Arizona | TALKING BACK to restraining orders

“Let’s face it, sometimes you get wrongfully accused of harassing someone. Perhaps it is a vendetta, a figment of the accuser’s imagination, or something else. […] The mere accusation, even if unfounded, can be devastating to your reputation and may imperil your chances of employment, could lead to the loss of your right to possess a firearm, [restrict] where and when you can go places, etc. (Note: These matters become public records that can be easily searched and identified.) For example, we often find that neighbors who become ‘unneighborly’ will seek an order restricting how close you can come to their home, and whether you are to stay away from certain ‘areas,’ etc. Additionally, if left unchallenged, then often the mere allegation that you violated the injunction against harassment may land you in custody.”

—Attorney Joseph A. Velez

The “Injunction Against Harassment” is one of three types of restraining (or “protective”) order issued in Arizona. The title of the instrument is deceptive. Allegations by petitioners aren’t limited to harassment and may be of anything, including violent threat or assault, or even sexual violation.

An “Order of Protection” is what a complainant files against someone who shares a residence with him or her; an “Injunction Against Harassment” is what a complainant files if his or her relationship with the defendant is other than domestic (e.g., against a friend, neighbor, or stranger). Conduct alleged on either order may be identical.

It may also be false. Orders aren’t hard to obtain, including on the basis of exaggerations or outright fraud.

Here are some facts of which the recipient of an Arizona Injunction Against Harassment should be aware:

Highlighted in this explanation from the Tucson City Court, which applies everywhere in the state of Arizona, is a statutory requirement that the judge who issued you an Injunction Against Harassment may have carelessly overlooked.

The injunction may be appealed, and an appeals hearing may be requested at any time during the order’s term of effect (one year). It need not be requested immediately. A.R.S § 12-1809(H). You must apply to be granted a hearing, and you must apply in writing. (Instructions appear at the top of the document’s first page.)
Postponing the appellate procedure allows you more time to gather evidence and witness testimony, and save money to procure the services of a lawyer. Being issued an order of the court can be intimidating and bewildering, and a defendant’s impulse may be to drop everything and respond immediately. There’s much, however, to recommend deferment.
Satisfaction of A.R.S § 12-1809(E) requires that the petitioner of the order must have presented to the judge “specific facts attesting to [his or her] efforts to give notice to the defendant or reasons supporting the plaintiff’s claim that notice should not be given.” This means if the petitioner of the order did not notify you prior to applying for an ex parte order from the court, and no good reasons were provided to the judge why you weren’t notified, then judicial approval of the order was against the law.
Judicial derelictions are grounds for an order’s dismissal.

Restraining order defense may be a specialization of some criminal attorneys, and the defendant seeking legal counsel would do well to search for a specialist in his or her city online and/or call around.

*The author of this post successfully had an injunction against harassment dismissed last summer.

I live in Arizona where I was issued a restraining order in 2006 petitioned by a woman I nightly encountered hanging around outside of my house. The restraining order said I was a danger to her husband and shouldn’t be permitted to approach or talk to him.

If you receive a restraining order in my home state, here’s the first thing that greets your eye:

On the basis of the form this warning captions—which looks like it was drafted by someone using a pizza crust as a straightedge—citizens are recorded in state and national police databases as stalkers and violent abusers.

Consider that the immediate impression this warning is meant to give is beware. It naturally excites fear—and if you’ve been falsely accused, a host of other emotions, besides, none of which conduces to calm and lucid thinking.

Something you wouldn’t guess from this “Warning to Defendant” is that if a defendant “disagrees” with an order issued in Arizona, s/he has the statutory right to apply for an appeals hearing at any time during the order’s effectiveness. For example, if the duration of the order is one calendar year, the defendant can take 11 months to assemble his or her appeal and save up, if necessary, to have an attorney represent that appeal.

Here’s the law:

At any time during the period during which the injunction is in effect, the defendant is entitled to one hearing on written request. No fee may be charged for requesting a hearing. A hearing that is requested by a defendant shall be held within ten days from the date requested unless the court finds compelling reasons to continue the hearing. The hearing shall be held at the earliest possible time. An ex parte injunction that is issued under this section shall state on its face that the defendant is entitled to a hearing on written request and shall include the name and address of the judicial office where the request may be filed. After the hearing, the court may modify, quash or continue the injunction.

The statute says the court’s order must inform the defendant that s/he’s entitled to a hearing, but it doesn’t require that the order inform the defendant that s/he has a year (or possibly years) in which to prep and apply for that hearing, that the hearing is free, or that the defendant may be represented by an attorney.

Restraining orders are rhetorical psych-outs. Their language is overtly menacing, and neither the law nor the issuing courthouse gives any consideration to apprising defendants of their rights.

The stress is on apprising defendants, who are presumed to suck (sight unseen), of what rights they’re no longer deemed worthy of.

Appreciate that the court’s basis for issuing the document capped with the “Warning” pictured above is nothing more than some allegations from the order’s plaintiff, allegations scrawled on a form and typically made orally to a judge in four or five minutes.

In the courthouse where the order issued against me was obtained, restraining order petitioners file into a room like a small bus station terminal, submit their applications, wait for an audience with a judge, chat with him or her for a few minutes, and leave.

That’s it.

Consequences of receiving an order of the court whose merits are determined on this basis include registration in state and national law enforcement databases, and may also include loss of entitlement to home, children, and possessions, and loss of employment.

In contravention of due process, orders are issued against defendants that may deny them liberties and property without the court’s hearing from them at all.

Ever.

In Arizona, unless a defendant requests a hearing before a judge, that’s an end on the process. No judge will even have learned what s/he looks like, and the truth of the plaintiff’s claims will never have been controverted—claims, to reiterate, that were made in a few minutes and could include anything from annoyance to physical or sexual violence.

Such claims often amount to nothing more certain than finger-pointing.

(Docket time afforded by the court to the testimony of defendants who go to the trouble of appealing rulings based on such claims, incidentally, is about 15 minutes. The cost of attorney representation at an appeals hearing may be $2,000 to $5,000.)

The only provision the law or the court makes for discouraging false testimony (some motives for which are here) is this one, which predictably appears at the very end of the application form:

The plaintiff signs below.

Applicants aren’t of course told what “perjury” is, and they’re certainly not told it’s a felony crime that carries a prison term (as it is and does in Arizona and many other states). Lying to the court is never sanctioned or prosecuted, anyway.

Recent posts on this blog were answers to dismissal by a doctor of laws of criticisms that the restraining order process is unfair. The process would have to be far more deliberative than it is, in fact, to be merely “unfair.”

The process is automated.

TALKING BACK to restraining orders

THEY’RE NOT JUST ABUSED BUT ABUSIVE

Tag Arizona

Fighting the Arizona Injunction Against Harassment

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