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Abuse of Temporary
Restraining Orders Endangers Real
Victims
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.
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.
©2008, Wendy
McElroy
* * *
Wendy
McElroy 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 her latest book,
Liberty for Women: Freedom and Feminism in the
21st Century. She lives with her husband in
Canada. E-Mail.
Also, see her daily blog at www.zetetics.com/mac
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