Lip Service: What Passes for Fair and Sound Restraining Order Policy in Michigan (and, Largely, Everywhere Else)

Posted on June 10, 2014

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I’ve tried in earnest to field a lot of questions about the rules and practices that apply to restraining orders. A lot of the answers don’t make any sense.

Judges and authorities don’t question the fairness or sense of the rules, because that’s not their job. Lawyers sometimes question them but may not be fully aware of them themselves. And defendants, who are terrorized and railroaded through, often have no recourse but to complain afterwards about injustices they’re not always able to explain.

Let’s shed some light on a few of these injustices with the help of the Kalamazoo County Prosecutor’s Office. Its website’s “Personal Protection Orders” page is here.

“A police officer called and informed me of a PPO [personal protection order]. Is a phone call effective without personal service upon me?” This is a question the likes of which bring visitors to this blog regularly.

Most attorneys, if asked this question, would probably say no, it isn’t sufficient—and for good reason. The average person who’s issued an order of the court has no idea what its significance is. A cop’s calling and telling him or her about it—“Hi, a protection order has been issued against you”—hardly qualifies as making him or her aware of prohibitions whose violation s/he can be arrested and jailed for without being tried before a jury for anything.

In Michigan, however, “oral notice” (lip service) is apparently deemed “good enough.”

Notice no actual confirmation that a defendant has even been orally informed of a court order is required (like a signature, for example). It’s sufficient if a police officer (or clerk) files a form that says the defendant was told of its “existence.” This say-so is called “proof.”

This “proof,” once “entered into the computer system,” authorizes a police officer to arrest the defendant for violating an order of the court that s/he may not even have been given a copy of. The defendant’s so much as saying hello to the plaintiff now qualifies as a crime for which s/he can be arrested and punished.

(The Kalamazoo website later contradicts itself with this statement: “The police might not arrest the restrained party, especially if the officer did not witness the acts violating the PPO, or if there was insufficient proof that the Respondent had been served with the PPO papers before the alleged violation occurred.” This suggests that service does require that a police officer place a copy of the order in the defendant’s hands. You see from these kinds of inconsistencies why so many people complain that officers they question seem to make up answers on the spot.)

You may be thinking that with policy’s being so wishy-washy, there’d have to be evidence that the defendant committed a violation of the order before a police officer could arrest him or her. Not so. A violation, which the defendant may not even understand to be a legal trespass, just has to be reported to a police officer once the order is in the system.

I like the phrase “warrantless arrest,” because one of the meanings of warrantless is lacking justification or proof. To be clear, the basis for hauling someone off to jail may once again be somebody’s say-so. An officer doesn’t have to witness anything.

An order itself is, of course, issued on somebody’s say-so. Consider:

An ex parte order may be obtained by a plaintiff without the defendant’s knowing a thing about it (that’s what ex parte means), and obtaining the order is an investment of two and a half hours’ time tops. Most of this is waiting. The actual audience with a judge may only take five minutes. Observe, further, that “PPOs do not require a court hearing.” That means there’s no follow-up mandated by law. Unless the defendant knows to request a hearing to challenge the allegations against him or her—which may include anything from harassment to stalking to battery or worse—the order (possibly based on a five-minute interview) is a done deal, and those allegations remain permanently stamped on the defendant’s public record.

To repeat for emphasis: A judge may never so much as clap eyes on the defendant, who’s just a name scrawled on a form.

As if all this didn’t sound bent enough, contemplate this, finally:

This means that if the plaintiff on the order opts to contact the defendant, that’s perfectly okay. The person who goes to jail is the defendant.

Does this mean a malicious plaintiff can bait the defendant into violating a court order by calling, texting, or emailing him or her, or showing up at his or her home or place of work?

phewRight. (People report answering the phone and actually being told, “Gotcha!”)

The Kalamazoo County Prosecutor’s Office is hip to this potential source of abuse, however. It admonishes plaintiffs in the sternest terms not to “send the wrong signals.”

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