Filing # E-Filed 06/16/ :59:11 AM

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1 Filing # E-Filed 06/16/ :59:11 AM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR THE PALM BEACH COUNTY, FLORIDA Case No DR003400XXXXSB LOIS B. POPE, and Petitioner, PAUL D. POPE Respondent. / RENEWED VERIFIED MOTION FOR MODIFICATION OF INJUNCTION ALLOWING POPE TO EXERCISE HIS CONSTITUTIONAL RIGHT TO POSSESS A FIREARM UNDER THE SECOND AMENDMENT OF THE UNITED STATES CONSTITUTION Respondent, PAUL D. POPE, by and through his undersigned counsel, hereby moves this honorable Court for an order modifying the Final Judgment of Protection Against Stalking Allowing Pope to Exercise His Constitutional Right to Possess a Firearm Under the Second Amendment of the United States Constitution and as grounds thereof states as follows: Case History and Background 1. Respondent is the biological, adult son of Petitioner, LOIS B. POPE, and the late Generoso Paul Pope, Jr., founder of the National Enquirer. 2. Sadly, the history and background of this action could easily be mistaken for an article in the National Enquirer. It is a real life, made for television tragedy of a wealthy and high-profile family torn apart by money and power.

2 3. Since the death of his father, Ms. Pope and Paul Pope have endured years of legal battles, with each party having been actively and aggressively engaged in the following litigation: a. In Re Estate of Generoso Pope, Jr., In the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Case No WO001337XXWOIB ( Probate Litigation ). b. Lois B. Pope v. Paul D. Pope, In the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Case No CA010161XXXXMB ( Promissory Note Litigation ). c. In Re Generoso Pope, Jr. Trust dated 3/14/83, In the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Case No CP001889XXXXMB ( Marital Trust Litigation ).. d. Lois B. Pope v. Paul D. Pope, In the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Case No DR003400XXXXSB ( Civil Injunction Litigation ). e. State of Florida v. Paul D. Pope, In the Criminal Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Case No MM006922AXXXMB ( Criminal Injunction Litigation ). f. Paul D. Pope v. Lois Pope, In the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Case No CA007324XXXXMB ( Intentional Infliction of Emotional Distress Litigation ).

3 4. The constant underlying theme of each and every action between the parties is money and has always been money; it has never been threats of physical violence or bodily harm. 5. In early 2013 Paul Pope was investigating possible discrepancies concerning the assets of his father s estate and investigating various family secrets in preparation of an upcoming tell-all book. Ultimately, this led to Paul Pope s wrongful arrest, which has never been substantiated to this very day. For example, what evidence (other than hearsay) did the authorities have to issue a warrant for Paul Pope s arrest and how was it possible to have a warrant issued so quickly and based only on hearsay? 6. Specifically, in February and March 2013, Paul Pope contacted Peter Peterson, who was a close financial advisor to Generoso Pope from 1979 to 1988, in an effort to gather family and business information and documents for inclusion in Paul Pope s archive of family history known as the Pope Media Center. Paul Pope informed Mr. Peterson that he wanted the Pope Media Center complete as possible because he would be utilizing the information for his next book. 7. Although Ms. Pope had already freely and willingly given Paul Pope recorded interviews for use in his upcoming book, she attempted to withdraw her permission for release of the information and wanted to stop the book, stop the disclosure of Pope family secrets. 8. Shortly after Paul Pope s letters to Mr. Peterson, Ms. Pope filed a police report alleging on-going harassment and emotional distress. Ms. Pope alleges in those reports she was threatened and harassed by her son for more than 25 years, yet she never once filed a police report or attempted to obtain an injunction until 2013.

4 9. Pursuant to her testimony at the evidentiary hearing in this matter, Paul Pope allegedly harassed Ms. Pope by threatening to disclose family secrets. Ms. Pope never once made any allegations of physical abuse or threats of bodily harm by Paul Pope, and further testified that Paul Pope never hit her. The transcript of this hearing, page 50, will be provided in camera. 10. Based on her self-serving police report, Paul Pope was arrested for stalking under Fla. Stat (2) and Ms. Pope filed a Petition for Injunction for Protection against Stalking. In exchange for the State of Florida dropping criminal charges against him and in an effort to resolve certain family matters, Paul Pope voluntarily agreed to the requested injunction. 11. On June 17, 2013, this Court entered a consent Final Judgment of Injunction for Protection Against Stalking ( Injunction ). In connection therewith, Mr. Pope was enjoined from use or possession of a firearm or ammunition indefinitely. See, Injunction 3(b).. The Injunction, however, provided: After nine months from the date of this injunction, if Respondent has not been involved in any violations of this injunction or any other unlawful acts, other than child support issues, and if Respondent applies to amend the injunction to delete provision 3(b), Petitioner shall not object. 12. In compliance with the Injunction, Paul Pope voluntarily turned over all of his firearms and ammunition. 13. Paul Pope has not violated the Injunction nor committed any unlawful act since entry of the Injunction. 14. In fact, Paul Pope remains concerned that a Kidnapping and Ransom Policy of Insurance was issued or applied for in connection with his children. Thus, part of the relief requested herein is to allow Paul Pope to maintain a firearm for protection just like any other American Citizen is permitted to do under the U.S. Constitution.

