280 So.3d 524
Fla. Dist. Ct. App.2019Background:
- Jefferson Eugene Davis, a Gilchrist County deputy, confronted his girlfriend at work over suspected infidelity, became belligerent, damaged property, and fell to the floor during the incident.
- Davis told his sheriff and multiple fellow officers that he wanted to kill his girlfriend’s paramour — using graphic language about shooting him in the face — and said he would use his department-issued firearm kept in his car.
- The Gilchrist County Sheriff’s Office petitioned for a risk protection order (RPO) under Fla. Stat. § 790.401; the trial court issued a temporary ex parte RPO and held an evidentiary hearing within the statutory timeframe.
- After the hearing the court entered an amended final RPO finding by clear and convincing evidence that Davis posed a significant danger if armed.
- Davis appealed, arguing (1) insufficient evidence/misapplication of the statute, (2) deprivation of due process (expert sequestration and time limits), and (3) facial and as-applied constitutional challenges to the RPO statute.
- The First District Court of Appeal affirmed the RPO, rejecting the procedural and facial constitutional challenges and finding the factual findings supported by competent, substantial evidence.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency / statutory application: whether evidence met § 790.401(3)(b) clear-and-convincing requirement | Davis: threats were hyperbolic; insufficient evidence of significant danger or ability to carry out threat | Sheriff: specific, graphic threats by a trained officer with access to a gun plus prior loss of control supported risk | Affirmed — court credited officer testimony over defense expert; threats were specific, credible, and coupled with access and erratic conduct, meeting clear-and-convincing standard |
| Due process — sequestration of defense expert under § 90.616 | Davis: expert was essential and should have been exempt from sequestration | Sheriff: trial court has discretion to apply sequestration; expert still testified about his evaluation | No reversible error — sequestration was within discretion and harmless; expert testified and could be posed hypotheticals |
| Due process — time limits / denial to continue hearing | Davis: imposed time limits cut off defense and denied meaningful opportunity to present witnesses | Sheriff: court increased time, counsel elected strategic streamlining and did not move for continuance | No due process violation — court afforded extra time; counsel failed to request continuance and made strategic choices |
| Facial constitutional challenge to § 790.401 (vagueness, overbreadth, substantive due process) | Davis: statute uses vague terms ("significant danger," "relevant evidence," "mental illness") and is overbroad, infringing fundamental rights | Sheriff: statute targets a compelling state interest (preventing gun violence), includes due-process protections (14-day hearing, clear-and-convincing standard, duration limits) and is not unconstitutionally vague | Affirmed — facial challenge fails: statute can be read constitutionally, serves compelling interest, contains procedural safeguards; as-applied claim waived for failure to preserve below |
Key Cases Cited
- Pickett v. Copeland, 236 So. 3d 1142 (Fla. 1st DCA 2018) (standards of review for RPO factual findings and legal sufficiency)
- Sumners v. Thompson, 271 So. 3d 1232 (Fla. 1st DCA 2019) (contrast: reversal where threats were vague/ambiguous)
- Corrie v. Keul, 160 So. 3d 97 (Fla. 1st DCA 2015) (reversing injunction where no overt act showed ability to carry out threats)
- Hernandez v. State, 4 So. 3d 642 (Fla. 2009) (trial court discretion in determining which witnesses are "essential" under sequestration rule)
- Lamore v. State, 983 So. 2d 665 (Fla. 5th DCA 2008) (facial constitutional challenges may be raised for first time on appeal; as-applied challenges must be preserved)
- Abdool v. Bondi, 141 So. 3d 529 (Fla. 2014) (facial-review limited to statute text; challenger must show no constitutional application exists)
- Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 243 So. 3d 894 (Fla. 2018) (presumption of constitutionality; vagueness standard)
- State v. J.P., 907 So. 2d 1101 (Fla. 2004) (strict scrutiny applies when legislation impairs a fundamental right)
- Burnham v. State, 497 So. 2d 904 (Fla. 2d DCA 1986) (experts may be asked hypothetical questions that assume facts in evidence)
- Newsom v. Newsom, 221 So. 3d 1265 (Fla. 1st DCA 2017) (due-process requirement to have reasonable opportunity to address allegations at hearing)
- Lopez v. Regaldo, 257 So. 3d 550 (Fla. 3d DCA 2018) (no due-process violation where respondent failed to request continuance despite opportunity)