          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-3938
                  _____________________________

JEFFERSON EUGENE DAVIS,

    Appellant,

    v.

GILCHRIST COUNTY SHERIFF'S
OFFICE,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Gilchrist County.
Monica J. Brasington, Judge.

                        September 25, 2019


SHARRIT, MICHAEL S., ASSOCIATE JUDGE.

     In the aftermath of the infamous Parkland shooting, the
legislature enacted section 790.401, Florida Statutes (2018),
(otherwise known as “The Marjory Stoneman Douglas High School
Public Safety Act,” Chapter 2018-3, Laws of Florida). The recently
enacted “red flag” statute requires courts to proactively remove
firearms from individuals (upon petitions filed by law enforcement
agencies) who pose a significant danger to themselves or others.

     In this case of first impression, the Gilchrist County Sheriff’s
Office, believing one of its own deputies, Appellant, Jefferson
Davis had become a danger, filed a petition with the trial court,
seeking a risk protection order (RPO) and removal of his firearms.
Upon reviewing the petition, the Court below issued a temporary
ex parte RPO and, in accordance with the statute’s protocol,
scheduled an evidentiary hearing.

     Following a hearing and a determination that Appellant had
expressed homicidal ideation and an overt desire to shoot a fellow
officer, the trial court issued the amended RPO now under review.

     Appellant raises three issues on appeal. First, he argues the
trial court misapplied the statute and asserts there was
insufficient evidence to support the RPO. Second, he asserts the
trial court deprived him of due process, and third, he contends the
statute is unconstitutional. We address each issue separately
below.

                            The Statute

    The RPO statute provides in pertinent part:

         Upon notice and a hearing on the matter, if the court
    finds by clear and convincing evidence that the
    respondent poses a significant danger of causing personal
    injury to himself or herself or others by having in his or
    her custody or control, or by purchasing, possessing, or
    receiving, a firearm or any ammunition, the court must
    issue a risk protection order for a period that it deems
    appropriate, up to and including but not exceeding 12
    months.

    § 790.401(3)(b), Fla. Stat.


                         Factual Findings

     The events underlying the RPO and factual findings made by
the trial court may be summarized as follows:

     The Appellant and his long-time girlfriend were both
employed as Gilchrist County Sheriff’s Officers. Suspicious of
infidelity and an ongoing affair with another officer, the Appellant,
while off-duty, confronted his girlfriend at her assigned duty
station. The Appellant became belligerent, exhibited a hostile
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demeanor and threatened a bystander-fellow officer who
attempted to intervene. He punched and damaged a solid wood
door and a filing cabinet, and inexplicably fell to the floor. In a
moment of apparent reflection, the Appellant reached out to his
supervisor (the Gilchrist County Sheriff) via text message,
requested his help and warned that “something bad was going to
happen.” Thereafter, in a private meeting, the Appellant told the
Sheriff he wanted to kill his girlfriend’s paramour. He stated he
“want[ed] to shoot him in the face, eat his food, and wait for [law
enforcement] to pick me up.’’ Upon further inquiry, Appellant told
the Sheriff he would utilize his police issued gun located in his car.
Shortly thereafter, he repeated the same or similar words to two
other fellow officers. Ultimately, the Appellant was taken to a
medical facility and underwent a mental health evaluation. He
was thereafter released having been deemed not to be at risk for
further violence.

                       Risk Protection Order

     In her amended final order, the judge found by “clear and
convincing” evidence the Appellant posed a significant danger of
causing personal injury to himself or others by having a firearm in
his custody or control. On a standard form order the judge
specifically “checked off” and annotated the following statutory
factors:

    · The Respondent engaged in a recent act or threat of
      violence against himself or others;

    · The Respondent engaged in an act or threat of violence,
      including but not limited to acts or threats of violence
      against himself or others within the past 12 months;

    · The Respondent has used, or threatened to use against
      himself or others any weapons (firearm).

     This appeal presents mixed questions of fact and law. The
trial judge’s findings of fact are afforded a deferential abuse of
discretion standard of review, and will not be disturbed if
supported by competent and substantial evidence. The application
of the RPO statute to the facts and the legal sufficiency of the
                                  3
evidence are reviewed de novo. Pickett v. Copeland, 236 So. 3d
1142, 1144 (Fla. 1st DCA 2018). Here, the findings are supported
by the record.

