Abuse of Temporary Restraining Orders Endangers Real Victims

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On Dec. 15,
Santa Fe District Court Judge Daniel Sanchez signed a temporary
restraining order
against CBS late-night host David Letterman,
requiring him to keep his distance from Colleen Nestler.

According to
Nestler, for more than 10 years Letterman has been sending coded
messages over the airwaves that communicated his desire to marry
her. (Nestler has also accused TV personalities Regis Philbin and
Kelsey Grammer of communicating with her through televised code.)
Letterman says he doesn’t know the woman.

Nestler’s TRO
may be ludicrous, but it highlights a no-nonsense debate on the
possible misuse of restraining orders.

A restraining
order is a court
order
“directing one person not to do something, such as make
contact with another person, enter the family home or remove a child
from the state.” They are usually issued to women in regard to domestic
violence, stalking and divorces in which violence is alleged.

TROs are “often
granted without notice
… until a hearing can be held to determine
the propriety of any injunctive relief.” Nestler’s TRO was granted
ex parte, meaning only one party was heard by the judge.

The purpose
of a restraining order is to protect someone from a credible threat.
But the Nestler case raises questions about whether restraining
orders have drifted from their original intent.

That permanent
restraining orders require a hearing does not reassure skeptics.
The judges and courts that issue TROs are the same ones deciding
on whether to validate their prior decisions.

Judge Sanchez’s
reaction to unflattering press coverage is not reassuring, either.
According to the newspaper Santa
Fe New Mexican
, “When asked if he might have made a mistake,
Sanchez said ‘no.’ He also said he had read Nestler’s application.”

The application
accused Letterman of causing mental cruelty, sleep deprivation and
bankruptcy. Nestler requested that Letterman not “think of me, and
release me from his mental harassment.”

Sanchez emphasized
reading
the application
because lawyers in his district have alleged
he “often doesn’t read legal documents submitted.” Since issuing
a TRO is within a judge’s discretion, it is difficult to say which
scenario is more disturbing: an informed judge validating Nestler’s
delusions or a negligent judge not bothering to read what he signs.

Even more disturbing
is whether frivolous or unfounded TROs are commonplace.

Women’s groups
maintain that abuse of TROs is rare; they believe the issuance and
enforcement of restraining orders must be strengthened to save women’s
lives.

There have
been heartbreaking cases.

Jessica
Gonzales
obtained a restraining order limiting her estranged husband’s
access to their three children. Nevertheless, he murdered the children
before being killed by police.

In early 2005
Gonzales became a cause célèbre of organizations such
as the National
Association of Women Lawyers
. She attempted to sue the police
department for not taking her restraining order seriously. The Supreme
Court ruled against her.

By contrast,
men’s and father’s
rights groups
contend that restraining orders and TROs in particular
have become standard paperwork in contentious divorces or cases
alleging abuse. They consider many TROs to be merely a strategic
move by which one adversary harasses the other or acquires leverage
in matters such as child custody.

A litmus test
of how vulnerable TROs are to abuse is how easy they are to obtain.

Procedures
vary from state to state, but the Superior Court of California in
Sacramento is
typical
. The court advises “no filing fees are required. …
[Y]ou must present the application to the clerk no later than 2:45
p.m.”

The judge will
make a decision on a TRO. Then, “you must personally appear at Window
3 of the Family Law filing counter at 4:00 p.m. [a little over an
hour later] … on the same day.”

The court’s
Web page advertises a regular, free class on filling out the application
offered by the group “Women
Escaping a Violent Environment,”
which advocates for female
victims of domestic violence and sexual assault.

In Oregon,
DivorceNet
provides advice on TROs. As in most states, an applicant need only
assert a “fear” of violence even if none has occurred. Some applications
can be made by telephone.

The seeming
ease with which TROs are issued constitutes a problem for those
who wish all restraining orders to be taken seriously. Any court
order that can be obtained over the phone by stating a fear, or
picked up at Window 3 in a little over an hour, trivializes the
process.

But a TRO is
not trivial. It is a legal constraint upon another human being’s
freedom. It should be issued only in the presence of a real threat.
False or frivolous applications should be viewed in the same manner
as are false police reports.

The order against
Letterman was lifted on Tuesday when a New Mexico judge ruled in
his favor, but his prominence has placed him in a unique position
to stir debate on the use and abuse of restraining orders.

In the ’90s
he was stalked by a
schizophrenic fan
who committed suicide after spending years
in prison for breaking into Letterman’s home.

Earlier this
year, his baby son was targeted in an unsuccessful kidnapping-for-ransom
scheme. It is unconscionable that an obsessed fan has obtained court
approval to harass him further.

Nevertheless,
I hope Letterman’s legal vindication is not based on the technicalities
advanced so far by his lawyers, technicalities such as the contention
that the New Mexico court lacks jurisdiction.

I hope his
victory is based on the principle that all restraining orders must
meet legal standards of fairness and evidence if they are to demand
respect.

December
30, 2005

Wendy
McElroy [send her mail]
is the editor of ifeminists.com
and a research fellow for The
Independent Institute
in Oakland, Calif. She is the author and
editor of many books and articles, including the new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

Wendy
McElroy Archives

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