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Commentary

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.


Wendy McElroy is a Research Fellow at The Independent Institute. Her books include the Independent Institute volumes, Liberty for Women: Freedom and Feminism in the 21st Century, and Freedom, Feminism, and the State.

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