Full Opinion

IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA June 5, 2020 D.T.M., ) ) Appellant, ) ) v. ) Case No. 2D18-4631 ) GRADY C. JUDD, Sheriff of Polk ) County, ) ) Appellee. ) ________________________________ ) BY ORDER OF THE COURT: Appellant's Motion for Issuance of Written Opinion dated March 27, 2020, is granted. The prior opinion dated March 13, 2020, is withdrawn and the attached opinion is issued in its place. I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER. MARY ELIZABETH KUENZEL, CLERK NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT D.T.M., ) ) Appellant, ) ) v. ) Case No. 2D18-4631 ) GRADY C. JUDD, Sheriff of Polk ) County, ) ) Appellee. ) ________________________________ ) Opinion filed June 5, 2020. Appeal from the Circuit Court for Polk County; Michelle O. Pincket, Judge. Kendra E. Parris of Parris Law, P.A., Orlando, for Appellant. Mario J. Cabrera of Polk County Sheriff's Office, Winter Haven, for Appellee. PER CURIAM. After determining that minor child D.T.M. posed a significant danger to himself or others by having custody or control of a firearm or ammunition, the circuit court entered a Risk Protection Order ("RPO") pursuant to section 790.401, Florida Statutes (2018), requiring that D.T.M. surrender any firearms in his custody, control, or possession. On this appeal from the entry of that order and of the order denying him declaratory relief, D.T.M. challenges the facial constitutionality of section 790.401 on grounds that it is void for vagueness, unlawfully delegates legislative authority to the executive and judicial branches, and unlawfully delegates prosecutorial authority to law enforcement agencies and officers. Concluding that none of his arguments is persuasive, we affirm. Because this appeal raises only facial challenges to section 790.401, only a brief summary of the facts is warranted. D.T.M., an autistic sixteen-year-old, became agitated at school and made specific verbal threats to shoot his classmates. Thereafter, the Polk County Sheriff petitioned for an RPO seeking to confiscate two long guns belonging to D.T.M.'s parents.1 D.T.M. unsuccessfully sought to have the trial court declare section 790.401 unconstitutional both facially and as applied, and after an evidentiary hearing, the court found, by clear and convincing evidence, that D.T.M. "pose[d] a significant danger of causing personal injury to himself and others by having in his custody or control, or by purchasing, possessing, or receiving a firearm or any ammunition." Accordingly, the court granted the Sheriff's petition and ordered D.T.M. to surrender all firearms and ammunition in his custody, control, or possession. Section 790.401 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 1By that point, D.T.M.'s parents had voluntarily removed the guns from their residence. -2- period that it deems appropriate, up to and including but not exceeding 12 months. § 790.401(3)(b), Fla. Stat. The statute goes on to provide a non-exhaustive list of fifteen factors that a trial court may consider "[i]n determining whether grounds for a risk protection order exist" but also invites the court to consider "any relevant evidence." § 790.401(3)(c). As he argued below, D.T.M. first argues that section 790.401 is unconstitutionally vague on its face because what constitutes a "significant danger" is undefined and inherently ambiguous and the criteria to be considered in assessing the significance of the danger are "vague and open-ended." The First District has already rejected this challenge to section 790.401 based on the plain meaning of its terms: 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. [(2018)]). The same is true of the commonly used word, "relevant." Davis v. Gilchrist Cty. Sheriff's Office, 280 So. 3d 524, 532 (Fla. 1st DCA 2019). The court further concluded that the "significant danger" analysis is necessarily cabined by the explicit purpose of section 790.401: 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 -3- safety and enhanced coordination between education and law enforcement entities at the state and local level. See Davis, 280 So. 3d at 532 (quoting Ch. 2018-3, Laws of Fla. § 2). We agree with the First District's reasoning, noting that the United States Supreme Court has also rejected vagueness challenges in similar contexts. In Proffitt v. Florida, 428 U.S. 242, 257 (1976), for example, the Court held that phrases like "substantially impaired," "relatively minor," and "significant history of prior criminal activity," as then set forth in Florida's death penalty statute, were not unconstitutionally vague. The Court explained: While these questions and decisions may be hard, they require no more line-drawing than is commonly required of a factfinder in a lawsuit. . . . While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman[ v. Georgia, 408 U.S. 238 (1972),] are satisfied [i.e., the procedure withstands Eighth Amendment scrutiny] when the sentencing authority's discretion is guided and channeled by requiring examination of specific factors that argue in favor of or aga[in]st imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition. Proffitt, 428 U.S. at 257-58. In a different context but equally instructive, the Supreme Court in Johnson v. United States, 135 S. Ct. 2551, 2561 (2015), stated, "As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct; 'the law is full of instances where a man's fate depends on his estimating rightly . . . some matter of degree.' " (quoting Nash v. United States, 229 U.S. 373, 377 (1913)). The Court clarified that the key to that statement is that the standard must be applied to "real-world conduct." See -4- id. (observing that the laws in which such language has been upheld "require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion"). That is exactly the type of analysis that section 790.401 contemplates. See § 790.401(3)(c). Accordingly, D.T.M.'s vagueness challenge affords him no relief. Nor do his two other challenges, which he failed to timely raise in the trial court but we may address nonetheless. See Moosbrugger v. State, 461 So. 2d 1033, 1034 (Fla. 2d DCA 1985) ("[T]he facial validity of a statute may be raised for the first time on appeal." (citing Trushin v. State, 425 So. 2d 1126 (Fla. 1983))), approved, 472 So. 2d 742 (Fla. 1985). D.T.M.'s argument that section 790.401 impermissibly delegates legislative authority to the executive and the judiciary in violation of article II, section 3, of the Florida Constitution rises or falls with his vagueness argument, which fails for the reasons above. His argument that section 790.401 also impermissibly delegates prosecutorial authority to law enforcement officers and agencies in violation of article II, section 3, likewise lacks merit. As D.T.M. recognizes, the power to regulate public safety arises out of police powers traditionally reserved to "the states" as opposed to the federal government. See, e.g., Hill v. Colorado, 530 U.S. 703, 715 (2000) ("It is a traditional exercise of the States' 'police powers to protect the health and safety of their citizens.' " (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996))). But from that it does not follow that in any proceeding implicating public safety concerns, "the State" is the real party in interest and, therefore, the state attorney is the only entity with litigating authority. None of the cases on which D.T.M. relies says otherwise. We therefore affirm the final orders of the trial court. -5- Affirmed. KHOUZAM, C.J., and NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur. -6-