Tag restraining order appeals

What Restraining Order Defendants Need to Know That No One Ever Tells Them: The Truth Doesn’t Matter

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The ambition of this post, an intermission between considerations of graver subjects, is to dispel restraining order defendants’ faith in the value of “truth.” Defendants are led to believe that if they’re truthful in the defiance of lies or hyped allegations, all will turn out as it should. But truth is a false idol that answers no prayers.

If you haven’t yet had to swear this oath, you’ve heard it before on TV: “Do you swear to tell the truth, the whole truth, and nothing but the truth?” (Sometimes God and the word solemnly are thrown in for emphasis…maybe to suggest you’ll be struck by lightning if you distort the facts or omit any.)

The significance of this courtroom ritual is none, and taking it literally is for chumps.

Civil trials, especially the kind this blog concerns, do not weigh “truth”; they weigh testimony, along with evidence as it’s represented (in procedures that may span minutes only). The savvy defendant will think in terms of economics and marketing. “Truth” has no inherent value to a defense. Unless it conclusively proves something you want to prove, it’s totally worthless. Worse, it may distract and dilute the potency of what you’re trying to sell. Facts, besides, may not tell the truth. The word truth is a trap for the naïve.

What wins cases are successful representations, ones that work the desired effect (i.e., what wins is salesmanship not scrupulous reporting).

While the court asks for honesty, it doesn’t reward it. It’s what you say and how you say it that counts, not “the truth.” God isn’t the judge; a man or woman is, and his or her favor goes to the person who gives the most compelling presentation (i.e., sales pitch).

Why do lying plaintiffs win? They win because their representations were persuasive. Did they tell “the whole truth and nothing but”? They may have told none at all. (Restraining orders have reportedly been obtained by people using assumed names; they didn’t even tell the truth of who they were.)

What do cunning attorneys who represent lying clients (or any clients) do? They tell only those truths that support their stories…and no others. (They may lie, also—and vigorously.)

The fastidious defendant who finicks over every detail, who backpedals and carefully qualifies his statements (in the interest of complete and accurate disclosure), and who otherwise invests his or her trust in “the truth” grossly misperceives the nature of process.

Representations win court contests, not “the truth.” The truth doesn’t matter.

~ EPILOG ~

A few months ago, the writer spoke for an hour or so with a 30-something man who said he was an obsessive-compulsive. He had written that he was “starting to go downhill really fast” and needed help. “I will try to eventually explain,” he began, “but there’s such a long history of what happened.”

What he explained was that he’d been bullied by a woman many years prior, while they were in high school, and had been haunted and galled by the abuse ever since. He said she had tried to coerce him to have sex with a friend of hers, that he had refused, and that she had spitefully urged some guys to rough him up (one of them would later be convicted of murder, so this wasn’t bush league bullying). She had also greeted him with a sneer whenever they met after that, and flipped him the bird and yelled “Fuck you!” at him as he passed by. He had tried to reach an accord but had only been mocked. He said he never used to stand up for himself and was sick of turning the other cheek.

He impulsively ventilated rage that he had bottled for 20 years by calling the cell of the woman’s husband and leaving her a voicemail that called her a “rude, mean bitch” and that ended with a string of “Fuck you!”s. That was pretty much the extent of it, but he was handily represented as a stalker.

He wanted to know what pointers I could offer that might aid him in his defense against a restraining order petitioned by a woman who claimed to have no memory of the events he described and whose stepmother, he said, was a former lawyer who had prosecuted cases before the state supreme court and was, besides, the director of a “domestic abuse and physical violence organization.”

Yeah.

I repeatedly impressed upon him that reciting a history that spanned decades wasn’t likely to move a judge to anything but a yawn (or a rebuke) and that he should consider how to frame his story to put himself in the most favorable light, for example, by updating the context (and abandoning a rigidly chronological narrative).

