According to Protection Orders Do Not Protect by Charles E. Corry, Ph.D., the number of RO’s in domestic cases is between 500,000 and 850,000 (over 1 million if you include rape and stalking cases). That’s a lot of RO’s. If there are that many out there, it would seem they wouldn’t be as much of a detriment on a resume, but maybe they are.
A restraining order is not a sentence; it’s a court order and does not ascertain guilt, even though obviously many people may see it that way. An order to show cause, for instance, has nothing to do with guilt or innocence but is, if I understand correctly (IANAL), simply a means for a judge to get more information.
Beyond the harm it may do to someone’s career and possibly their hunting or gun collecting ambitions, it sounds like the real beef here is the sense of anger and injustice at what is perceived to be a punishment and a personal slam. I wonder if judges don’t see it more as a way of keeping two parties apart and therefore avoiding trouble.
By the way, the site referenced above has lots of good, helpful information for people who have RO’s against them. It may deepen your anger, but it will give you some ideas as to how to proceed.
I can’t comment on anyone’s case but my own and that was in Florida. I WAS required to surrender my handgun; in fact, three deputy sheriffs were sent to my residence specifically to confiscate my handgun. Two of the three were, IMHO, not fit to wear the badge but that’s another story.
In Ohio, there’s a box on the form to check if the subject of the order has guns or access to them, to warn law enforcement if push comes to shove, but I’ve never heard of anyone being ordered to surrender their weapons as a condition of the order. Guns may be seized if the cops actually come to the house on a DV call, but that’s different.
I think you’re assuming a case in which, like the OP, the parties are in different locales anyway. In the vast majority of cases, the parties are in close proximity, and the RO has the very real effect of banning the subject of the order from all sorts of places that may be important to them, such as their own home, or favorite hangouts and/or shopping places. Pretty significant impact, I would think.
Which is not to mention the impact on future custody and support rulings.
Which is also not to mention the impact on employment background checks, as others have noted.
There was a judge in NJ who ruled that due to the severe impact on the life of the person subject to the order, you should need a higher standard of probability than the current “50.1% likelihood”, but his ruling was overturned.
[Of course, in reality the actual likelihood required for a RO is a lot lower than 50.1%. Judges are a lot more worried about violence being inflicted on someone to whom they had denied a RO than they are about inconveniencing some guy.]
Back to the question in the title… “can you appeal a restraining order?” The answer is yes. Typically, the process works like this. The applicant asks for a temporary restraining order, which is usually granted with minimal burden of proof. The judge will set a hearing, within a week or two, at which point he’ll ask for more detail and the subject of the restraining order has a chance to challenge it.
I’m inferring from the OP’s description that this is what happened, and that a year later the OP’s friend went to court for a hearing about whether or not the RO should be extended. If that’s the case, then he’s already had two opportunities to appeal the restraining order. If he didn’t attend these hearings, or did so without an attorney, then he’s not likely to have much success.
I can’t speak to specific state laws, but I would imagine that one can challenge a RO at any time. Just because a judge issued an order of protection for a year doesn’t mean he has to wait a year to challenge it.
(g) It shall be unlawful for any person -
(8) who is subject to a court order that -
(A) was issued after a hearing of which such person received
actual notice, and at which such person had an opportunity to
participate;
(B) restrains such person from harassing, stalking, or
threatening an intimate partner of such person or child of such
intimate partner or person, or engaging in other conduct that
would place an intimate partner in reasonable fear of bodily
injury to the partner or child; and
(C) (i) includes a finding that such person represents a
credible threat to the physical safety of such intimate partner
or child; or
(ii) by its terms explicitly prohibits the use, attempted
use, or threatened use of physical force against such intimate
partner or child that would reasonably be expected to cause
bodily injury....
to ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.
Note the “possess in or affecting commerce” portion. The “commerce” reference isn’t precisely about sales, it’s more of a nod to the commerce clause to affirm that Congress has the power to regulate firearms.
The warning that the respondent cannot possess firearms is included on all protective orders we issue, in clear language. The only exception is for people who are actively-employed police officers at the time the order is issued.
My gf was recently granted a RO against her ex here in CA. The process was as follows:
She applied for a Temporary RO by filling out a simple form and briefly going over what has been going on. TRO’s are almost always granted. A hearing was set for a couple of weeks later. Her ex was served with the TRO which had the hearing date on it.
The hearing is actually a preliminary hearing. The gf presented her evidence and the ex was allowed to respond. The judge can then decide to not grant the RO, to grant the RO or to hold a regular hearing where more detailed evidence is presented. I believe that the third option is more common but my gf’s ex was such a fucking nut case that she was granted a three year RO on the spot. I saw the paperwork and since the RO was granted, the ex would have been required to give up any guns that he owned but he didn’t own any so it didn’t matter.
It seems odd to me that the OP’s friend wasn’t informed of the hearing and given the opportunity to defend himself.
The fact that someone lives far away doesn’t mean that they can’t harass someone and need a RO. My gf’s ex sent violent emails to her, called her at all hours, called her friends and family at all hours to tell them how horrible she is, emailed her business contacts and accused her of fraud, made naasty posts about her on blogs and message boards populated by real and potential clients as well as harassing her in person.
The OP did say the friend went back to court a year later and the order was renewed.