5 Requested Relief 15. Paul Pope requests that the previously entered Injunction be modified to remove the prohibition against use and possession of firearms and ammunition, which violates Paul Pope s rights under the U.S. Constitution and the Florida Constitution. See, U.S. Const. Amend. II and Art. I, 21, Fla. Const. of It has been approximately two years since the accusation him of harassment, and there have been no allegations whatsoever that Paul Pope is in violation of the Injunction or has since harassed his mother. It has been approximately two years since Ms. Pope told this Court she was fearful Paul Pope s intent to write tell-all book would inexplicably escalate into "erratic and violent behavior toward her. Id.; transcript will be provided in camera. Even assuming a book was to be written or will be written, this Injunction cannot further be utilized as means to restrain Paul Pope, an American Citizen, from exercising his constitutional right to freedom of speech as provided under the First Amendment. The continuing use of this Injunction to both restrain speech and prevent Paul Pope from exercising his Second Amendment right to possess firearm is simply a violation of Mr. Pope s constitutional due process. 16. Fears that resulted in the Injunction were unfounded and never materialized. Paul Pope did not threaten, intend or cause bodily harm to Ms. Pope. Paul Pope has not made any attempts to contact, either directly or indirectly, Ms. Pope. Exercising one s right to freedom of speech by publishing a book cannot be broadly interpreted in an effort to cast a net over those communications by simply deeming them indirect communications. Again, doing so is an unreasonable restraint on speech and a violation of Paul Pope s constitutional rights. It is time to amend the Injunction and allow Paul Pope to exercise his constitutionally protected right to bear

6 arms. Money and power should not and will not take precedence over an American Citizen s Constitutional Rights. Legal Argument 17. The Second Amendment of the Constitution provides: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. 18. The Second Amendment protects an individual s right to keep and bear arms and is fully applicable to the states and municipalities. See, District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742, 750 (2010). Specifically, the historical background of the Second Amendment guarantees the pre-existing individual right to possess and carry weapons in case of confrontation. Id. 19. The Supreme Court confirmed that the Second Amendment elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home. Heller, 554 U.S. at In McDonald, the Supreme Court held that the Second Amendment was applicable to the States by incorporation into the Fourteenth Amendment. McDonald, 561 U.S. at 750. The McDonald Court further explained that the individual right to keep and bear arms is fundamental. Id. 21. Because an individual s gun rights are not absolute, the Federal Courts have adopted the following two-prong test to evaluate whether a regulation or law violates the Second Amendment: (1) the court asks whether the challenged law burdens conduct protected by the Second Amendment, and (2) if so, what level of scrutiny should be applied. United States v. Chovan, 735 F.3d 1127, 1136 (9 th Cir. 2013).

7 22. Here, the Injunction prohibiting Paul Pope s right to use and possess firearms and ammunition clearly burdens his Second Amendment rights. Thus, the question becomes what level of scrutiny should be applied in evaluating Florida s firearm restrictions. 23. The Circuit Courts of Appeal that have addressed the issue have generally concluded that intermediate scrutiny should be applied to the firearms restrictions they considered. For example, In United States v. Reese, 627 F.3d 792 (10th Cir. 2010), the Tenth Circuit adopted and applied the intermediate scrutiny approach to a statute prohibiting the possession of a firearm by a person subject to a domestic protection order. Id. at The Tenth Circuit formulated the intermediate scrutiny test as follows: "To pass constitutional muster under intermediate scrutiny, the government has the burden of demonstrating that its objective is an important one and that its objective is advanced by means reasonably related to that objective." Id. at 802 (quoting United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010) (applying intermediate scrutiny to statute criminalizing possession of a firearm by a convicted felon). 24. Similarly, in United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), the Fourth Circuit applied intermediate scrutiny to a regulation prohibiting the carrying or possession of a loaded handgun in a motor vehicle inside a national park. Id. at The Fourth Circuit contemplated that courts "will employ different types of scrutiny in assessing burdens on Second Amendment rights, depending on the character of the Second Amendment question presented." Id. at 470. The Fourth Circuit explained that, under such an approach, "we would take into account the nature of a person's Second Amendment interest, the extent to which those interests are burdened by government regulation, and the strength of the government's justifications for the regulation." Id. Based upon these considerations, the Fourth Circuit employed intermediate