Each time I interrupted, he said he understood and then recommenced his story, which stretched back to his anguished childhood. He was very earnest and conscientious, and continually paused and qualified his remarks with “Granted, I….” It was important to him, he said, to tell his “heart’s truth” (i.e., the “whole truth”). He wanted someone to sympathize, and I did. But I knew a judge would not.

I never heard from him again.

Copyright © 2015 RestrainingOrderAbuse.com

Low and Outside: An Umpire’s Story of Restraining Order Abuse (by an Underhand Screwball)

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As the story in this post shows, the phrase “America’s Game” has taken on a new meaning.

The common assumption—one that’s been vigorously enforced by advocates of the “abuse industry”—is that restraining orders are used to protect “victims” from “abusers.” So-called abusers are represented as violent husbands or boyfriends, or as stalkers, representations that account for the ubiquity of restraining orders and the ease of their procurement.

The man whose story of restraining order abuse appears below reports that restraining orders can be obtained by drive-thru in his state (California), like milkshakes and onion rings.

The restraining order against this father and family man was petitioned by his sister-in-law on behalf of her son, his nephew. The man affronted his sister-in-law by umpiring two of her son’s games (his job), contrary to her wishes. That’s the basis of her complaint to the court.

Fighting that complaint has now cost the man and his family some $15,000 (besides money he would have earned as an umpire), and his life’s on hold while he awaits an appellate court ruling that won’t emerge for six to 24 months.

Here’s his story, as he tells it:

I am a victim of restraining order abuse.

At the age of 37, I married the love of my life. It wasn’t until after we were engaged that I found out that most of my wife’s family didn’t like me. This is the foundation of my story.

I am a little league, travel ball, and high school umpire. I umpire because I love the game and to make some additional money on the side. I have been umpiring baseball for close to 25 years without any incident whatsoever, and most reviews of my performance have been complimentary.

When my wife and I were married, we resided in Orange County, California. Our residence was far from the rest of her family, which limited our exposure to her parents and her sisters. My wife has two sisters, one older and one younger. Her elder sister is a lawyer, and her younger sister is a stay-at-home mom.

The eldest sister and her family and I have a great relationship. The problem is with the youngest sister, who is a control freak. She likes to control everything, including how many cups of coffee her husband has a day, and if she’s denied control, she will go to whatever lengths she has to to get it.

Two years or so ago, my wife was offered a job that would move us nearer to the younger sister. This was something that excited my wife, because she loves her family very much and wanted to be closer to her nieces and nephews. When she decided to take the job, she contacted her sister and told her the good news. Her sister was excited and worked with my wife to find a house that was near hers, and she found us a great one.

After moving in, we were visited quite frequently by my wife’s little sister and her family. Every time she visited, however, she pointedly let my wife know about her displeasure with the way we parented our eight-year-old little girl. As a stay-at-home mom whose entire existence revolves around her four kids, she has read every book on parenting and considers herself an expert in child-rearing. I had even caught her entering my house and administering medication to my daughter without our consent, which I firmly put a stop to.

Back to baseball.

After we moved, I enlisted with the local little league to umpire. I worked for a local umpire company that was very pleased with the service I provided to them. It considered me one of its better umpires. One day, I was assigned to umpire one of my wife’s younger sister’s kids’ games. I checked with the league to see if there was an issue and was told no and that it had people umpiring their relatives’ games all the time. Just be neutral, I was told, which I always am.

My wife’s younger sister found out that I was going to be umpiring her son’s game and called my wife to tell her to have me remove myself from the game. When asked why, she stated she just wanted to keep things separate. My wife didn’t understand why and told her to not worry, that I would not show any bias toward her kids and everything would be great. He sister repeated that she just wanted to keep things separate. My wife still didn’t understand why, because her son and I had a great relationship, with no problems at all. At this point, the woman became hysterical and said, “Keep your husband away from my son.” My wife got very upset and hung up on her. After that, we found out that the younger sister called the older sister and asked what she should do to repair things with my wife because she had upset her.

