Swearingen v. Pretzer

310 So.3d 1084

Rick SWEARINGEN, individually and in his official capacity, and Florida Department of Law Enforcement, Appellants,

v.Christopher PRETZER, an individual; Mark L. Wood, an individual; Richard A. Barsky, an individual; and Florida Carry, Inc., a Florida not-for-profit corporation, Appellees.

No. 1D19-1992

District Court of Appeal of Florida, First District.

December 21, 2020

Rehearing Denied January 29, 2021

Robert J. Sniffen and Jeffrey D. Slanker of Sniffen & Spellman, P.A., Tallahassee, for Appellants.

Noel Howard Sohn Flasterstein of Noel H. Flasterstein, P.A., Fort Lauderdale, and Eric J. Friday of Kingry & Friday, PLLC, Jacksonville, for Appellees.

Makar, J.

To protect the privacy of lawful gun-owners, Florida statutory law requires that specified records of the Department of Law Enforcement—the state agency tasked with expeditiously processing applications for firearm purchases and conducting criminal history background checks—are to be destroyed within forty-eight hours upon the Department's communication to a licensed firearms seller of its approval (or nonapproval) of the potential buyer's background. § 790.065(4)(a), Fla. Stat. (2020). For lack of a better phrase, subsection (4)(a) will be referred to as the "destruction statute."

The Department is under strict statutory time limits: it must process firearms applications without delay, which it failed to do as to the plaintiffs in this case. See generally § 790.065(2)(c), Fla. Stat. (2020) (specifying timeframes for Department actions). Those plaintiffs, whose privacy interests are protected by the destruction statute, filed suit against the Department seeking redress for the delays in the processing of their applications. They simultaneously filed an emergency motion, which the trial judge granted, that temporarily prevented the Department from destroying the records that would otherwise be subject to the destruction statute. The order, temporarily preserving the records as potential evidence in this litigation, is what's at issue in this appeal.

Preservation orders, such as the one at issue, are a common and accepted exercise of judicial power that safeguard the integrity of the judicial process, whose central feature is evidence-based fact-finding. It is universally recognized that this power is necessary to preserve public trust in the judicial process, which would be undermined if potentially relevant evidence is destroyed without any judicial review. See Silvestri v. Gen. Motors Corp ., 271 F.3d 583, 590 (4th Cir. 2001) (judicial power to prevent or sanction destruction of evidence based on "the need to preserve the integrity of the judicial process in order to retain confidence that the process works to uncover the truth"). As one court has noted:

Aside perhaps from perjury, no act serves to threaten the integrity of the judicial process more than the spoliation of evidence. Our adversarial process is designed to tolerate human failings—erring judges can be reversed, uncooperative counsel can be shepherded, and recalcitrant witnesses compelled to testify. But, when critical documents go missing, judges and litigants alike descend into a world of ad hocery and half measures—and our civil justice system suffers.

United Med. Supply Co., Inc. v. United States , 77 Fed. Cl. 257, 258–59 (2007). Temporarily preventing the destruction of potentially relevant evidence is an exceptionally modest use of judicial power that protects the integrity of the adjudicative process, affords due process to the party seeking preservation of the evidence, and bolsters public confidence in the court system. It promotes accuracy in fact-finding by ensuring that relevant information is not destroyed; and it deters efforts to destroy such information, penalizing it in egregious cases.

All federal courts, including those in Florida, uniformly recognize a trial court's authority to adjudicate motions for preservation of evidence, which are the accepted and routine procedural method of doing so. See, e.g. , Arkin v. Gracey-Danna, Inc. , No. 8:16-CV-1717-T-35AAS, 2016 WL 3959611, at *1 (M.D. Fla. July 22, 2016) ("A federal court may issue preservation orders as part of its inherent authority to manage its own proceedings."); Zaccone v. Ford Motor Co. , No. 2:15-CV-287-FTM-38CM, 2016 WL 2744837, at *1 (M.D. Fla. May 11, 2016) (issuing preservation order, noting that federal courts have implied/inherent authority to issue preservation orders); Robinson v. Gielow , No. 3:14CV223/LAC/EMT, 2015 WL 4459880, at *3 (N.D. Fla. July 21, 2015) (same, but denying preservation order where danger of destruction not shown); Disney Enters., Inc. v. Hotfile Corp. , No. 11-20427-CIV-JORDAN/MCALILEY, 2011 WL 13100321, at *2 (S.D. Fla. Apr. 19, 2011) (same); Angrignon v. KLI, Inc. , No. 08-81218-CIV-COHN/SELTZER, 2009 WL 10666946, at *1 (S.D. Fla. Apr. 13, 2009) (same). State courts recognize this authority as well. See, e.g. , People v. Wartena , 156 P.3d 469, 473 (Colo. 2007) ("Acting to avoid or mitigate a failure to preserve evidence, the court may order that evidence cannot be destroyed, or may permit the consumptive testing of evidence.").

