four

prohibited events must be proved by the person seeking the

injunction—because a single “stalking” offense requires repeated

acts of malicious following, and/or harassment, and/or

cyberstalking. See Lukacs, 982 So. 2d at 1220 (“To adopt the view

of Appellant would lead to the absurd result of requiring stalking

victims to show that they twice suffered from repeated harassment

or following before obtaining a protective injunction. Were we to

adopt such an interpretation, Appellant could have threatened or

followed Appellee four times before the circuit court could issue a

protective injunction.”) (emphasis in the original). Therefore,

based on the statutory language of section 784.0485, and the

definitions set forth in section 784.048, we hold that the injunction

provisions of section 784.0485 only require the petitioner to prove

a single incident of stalking.

Turning to the facts of this case, it was incumbent on Ms.

Copeland to prove stalking by competent, substantial evidence.

Thoma v. O’Neal, 180 So. 3d 1157, 1159 (Fla. 4th DCA 2015) (citing

McMath v. Biernacki, 776 So. 2d 1039, 1041 (Fla. 1st DCA 2001)).

As is so often true in injunction cases, the parties appeared below

without counsel. The trial court conscientiously questioned each

of the parties, in turn. There was scant relevant evidence

presented, and the parties’ testimony, at best, was confusing and

convoluted. We are sensitive to the difficulties faced by the trial

court in teasing out a thread of truth from a jumbled patchwork of

conflicting narrative. But, after having carefully reviewed the

record ourselves—mindful that we are not the factfinder—we are

compelled to conclude that the evidence was neither competent nor

substantial to carry Ms. Copeland’s burden.

While there was evidence that Mr. Pickett followed Ms.

Copeland from the Murphy gas station on Thanksgiving Day in

2016, he did so because there was an outstanding warrant for Ms.

later language quoted above and relied on in Touhey, that a cause

of action for an injunction against stalking is “similar” to a cause

of action for an injunction against repeat violence. Regardless, we

decline to define our reasoning in this case by the Senate staff

analysis.

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Copeland’s arrest for violating the injunction he had obtained

against her, and while he was following her, it is undisputed that

he was talking to the police. That was, at most, a single act of

following. 2 Furthermore, though Ms. Copeland accused Mr.

Pickett of driving past her house on multiple occasions—

presumably to prove harassment—the evidence only suggested a

single incident of his passing by, which falls short of a malicious

“course of conduct” serving “no legitimate purpose.” §

784.048(1)(a), (b) & (2), Fla. Stat.; see Leach, 162 So. 3d at 1106

(reversing injunction and holding Leach’s several messages to

Kersey by phone, through friends, and on social media, after she

2 It is clear that the trial court was troubled by the fact that

when law enforcement caused Ms. Copeland to pull over into a

parking lot, Mr. Pickett got out of his vehicle and used his cell

phone to videotape her arrest. However, for purposes of the

definition of harassment, “course of conduct” “does not include

constitutionally protected activity[.]” § 784.048(1)(b), Fla. Stat.

(2016). Even though we recognize that this protective language

will not necessarily provide immunity for every instance where an

individual videotapes an arrest—because an individual’s actions

may go beyond the scope of the constitutional protections—there

is a First Amendment right to videotape police officers while they

are conducting their official duties in public:

Every Circuit Court of Appeals to address this issue

(First, Fifth, Seventh, Ninth, and Eleventh) has held that

there is a First Amendment right to record police activity

in public. See Turner v. Lieutenant Driver, 848 F.3d 678

(5th Cir. 2017); Gericke v. Begin, 753 F.3d 1 (1st Cir.

2014); Am. Civil Liberties Union of Ill. v. Alvarez, 679

F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st

Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332

(11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436

(9th Cir. 1995). Today we join this growing consensus.

Simply put, the First Amendment protects the act of

photographing, filming, or otherwise recording police

officers conducting their official duties in public.

Fields v. City of Philadelphia, 862 F.3d 353, 355-56 (3d Cir. 2017).

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learned of an eighteen-month affair between Kersey and Leach’s

husband, could not be found to serve “‘no legitimate purpose’”);

Touhey, 133 So. 3d at 1204 (holding record lacked a sufficient basis

for the circuit court’s finding that Seda proved “inappropriate

contact” constituting stalking, where the testimony did not

establish maliciousness or that a reasonable person would have

suffered “substantial emotional distress” as a result of Touhey’s

behavior).

As a result, we hold there was no competent, substantial

evidence to support the imposition of an injunction for protection

against stalking. Consequently, the final judgment is reversed.

REVERSED.

LEWIS and RAY, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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Jason Cromey of Cromey Law, P.A., Pensacola, for Appellant.

No appearance for Appellee.

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