Well, because there was no good reason for my sister-in-law to be upset, and because the umpire company needed me to cover the game, I did. There was no issue with the game, and I received many compliments afterwards. I ended up working another one of my nephew’s games a couple of weeks later, again with no issues. The next week, I got a call from my umpire assignor reporting that my sister-in-law filed a complaint with the league saying her son was “uncomfortable” with my working behind the plate.

At that point, I banned her and her son from visiting my house. This really angered her and inspired her to get back at me.

Meanwhile, my assignor and I got together and agreed I should no longer work any of her kids’ games because she was clearly sick. So I was assigned to other games at the park that didn’t involve her kids.

This wasn’t acceptable to her. She didn’t want me at the fields at all. So she took pictures of me there on the days I was scheduled to work and created a story that involved my hunting and stalking her kids, and affecting their mental well-being.

She went to court and was granted an ex parte restraining order.

When I was served the restraining order, the deputy sheriff told me that he had read it and thought it was the funniest thing he had ever seen. He said he had no idea why it was issued and told me to just stay away from my sister-in-law.

When the time came for me to appear in court to fight the order, I had an attorney and she did not. The judge clearly stated that he would not give her preferential treatment, even so.

This turned out to be completely false.

My attorney laid out a solid case to have the order dismissed, presenting facts that showed there was no proof of any stalking or harassment, and that up until the time of my sister-in-law’s going crazy, her kids and I had had a great relationship.

After about a two-hour hearing, the judge ruled against me. He stated that because my wife informed me that her younger sister had told her to keep me away from her kid that I was put on notice…yet persisted in showing up at the fields to work. Never mind that I was told two months after their conversation (my wife didn’t tell me right away because she thought it was just her sister acting crazy). The judge then went on to say that a mother had the right to determine who got to be around her kids and didn’t need a good reason.

Now since the restraining order was made permanent, my sister-in-law has been using it to harass me and my family.

She went to the elementary school and instructed staff there that I was only to be allowed to pick up and drop off my daughter, and she warned them that if I dared to attend any of my child’s awards ceremonies, school performances, science fairs, or other school functions, she would call the police and have me arrested. She has also been sending letters with false claims about police reports and bullying to the little league administration that regulates all of the local little leagues, and has effectively had me removed from umpiring any games at any of the area little leagues, even ones in which her kids don’t participate.

Her family has been following me and my daughter to public parks and then approaching me to tell me I am in violation of the restraining order. Also, they have changed their walking routes to school so they walk by me and my daughter, or by me as I walk home after taking my daughter to school, to accuse me of “pushing the envelope.” They constantly photograph me when I am waiting at school, and make up stories about me doing things to harass them or their kids.

We have filed a motion for a new trial with compelling evidence. It was denied by the same judge. We have also filed a motion to modify the order to allow me to attend my daughter’s school events since I am her primary caregiver while my wife is at work (I own my own business), and this too was denied, because the judge thought it would be too hard for the school and the police to enforce.

We have filed an appeal, and briefs have been submitted. We are currently waiting for the appellate court to consider the briefs and issue a ruling. We were informed that it can take anywhere from six months to two years for this to happen. Now we are investigating whether we have proper grounds to file a motion asking for expedition to move our case closer to the front of the queue.

To show you just how crazy this restraining order is, the local police department asked, when we dropped off our guns, what clown would sign such a stupid restraining order? They said they would hold our guns for as long as needed to get this thing appealed.

This is my story, which has been my life for a year…and counting.

Copyright © 2015 RestrainingOrderAbuse.com

*From “High Conflict Family Law Matters and Personality Disorders” by attorneys Beth E. Maultsby and Kathryn Flowers Samler:

high_conflict_indicators

Restraining Orders and the First Amendment: A Female Blogger’s Successful Appeal of a Restraining Order That Labeled Her a “Cyber-Stalker”

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“The First Amendment is FIRST for a reason.”