Given this background, the Department in this appeal does not contest the power of Florida courts to issue preservation orders¹ or make an issue of the administrative process for issuance of such orders. It makes no argument that the order temporarily preventing the destruction of potential evidence is procedurally improper or fails to meet standards for orders of this type. Instead, it makes only two limited arguments, one legal and one policy based.

First, it asserts that its retention of the records subjects it to penalties for the commission of a felony, but that argument overlooks that the statutory basis for criminal liability requires that the Department's action must be done "intentionally and maliciously." § 790.065(4)(d), Fla. Stat. ("Any officer or employee, or former officer or employee of the Department of Law Enforcement or law enforcement agency who intentionally and maliciously violates the provisions of this subsection commits a felony of the third degree ...."). The Department's compliance with the trial court's order, however, is neither an intentional nor malicious act—the Department is merely doing what the trial court has ordered. Compliance with a court order isn't an intentional and malicious act for purposes of statutory liability.

Second, the Department says that it must preserve records of all potential plaintiffs, which it says is burdensome. But the preservation order only relates to the handful of current plaintiffs in this lawsuit, making the Department's argument inapt. Whether the preservation of other electronic records might prove burdensome were a class action pursued and certified is for another day. Because neither of the Department's arguments has merit, affirmance is in order.

On this record, the trial judge acted well within his discretion by temporarily preventing the destruction of potentially relevant evidence; preservation orders of this type are recognized as proper for a number of pragmatic reasons that apply here.

First of all, the records sought are potentially relevant to the plaintiffs’ claims because they may show the basis for the Department's delays or the mindset or intent of the staff or officials involved in the decision-making process. The applicable enforcement statute, which imposes liability on governmental entities for non-compliance, also includes fines (up to $5,000) on governmental officials where "a violation was knowing and willful ," thereby supporting an order temporarily preserving records that may establish knowing and willful violations. § 790.33(3)(c), Fla. Stat. (2020) (emphasis added). It is important for the plaintiffs to establish that delays occurred in the processing of their applications; it is equally important that they be able to determine why delays occurred and whether violations of statutory deadlines were knowing and willful (e.g., date stamps that show complete inactivity on the file, received records not acted upon, comments or annotations in the files). Destruction of potentially relevant records thwarts this line of inquiry.

Next, had the trial court denied the plaintiffs’ emergency request, the consequences would be immediate and irreparable. Records would have been destroyed that are potentially relevant to the plaintiffs’ claims without anyone, including a judicial officer, having seen and reviewed them to determine their relevance. On this point, the plaintiffs can't be faulted for not knowing with precision whether the records of their applications will prove to be relevant; after all, they haven't seen them and don't know what they might reveal.

Indeed, neither the trial judge nor this court has seen the records subject to the preservation order (the records must be preserved, but they have not yet been disclosed at this point).

Notably, if the records at issue must be destroyed in 48 hours as the statute specifies—no matter the circumstances—bizarre results are possible. Suppose the trial judge, in the first 24 hours after the Department's approval of a plaintiff's background, was able to review the records and deem them relevant; must they be snatched from her hands and destroyed 24 hours later? What if the records show a pattern of willfully denying approvals to a racial minority or residents in a rural, predominantly Republican area of a Panhandle county; must they too be razed before those persons adversely affected can seek justice? Is a court powerless to prevent their destruction based on strict construction principles? Of course not.

In addition, the temporary order does no harm to the legislative purpose of the destruction statute. The Legislature specified one core reason for the statute's existence: to protect the privacy of firearms applicants by prohibiting a government-controlled list or registry of gun owners. § 790.335(1)(a)-(b), Fla....