Restraining orders like this are civil matters and shouldn’t affect a person’s job. It may not even come up unless the job requires an extensive background check, and even if he appealed the renewal, it’s still on his record anyway.
I had a civil RO filed on me from a nutty ex bf. He did it because he (presumably?) knew I was job searching AND it was one more way for him to be a dick. Yes, an outstanding RO hurts if your potential employer does a court search and school districts definitely do that. It was also a retaliation for my RO since* he *was stalking me. (Mine was a legal issue. His was civil.)
:crazy:
My friend is an atty and I called him up and we went to the preliminary and then got a hearing. The judge stopped the hearing in the middle of it and said he wasn’t going to grant this. And then he turned to me and said, “I’m glad you fought this. I never side with the defendant. I prefer to err on the side of caution, but this man here just wasted my time.”
My friend (who’s a criminal defense atty) said he’d never seen one not granted and he was there for moral support, not because he thought I had a chance. And then bailiff came up to me afterword and said, “That guy [the ex] is one of the slickest I’ve seen. What does he do for a living?”
In CA, there is an exception if the two parties have kids and joint custody. Brief communication solely relating to the children is allowed. (My gf and her ex don’t have kids but I saw the order and there is an allowance for this if a certain box is checked.)
Very glad to hear that your RO was not granted because it wasn’t warranted. However I will take issue with the “yeah, it happens” statement. You are a woman and yes there is a HUGE difference. I would be willing to bet that you would have an almost impossible task of finding one case of a non-granted RO when the person asking for it was a woman and the recipient was a man.
I am not trying to be a sexist or belittle your victory. However I have been a victim of a vindictive ex wife, I have been a member of many Dads Divorce fourums and the stories are ALWAYS the same. False allegation, undeserved RO. I would say that it is just bitter jilted husbands if I hadn’t lived it myself. The strange thing is the story is always the same. I was told by two attorneys in my town when fighting the RO that the local battered womens shelter advises women on exactly what to say to get a RO. They encourange women to get an RO even if no actually threat or violence happened. It has gotten so bad that there is (or was at the time) a lawsuit against the womans shelter, claiming that they were pressuring women to take RO’s out on their spouses even though the was no reason to. They were basically telling women to lie and telling them what to say to ensure the RO was given.
I am all for a RO if it is for a warranted situation and is for the protection of someone who is actually in danger. However, handing RO’s out like candy because a woman is vengful and pissed off does nothing but dilute the sympathy that is due the true victims. The man who recieves a false RO has it hanging around his neck for the rest of his life. The system is broken and needs to be fixed. No proof, no RO period.
If he’s in the military a restraining order is the kiss of death, thanks to the Lautenberg Amendment.
There are so many ways that the Lautenberg Amendment can kill a career that if you as a service member feel the accusation is unjustified and want to keep your career you better challenge all such accusations with everything you have. A simple restraining order is enough to do it. Plea-bargaining a false charge to make it go away is also enough. It has happened, and as long as that law is on the books it will continue to happen, albeit very rarely.
That brings up an interesting question - if someone has a restraining order against you, can you still file for a restraining order against them? What if you know they’re going to file an RO, but you file one first? Do you win?
I’m sure the answer is: the woman wins no matter what (as you did in your case). But just curious.
Not only can you call up Joe Bob with no consequence to yourself, but Joe Bob can get into serious trouble if he talks to you on a phone call that you initiated.
I believe some women actually do this deliberately, in divorce situations when they are trying to entrap their husbands. But sometimes prosecutors will prosecute violations of ROs even if the ostensible beneficiaries are unwilling. (Typical scenario involves a women who files a domestic violence complaint which triggers a RO, but then reconciles with her spouse. Nowadays the thinking is that such women need to be protected from their own bad judgment.)
Jason Kidd filed a restraining order against his wife and she responded by immediately filing one against him.
I don’t quite follow this part. What is to stop someone who got bad feedback on ebay from taking out a restraining order?
I also wonder if there is any data that restraining orders actually deter any violence? Frankly the guys I’ve seen that need restraining orders are probably not going to care or the RO might actually set them off.
ROs really can make a difference. A nutcase who is determined to bother someone else might not be deterred, but when the cops are called he (or she) is far more likely to be picked up and taken into custody than if no RO was on file. Violation of a RO can also lead to additional charges and/or being held in contempt of court.
I agree that, in some jurisdictions, ROs are probably granted too easily under the dictum “better safe than sorry.” But there has to be some factual basis for granting one, and a RO which is imposed for no good reason at all is IME far more likely to then be lifted when the subject of it objects.
In Ohio, mutual ROs are disfavored because it tars victim and offender with the same brush. The victim may (but would be very unwise to) contact the offender even after the RO is granted. But the offender cannot do the same - it is the court’s order, not the victim’s. Of course, “She keeps calling me” is information the offender is going to want to provide to the court at his next hearing.
Prosecutors often do, as Fotheringay-Phipps said, proceed with cases even after the complaining witness/victim has changed her mind, as those in abusive relationships often do forgive their attacker and want to back out of the case. I’ve seen it happen many times. But by involving the police and the prosecutor, the CW/V has made the case a matter for the courts, which seek to uphold the law and preserve the peace even if the person who got the ball rolling has since gotten cold feet.