     Among the evidence presented, the trial judge necessarily
weighed the opinion testimony of Appellant’s expert
neuropsychologist against the testimony of his fellow Sheriffs’
officers. In her amended RPO order, the judge afforded “little
weight” to the expert opinion that Appellant’s reaction to an
extreme stressor—i.e. learning of his girlfriend’s infidelity—was
“probably relatively normal.”

      When evaluating hostile words underlying petitions for
protection, we recognize trial judges are often faced with the
difficult task of differentiating between facetious or hyperbolic
declarations meant to “blow off steam”, and those manifesting a
genuine threat. As the trier of fact, the court below was in the best
position to weigh the demeanor and credibility of the witnesses. It
was within the trial judge’s province to discount the expert’s
opinions and credit the testimony of fellow sheriff’s officers; and
favorably assess their sincerity and motives. The record contains
their testimony describing Appellant having expressed a plan to
“shoot him [the paramour] in the head . . . between the eyes,” with
the handgun located in his car. Fellow officers characterized his
behavior as irrational, aberrant and out of character. There was a
belief among fellow officers he had experienced a “break down” and
that he was in need of a mandatory mental health intervention.
Furthermore, the judge was able to evaluate the explanations and
admissions made by the Appellant-Respondent himself.

     Although it is possible the Appellant’s hostile words amounted
to no more than hyperbole and hollow threats, we find the record
supports a more ominous conclusion. The threats were specific and
graphic and made by someone with the wherewithal to carry them
out. He was in a position of authority with advanced weapons
training and ready access to firearms. In addition, the hostile
words were preceded by loss of self-control, open aggression and
property damage within a police facility. The evidence is clear and
convincing, and this case is easily contrasted with others involving
only vague or ambiguous overtures.            See e.g., Sumners v.
Thompson, 271 So. 3d 1232, 1234 (Fla. 1st DCA 2019); Corrie v.
                                 4
Keul, 160 So. 3d 97, 99 (Fla. 1st DCA 2015) (reversing injunction
where there was no evidence of an overt act showing ability to
carry out threats). Considering the array of factors and other
provisions within the statute, we hold that although trial courts
should carefully consider, inter alia, evidence of serious or
recurring mental illness, (see Florida Statute section
790.401(3)(c)3), a lack thereof is not dispositive and does not
preclude an RPO. The RPO statute contemplates “red flag”
situations   where     a    volatile   individual     demonstrates
mental/emotional instability through threatening and erratic
behavior. Such a person need not necessarily have been formally
diagnosed with a serious or recurring psychosis. The record below
reasonably justifies a finding that the Appellant was at risk for
committing a violent crime of passion and posed a significant
danger. We find no error in the trial court’s conclusion.

                           Due Process

    Appellant asserts two instances of denied due process. We
address each in turn.

                       Rule of Sequestration

     The trial judge applied section 90.616, Florida Statutes (“Rule
of    Sequestration”)      to    Appellant’s     expert     witness,
neuropsychologist, Jason Demery, Ph.D., and required him to
remain outside the courtroom prior to testifying. Appellant, citing
section 90.616(2)(c), asserted his expert was essential to the
presentation of his case and should have been permitted to remain
in the courtroom prior to giving testimony.

    Trial courts are afforded wide discretion in determining which
witnesses are “essential” and exempt from the Rule. Hernandez v.
State, 4 So. 3d 642, 662-663 (Fla. 2009). Under the circumstances,
we do not find an abuse of discretion. The subject matter of the
expert’s testimony pertained to the Appellant’s mental health
evaluation.      Although compromised mental health is an
enumerated factor to be considered by the trial judge, it is not a
requisite finding for purposes of issuing an RPO. Dr. Demery was
properly permitted to present opinion testimony based on his first-
hand clinical evaluation of Appellant. Moreover, if counsel for
                                 5
either party wanted Dr. Demery to consider additional information
or testimony from other witnesses, they could have provided it by
asking him to make certain assumptions. In the course of
expressing opinions at trial, experts are routinely provided
essential facts by way of hypothetical questions. Lawyers for
either party may ask an expert to assume any relevant fact
supported by the evidence (or any fact which in good faith is
expected to become part of the evidence). See Burnham v. State,
497 So. 2d 904, 906 (Fla. 2nd DCA 1986), review denied, 504 So. 2d
766 (Fla. 1987); and see generally, C. Ehrhardt, Florida Evidence
§ 704.2 (2019 Ed.). Although expert witnesses are often exempted
from the Rule of Sequestration, in light of the foregoing, any
arguable misstep in applying the Rule to Dr. Demery was
harmless.


