Abuse of Temporary Restraining Orders Endangers Real Victims
December 28, 2005
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Posted by ANCPR
ifeminists.com > editorial > 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.
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.
Copyright © 2005 Wendy McElroy.
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The only thing more scary than this woman Nestler who believes she’s receiving “coded messages” from david letterman is the nitwit judge that didn’t throw her out of the court room immediately.
I agree; the fact that there are nut cases out there is not what shocks me. It’s the fact that there are nut cases out there dressed in black robes who make a travesty of our courts.
The fact that this lunatic still has a job and isn’t relieved of his duties to undergo a psychological evaluation is what scares the shit out of me. Are we going to wait until this nut causes someone’s death before we do something? That is, if he hasn’t already.
I bet you wouldn’t have to dig far to find some more dirt on this fool. I bet he profits financially for every restraining order he issues.
Years ago, Marv Albert, ( a very well know and respected sports caster in the metro NYC area, was bullied by a woman who he was fooling around with. He left her to go to another woman. He was single, divorced from his wife. The women he jilted made a public spectacle of him by humiliating him with intimate details of their romance. It was all just because he was a public figure.
Someone should get a hold of this ding-a ling-lady and see about making a spectacle of her. Perhaps dig some crap up on her and publically humiliate her.
It is incredible that Letterman does not even know this jerk, yet she can get a restraining order against someone who says he does not know. I gues if Letterman did know her, he would have been automatically thrown in jail by the judge.
I would like to see a man get a TRO against a woman, lets see how the stuff hits the fan … and then when it wont go through, SEXISM …
A while back I was sitting in divorce court in Dept 65, Los Angeles. A man was arguing in front of the judge to grant him a restraining order against his ex spouse. The female judge was not buying it and refused to grant him a TRO. I know for certainty if that was a woman asking for same it would be granted without any questions.
I say to all men, we need to petition our representatives in the state and federal governements to change the laws. We men need to unite, bitch and complain about these injustices. We need to unite and fight back to regain our manhood, our dignity, our kids and our strengths. We need to stop taking this crap from women and from our politations. Do not vote for women politations, judges or other public offices.
Any pschiatrist will tell you that this woman is schizophrenic and needs help. She should be pitied, not demonized. Judges who take her fantacies serious are idiots, or right wing bigots that hate Letterman.
It’s not true that TRO’s can be obtained easily. My husband and I have been trying to get one for the X’s brother-in-law.
This guy has been watching my SS and his siblings. He is constantly abusing my SS, throwing him to the floor and across the room. He kicked my SS, etc. Health and Human Services told her that it was a bad idea to let her bro-in-law watch the kids and she still does it.
My husband filed for the TRO as the father of the child, (they wouldnt let me do it), and the judge denied it.
Even with HHS backing us up, they denied the TRO.
I don’t think the real issue is TROs per se. Rather, I’m fairly convinced that some judges will side with the woman and against the man no matter what. My post has more to do with restraining orders in general, but I am fairly certain that this is true with TROs, too.
First off, think about who actually becomes a judge. Some of them are probably highly reasonable people. But the selection process will favor judges who habitually take the woman’s point of view. You’ll have some judges (mostly lefties) who are likely to take an extreme feminist viewpoint that generally perceives women as victims of men in domestic situations. And you’ll have some judges (mostly righties) who are likely to view women as the weaker sex that needs to be protected. Men will be viewed as the stronger, less trustworthy sex that simply shouldn’t need protection. There is all sorts of pressure from the left and the right to have judges who will “protect” women and not question their statements. But there’s no selection pressure to bring in judges with a concern for men’s safety.
I can understand why judges might be generous with the TROs. The idea is to have a very lenient criterion; to protect the person making the complaint until both parties are present in court. So the Letterman ruling, however brain-dead, isn’t really horrible. It is just pig stupid. But any anti-male sexism in regards to granting TROs is very dangerous.
In my own case, I came up against a verrrrrrry old retired judge who apparently has a reputation for this kind of bias. And the womens’ groups love him for it! My story…
I’m male and I was able to get a TRO against my very dangerous, stalking ex gf. That part wasn’t difficult at all, with all the evidence. It is both a relief and a big concern to get one of these things. On the one hand, you have legal protection. On the other, you have to worry about your stalker going ballistic upon receiving the TRO.
When I went into court for the 3-year RO, I had all the documentation – police reports and arrests when she got drunk or violent, phone records, and and more, more, more. The situation was totally nuts, and I really needed help keeping this person away. And I had an attorney, which I’m sure was helpful.
The judge didn’t look at the evidence. From the instant he considered the case, he decided to flatter her while lecturing me. He immediately took her side, and argued that there should at best be a mutual restraining order. He angrily told me that I had to stay away from HER. And he apologized to her for my behavior. (All this while he also admitted that he hadn’t looked at the evidence. My ex gf hadn’t even said anything at that point). It was surreal. I figured it was some kind of test… but he was serious.
Fortunately, my attorney kept fighting on my behalf, and we were able to get some protection in the end, and the misguided judge gave up his campaign for a mutual restraining order. But it was a bizarre fight. The actual facts were barely considered. The judge said a pleasant goodbye to her as she walked out, and then resumed his angry lecture about how I needed to leave HER alone. I left feeling that I was in more danger, not less, following the court appearance.
Later, I found a number of cases online involving this judge (Federico Castro from California). The two cases were appeals of his decisions: “Roldan v. Castro” and “Marriage of Johnson” (available at fearnotlaw.com). The comments of the appeals court were interesting in both cases (especially Roldan v. Castro). Now maybe these guys deserved the lashing they got from this judge… but where’s the evidence? In both cases, the judge simply accepted the woman’s statements and discounted any evidence from the man. And in one case, the appeals court responded to the judge’s bias. Compared to these guys, I was lucky.
When it was over, my attorney assured me that not all judges are like this.
Well, it would appear that the RO worked, but I’m still pretty PTSD from the whole thing. But I wonder about the kind of damage these judges do when the guy has no representation or documentation.
OK, its late. Had to get this off my chest.