A Restraining Order restricts the freedom of the person who is the target of it. Is there any legal hoops that need to be jumped through? In other words, is it removing some of the person’s civil rights, and what is the legal event that allows this? Is the person who has to stay away a regular citizen in the court’s eyes?
Or is there a legal ‘layer’ between “normal free citizen,” and “formally accused of a crime” citizen?
Is my question making sense?
Finally, could a person against whom one has a restraining order have other impositions placed upon them without them being subject to a trial? Could the court order that they have to provide updates on their whereabouts, for instance?
I’m not a lawyer but the basics are established by the laws in whatever jurisdiction you’re talking about. There’s a due process procedure where somebody submits their reasons why they’re seeking the order and there’s a hearing, usually before a judge, where the person who is the subject of the order is allowed to present their side of the story.
Some people say the process is inadequate and that the burden of proof for restraining orders is too low. But that’s more a matter of debate rather than a discussion of the procedures.
Many places have procedures for emergency restraining orders, where the burden of proof is lower and the restrainee may not be present at the hearing (or even know about it.) EROs only last a short time, and the complainant must go through the normal process if they want it extended.
Temorary restraining orders are granted (pretty routinely) without the restrainee being present or having a say (or even knowing about it). But this gets followed up in a week or two by a hearing in which the restrainee gets to be present and represented by a lawyer.
That said, the standard of proof for full ROs is pretty low - “more likely than not” - and it’s likely that judges would rather err on the side of caution so practically speaking it’s probably even lower than that.
A restraining order might deter someone that is being a nuisance, but if they are intent on causing bodily harm, they have already decided that jail time is not an issue. If the possibility of years in prison is not enough to change their behavior, what good does it do to threaten someone with a night in jail? In other words, do RO’s really serve any useful purpose?
It means that the cops can arrest the subject of the order before he does anything wrong. For example, if a woman calls the police and says “my violent ex-husband is sitting in a car right in front of my house,” they can’t arrest him because he hasn’t done anything wrong. But if she has a restraining order, they can arrest him for violating the order.
But you are, of course, right. If the husband just starts shooting before anyone notices him or the police get there, the restraining order isn’t going to help.
Isn’t this like saying murder is illegal, but if someone doesn’t care about jail, they’ll do it anyway, so why have a law about murder? A restraining order informs the court, police and parties involved that a problem exists and should it happen again, there will be a framework for quick consequences.
Sure, there’s still nothing to stop the person from ignoring it and driving straight to the other person’s home and shooting them, but that’s a miniscule number of cases. Most people will probably stalk their victim and wait for a good opportunity, so if they are seen sitting in their car in front of the person’s house in public, they can still be arrested for violating the RO. Without a restraining order, the cops in the above scenario would say “Welp, technically he’s not doing anything illegal by sitting in front of your house making the throat slitting gesture with his finger. Call us if he kills you.”
Just so we are using the same terms, in my state and most I know about restraining orders are civil in nature. The one asking for the order is the plaintiff, the other party is the defendant. Just like in a civil trial.
I don’t think a RO is going to do much to stop a premeditated murder. But a lot of domestic murders are not so premeditated. Sometimes you have people whose interaction really drives them crazy and some of these murders come about in a fit of rage. So if you can cut off the entire interaction you can forstall that situation from coming about.
If someone is not present at the hearing where the RO is issued, do the police have some legal duty to warn the subject of the order off before arresting him/her?
That is -
[ul][li]I am stalking my ex-girlfriend[/ul][/li][ul][li]She gets a restrainging order against me, and I am not at the hearing[/ul][/li][ul][li]That night she calls the police because I am sitting outside her apartment wearing a purple tu-tu and fondling a chain saw[/ul]Can the police automatically arrest me, or do they have to say “Your ex has a restraining order against you, so you have to stay at least 300 feet away from her and you cannot carry cutlery” and then let me go?[/li]
[del]Need answer fast[/del] I am asking on behalf of a friend.
*usual disclaimer that each state has different laws
That is exactly right. I’ve found that restraining orders are pretty effective. When it comes down to it no one wants to go to jail. In my state a violation means at least an overnight stay. There is no bail until you can appear in front of a superior court judge. When someone finds out they can get locked up just for sending a text they generally stay away. Violence after an order has been served does happen but in my career it has been extremely rare.
You can not be held responsible for an order you haven’t been served. It is one of the reasons why we are obligated to attempt to serve over and over until completion.
Right now it’s hard to right in depth with my thumbs on my phone. If anyone has specific questions about the subject I will answer when I get a chance.
OK. So a temporary order doesn’t require the restrainee. Standing order does.
Still, the crux of my question - if you are the restrainee, what legal status is that? Have you been accused of anything? You haven’t been convicted of anything.
What civil rights can the court restrict just based on your being the subject of a successfully executed restraining order? Could the judge order anything he wanted? Could he order you to check in with a parole officer, for instance, once a week, to report on your activities?
You have been accused of violating and have been found to have violated – civilly, not criminally – the abuse provisions of the law. The remedy for that abuse is an order enjoining you from contacting/harassing/abusing/being around the person who obtained the order. In different jurisdictions there can be different consequences for having been found to have committed abuse; i.e. your firearms license status might be affected and so forth.
You haven’t been convicted of anything, but you have been, at a lower standard of proof, adjudged by the court to have committed actions which if proven beyond a reasonable doubt in a criminal context would probably (but not definitely, if the abuse is finely tailored enough to not be a crime) result in a conviction.