                         Time Limitation

     The Appellant contends he was unduly constrained in the
presentation of his defense and that the trial court’s imposition of
time limits on the hearing was a denial of due process. The original
time allotment was two hours. When, during the course of the
proceedings, it became clear more time would be needed the trial
judge offered an additional hour (the judge asked Appellant’s trial
counsel if that is what he wanted to do; and he said it was). In
further discussion with the judge, Appellant’s attorney appears to
have strategically streamlined his witnesses and presentation (i.e.,
“I probably can elicit more from her and skip him”). Appellant’s
counsel decided to focus on his expert witness’ testimony and
thereafter announced: “Nothing further, your Honor.” The trial
judge then ended the hearing after having added an additional
hour and sixteen minutes to the originally scheduled hearing time;
and announced her intent to “e-mail an order by the end of the
day.” Appellant’s counsel did not then, nor at any time request a
continuance. Appellant’s attorney later asserted he was laboring
under the mistaken belief that the court would be e-mailing an
order scheduling a continuation of the hearing in light of the fact
he had remaining witnesses and argument to offer. Instead, the
trial court issued the final order now being appealed. Contrary to
counsel’s interpretation, the judge’s closing words indicating she

                                 6
would consider all the testimony and issue an order “tell[ing] you
what I’m going to do,” imply finality.

     Although due process requires each party have a reasonable
opportunity to prove or disprove allegations, Newsom v. Newsom,
221 So. 3d 1265, 1266 (Fla. 1st DCA 2017) (error to deny
respondent opportunity to be present at hearing and address
allegations against him), once trial proceedings have commenced,
it becomes incumbent upon counsel to make a clear record and
unequivocally request a continuance if needed. See Lopez v.
Regaldo, 257 So. 3d 550, 555-56 (Fla. 3rd DCA 2018) (no due
process violation where respondent, though not properly served
notice, was present and attempted to address allegations, yet
failed to request a continuance) (distinguishing, Vaught v. Vaught,
189 So. 3d 332, 334 (Fla. 4th DCA 2016) (finding due process
violation where respondent demonstrated good cause for
continuance and judge denied motion for same)). The court below
was not presented with a definitive motion for continuance upon
which to rule. Accordingly, we find no abuse of discretion or denial
of due process.

                     Constitutional Challenge

     Appellant challenges the RPO statute’s constitutionality (for
the first time on appeal). He asserts it is facially unconstitutional
because certain key terms are vague; it violates substantive due
process; and is overbroad. He further argues the statute is
unconstitutional as applied to him.

     “A constitutional challenge to the facial validity of a statute
can be presented for the first time on appeal under the
“fundamental error exception,” whereas a dispute concerning a
constitutional application of a statute to a particular set of acts
must be raised at the trial level.” Lamore v. State, 983 So. 2d 665,
668 (Fla. 5th DCA 2008) (quoting Trushin v. State, 425 So. 2d 1126,
1129-30 (Fla. 1982)). Because the “as applied” constitutional
argument was not preserved below, we find that issue to be waived
and decline further consideration.

    When reviewing a statute or ordinance that impairs the
exercise of a fundamental right, the court must apply a strict
                                 7
scrutiny test to determine whether the legislation is written to
address a specific and compelling state interest. State v. J.P., 907
So. 2d 1101, 1109 (Fla. 2004). Here, the prevalence of public
shootings, and the need to thwart the mayhem and carnage
contemplated by would-be perpetrators does represent an urgent
and compelling state interest.

     When considering a facial challenge, our review is necessarily
limited. Abdool v. Bondi, 141 So. 3d 529, 538 (Fla. 2014). We
consider only the text of the statute; not its specific application to
a particular set of circumstances. Id. To succeed on a facial
challenge, the Appellant has a high burden and must demonstrate
no set of circumstances exists in which the statute can be
considered constitutionally valid. Id. “Generally, legislative acts
are afforded a presumption of constitutionality and we will
construe the challenged legislation to effect a constitutional
outcome when possible.” Fraternal Order of Police, Miami Lodge
20 v. City of Miami, 243 So. 3d 894, 897 (Fla. 2018); Fla. Dep’t of
Revenue v. Howard, 916 So. 2d 640, 642 (Fla. 2005).