8 scrutiny to the challenged regulation because it burdened the right to bear arms outside of the home, and thus did not implicate the "core right of self-defense of a law-abiding citizen in his home" recognized by Heller. Id. at 471. The Court explained, that "as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense." Id. at 470. Therefore, the Fourth Circuit applied intermediate scrutiny to the regulation at issue, which required the government to demonstrate that the challenged regulation "is reasonably adapted to a substantial government interest." Id. at Most district courts to have addressed the issue have also applied intermediate scrutiny to challenged firearms regulations. See, e.g., Osterweil v. Bartlett, No. 1:09-cv-825, 819 F. Supp. 2d 72, 2011 U.S. Dist. LEXIS 54196, 2011 WL , at *10 (N.D.N.Y. May 20, 2011) (applying intermediate scrutiny to statute prohibiting nonresidents who are [127] not employed in New York State from obtaining a firearms license); United States v. Smith, 742 F. Supp. 2d 855, (S.D.W.Va. 2010) (applying intermediate scrutiny to statute criminalizing the possession of a firearm by a person convicted of a misdemeanor crime of domestic violence). 26. Although the State of Florida s objective in protecting its citizen s against stalking is important, its indefinite ban on a non-criminal s gun rights is not reasonably related to that objective. Cf. United v. Mahin, 668 F.3d 119 (4 th Cir. 2011) (upholding a temporary ban on firearm possession against individuals who have demonstrated a disposition for violence within a domestic context) (emphasis added). Specifically, here, Paul Pope s gun rights have been barred indefinitely for the non-violent offence of allegedly threatening to discuss private family secrets to the public.

9 27. Pointedly, in Florida, the offense of stalking occurs when a person willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person. Fla. Stat (2). Paul Pope is accused of harassing by allegedly engaging in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. Fla. Stat (1) Unlike other its federal counterpart, Florida s ban on firearm possession for alleged stalking is not of limited duration nor is it narrowly tailored to be a temporary burden during a period when the subject is adjudicated to pose a particular threat of abuse. See United States v. Chapman, 666 F.3d 220 (4 th Cir. 2012). 29. Rather, Florida Statute, Section broadly bans possession of firearms or ammunition by any individual that has been issued a final injunction that is currently in force and effect, restraining that person from committing acts of domestic violence or from committing acts of stalking or cyberstalking. The Injunction at issue here is in full force and effect indefinitely, until further order of the Court. 30. Florida s anti-gun statute is not reasonably adapted to protect the State s interest in protecting its citizens. There is no requirement that the individual threat or engage in violent acts. There is no time limitation of the duration of the injunctive relief allowed under Fla. Stat It is simply a blanket ban against a constitutionally protected freedom for an indefinite period of time without regard for whether the means is reasonably related to the State s objective. 31. Here, the State of Florida does not have a legitimate interest in whether Paul Pope discloses the Pope Family secrets or whether Ms. Pope will be embarrassed by such disclosure. 1 Notably, Paul Pope had a legitimate financial purpose in authoring an autobiography, disclosing personal family experiences to provide an accurate account of who and why he is the individual he is today.

10 Even assuming a reasonable objective exists for the State of Florida to protect the Pope Family secrets, this Court s order prohibiting Pope Paul from his constitutional right to bear arms is not reasonably related to that objective. 32. Based thereon, Paul Pope respectfully requests this Court modify the Injunction to remove the prohibition against the use and possession of firearms and ammunition and direct the Palm Beach County Sheriff s Office to return Paul Pope s firearms and ammunition to him. 33. Pope understands that the Court will hold a hearing on this motion and that he must appear at the hearing. WHEREFORE, Respondent, PAUL POPE, requests an order from the court modifying the Final Judgment of Injunction for Protection Against Stalking to remove paragraph 3(b) which prohibits Paul Pope from using or possessing firearms and ammunition and for such other relief as the Court deems just and reasonable. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document was served via upon counsel on the attached service list on this 16th day of June, Pike & Lustig, LLP TURNPIKE LAW /s/ Michael J. Pike_ Michael J. Pike Florida Bar No.: pike@turnpikelaw.com 2465 Mercer Avenue, Suite 204 West Palm Beach, FL Telephone: (561) Facsimile: (561) pleadings@turnpikelaw.com

11 Gregor J. Schwinghammer, Jr., Esquire Gunster, P.A. 777 S. Flagler Drive, Suite 500 East West Palm Beach, FL Phone: (561) Fax: (561) Attorney for Petitioner SERVICE LIST