Restraining Order Anarchy

HarassmentCalifornia’s restraining order laws threaten to drive us into a state of anarchy, or as Thomas Hobbes called it in Leviathan, the war of all against all.  So far our legislators have devised six of these things.  Best known to the general public are the two laws providing for restraining orders to prevent civil harassment and domestic violence. Mostly unknown to the general public are the other five, for restraining orders to prevent elder abuse, workplace violence, private postsecondary school violence, and transitional housing misconduct.

There’s a mandatory set of do it yourself forms for each of these, including instructions.  You can get a temporary restraining order (the “TRO”) without notice to the bad guy, a noticed hearing (a mini-trial) has to occur within 15 days, and at the hearing you can get a three year “permanent” injunction against the bad guy with “no contact” and “stay away” orders and other goodies.  For civil harassment and domestic violence there’s no filing fee, and you don’t have to post a bond to get the TRO (if you lose at the hearing, to pay the defendant his costs and any fees he incurs). Everyone and anyone can play.

As usual, good intentions started the ball rolling.  For decades you’ve been able to sue somebody for intentional infliction of severe emotional distress.  In theory you could get a temporary restraining order and a preliminary injunuction pending the trial, but it could take months to do it, as well as lawyers, a pile of custom paperwork, a bond, and lots of money.  Then after more months, there was a full dress trial.  This was injustice.  What was needed was a quicker, cheaper way to get an injunction stopping the infliction and thus the distress.

Domestice violence posed a similar problem.  The cops could arrest the offending spouse, but he or she would be out on bail and back home in a couple of days, throwing plates, punches, or worse.  Again, a quick, easy, and cheap way was needed for the battered spouse to get “no contact” and “stay orders” preventing future injuries.

These days the problem is two-fold.  First, too many people exaggerate if not lie about the harassment or the violence.  For example, if you’re holding a grudge aginst some one for some real or imagined slight, it’s easy to make up a story with all the required ingredients for legal harassment. Because most of the stories judges hear in these matters are “he said, she said,” TRO’s are seldom refused, and three year injunctions are the norm.  For a spouse contemplating divorce, an allegation of domestic violence is a particularly tempting way to get the upper hand, particularly if child custody will be an issue.

Second, too many police officers tell people they need to get TRO’s and injunuctions.  Experience indicates that when the police are called to deal with supposed harassment or domestic violence, they often tell the victim he or she must go to court and get a TRO, even if the victim would otherwise not do so.  The days of the Irish cop persuading people to calm down and make up are long gone.  In one domestic violence case, the first words of the first officer entering the house were, “Some one is going to jail tonight.” Despite the girlfriend’s pleas that the argument was over and her boyfriend shouldn’t be arrested, off to jail he went.  At least the police seem to be gender neutral.

In fairness to the judges and the police, there is something to be said for being cautious.  Failure to seek a TRO and an injunction, or a mistaken refusal to issue them, can sometimes lead to results nobody would want.  On the other hand, the existence of these streamlined remedies seems to encourage their unnecessary use, and to discourage people from avoiding situations where they might indeed be necessary.

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Stan Prowse


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