     Appellant argues the RPO statute is void for vagueness
because it leaves too much to the discretion of the trial court and
law enforcement in determining what constitutes “significant
danger,” “relevant evidence,” and “mental illness.” “A statute is
void for vagueness when persons of common intelligence must
guess as to its meaning and differ as to its application . . . or if it
lends itself to arbitrary enforcement at an officer’s discretion.”
Fraternal Order of Police, Miami Lodge 20, 243 So. 3d at 897. “The
legislature’s failure to define a statutory term does not in and of
itself render a provision unconstitutionally vague.” Id. (quoting
State v. Hagan, 387 So. 2d 943, 945 (Fla. 1980)).

     In our view, there is nothing inherently vague about the terms
Appellant would have us scrutinize. We interpret the word
“significant” (as in “significant danger”) in a manner consistent
with standard dictionary synonyms such as “noteworthy, worthy
of attention and consequential; as opposed to “trivial.”
“Significant” is no more or less “vague” than the word “imminent”
found in the domestic violence injunction statute (§ 741.30, Fla.
Stat). The same is true of the commonly used word, “relevant”.

                                  8
     Appellant also argues the RPO statute is impermissibly broad
and vague because, unlike the domestic violence injunction
statute, it is “untethered to any central idea, subject, or danger.”
Appellant theorizes the list of evidence a court is permitted to
consider is impermissibly broader in scope and includes more
categories, by comparison, than the purportedly narrower list
applicable in domestic violence injunction cases.          We find
Appellant’s argument unpersuasive. The notion that no central
idea or danger underlies the purpose of the RPO statute is belied
by the Legislature’s own explanation for the law:

    The Legislature finds there is a need to comprehensively
    address the crisis of gun violence, including but not
    limited to, gun violence on school campuses. The
    Legislature intends to address this crisis by providing
    law enforcement and the courts with the tools to enhance
    public safety by temporarily restricting firearm
    possession by a person who is undergoing a mental health
    crisis and when there is evidence of a threat of violence,
    and by promoting school safety and enhanced
    coordination between education and law enforcement
    entities at the state and local level.

Ch. 2018-3, Laws of Fla. § 2.

     Appellant further argues the statute is unconstitutional
because it violates substantive due process and can potentially be
used to punish entirely innocent activity. At the outset, we note
the statute’s purpose is not punitive, but rather preventative.
Furthermore, of the fifteen non-exclusive enumerated factors in
the statute that concern “activities”, the only ones that may be
characterized as “entirely innocent” are numbers three (evidence
of being seriously mentally ill), twelve (in part) (abuse of alcohol);
and thirteen (evidence of recent acquisition of firearms or
ammunition). § 790.401(3)(c)3, 12, and 13, Fla. Stat. Importantly,
these are simply factors, among many a court may consider (none
of which were relied upon in this case) before issuing an RPO.

    The statute also requires a hearing within fourteen days of an
RPO petition being filed, thus affording a respondent due process
and a prompt opportunity to resist a final order. § 790.401(3)(a),
                                  9
Fla. Stat. Moreover, the statute incorporates an added due process
safeguard by requiring proponents to meet the heightened “clear
and convincing” burden of proof standard.               Compare §
790.401(3)(b), Fla. Stat. with e.g. Wash. Rev. Code. § 7.94.040(2)
(requiring a showing of significant danger by the less stringent
“preponderance of evidence” standard). Furthermore, the duration
of the RPO may not exceed twelve months, § 790.401(3)(b), and the
statute contains a mechanism whereby the respondent can request
early termination of the order. § 790.401(6), Fla. Stat. Finally, the
statute clearly requires the listed factors be considered within a
specific context—the threat of gun violence. § 790.401(3)(b), Fla.
Stat.

     Our essential task is to focus on “the text of the statute, not a
specific application; and “the challenger must demonstrate that no
set of circumstances exists in which it can be constitutionally
valid.” Fraternal Order of Police, Miami Lodge 20, 243 So. 3d at
897. Appellant has not so demonstrated, and the statute’s
constitutional integrity must therefore be upheld.

                             Conclusion

     The trial court’s findings of fact are supported by competent
and substantial evidence and the RPO statute was properly
applied. On the record presented, we uphold the statute’s
constitutionality, and further reject the asserted due process
violations.

    AFFIRMED.

RAY, C.J., and LEWIS, * J., concur.




    *  Judge Lewis was substituted for an original panel member
in this proceeding after oral argument. He has viewed the digital
recording of oral argument.

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                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Robert L. Case of Stovash, Case & Tingley, P.A., Orlando; Stephen
K. Miller of Law Offices of Stephen K. Miller, P.A., Gainesville, for
Appellant.

Lindsey B. Lander, Trenton, for Appellee.




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