—Larry Smith, former attorney and indomitable muckraker

A recent post on this blog revisited the case of Matthew Chan, author of ExtortionLetterInfo.com (ELI), whose appeal of a lifetime restraining order is presently under consideration by the Georgia Supreme Court. A verdict is anticipated within the coming month or months.

Criticisms are handily represented as acts of terrorism to the courts, whose officers have been conditioned to pander to accusers. Anyone is a potential target of facile accusations, which are made in mere moments. Retirees and vegetarian soccer moms, for whom the cost of attorney representation is often prohibitive, report being implicated as violent menaces and tyrants.

This post reports a successful appeal waged by North Carolinian Cindie Harman, who was issued a no-contact order for allegedly “cyber-stalking” a mother and her minor daughter by publicly criticizing them in a blog. Mrs. Harman named the adult plaintiff’s daughter a “bully” of other children and opined that her behavior was influenced by her mother’s conduct.

According to the Associated Press, the mother, who owns or owned an Asheville-area water services company, was “sentenced to nearly three years in prison for faking thousands of tests designed to ensure that drinking water is safe” in 2012 (and also faced “conspiracy charges”), had “plead guilty in 2010 to mail fraud,” and “paid a fine and did community service after pleading guilty to misconduct by a public official after she was charged with embezzling more than $10,000 from Marshal when she served as town clerk there.” Mrs. Harman’s accuser, whose husband is a former magistrate, controverts the popular notion that restraining order applicants are innocent lambs seeking protection from marauding predators.

Mrs. Harman prevailed in her restraining order appeal, but the vindication of her character and her judgment of her accuser’s character didn’t come without a steep price—and that’s excluding attorney fees.

According to the blogger quoted in the epigraph, Larry Smith, a friend of Mrs. Harman’s and fellow comrade-in-arms:

During the long time this case was pending, I had been talking to Cindie on the telephone, trying to reassure her that she would win her case in the NC Court of Appeals. She was very nervous, inconsolable, dyspeptic, upset about it.

Being accused of stalking, let alone being accused of stalking a child, isn’t funny. It’s the kind of thing that breaks a person.

To be charged with stalking in North Carolina signifies you’ve caused someone “to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment.” (Note that the latter element of the statutory definition of stalking, “continued harassment,” is glaringly incongruous to the elements that precede it. The contrast between fear of “death [or] bodily injury” and fear of “continued harassment” underscores the slapdash, catch-all nature of stalking and related statutes that makes them not only objectionable but outrageous, and urges their legislative revision or repeal.)

The trial court that heard the restraining order case against Mrs. Harman, and whose backroom judgment was overturned by the North Carolina Court of Appeals, had ruled, “Defendant [Harman] has harassed plaintiffs within the meaning of [N.C. Gen. Stat. §] 50C-1(6) and (7) by knowingly publishing electronic or computerized transmissions directed at plaintiffs that torments, terrorizes, or terrifies plaintiffs and serves no legitimate purpose” (italics added).

Observe that even the court’s grammar was bad. The ruling should have read “transmissions…that torment, terrorize, or terrify.” Gaffes like this are hardly surprising considering how hastily and carelessly restraining order judgments are formed.

Mrs. Harman was said to have tormented, terrorized, or terrified the child plaintiff by referring to her as a “bully” (a “reason kids hate to go to school”) and tormented, terrorized, or terrified her mother by calling her a “crow,” an “idiot,” and a “wack” on a blog.

Terrifying indeed.

At the beginning of this year, Law Professor Jonathan Turley eagerly reported that the U.S. Court of Appeals for the Ninth Circuit ruled “Bloggers Have Same First Amendment Rights As Journalists” (cf. Robinson Meyer’s “U.S. Court: Bloggers Are Journalists,” published in The Atlantic, and “Reporters’ Privilege,” prepared by the Electronic Frontier Foundation). Judges in North Carolina seem not to have heard the news.

The decision came in a defamation lawsuit where the panel ordered a new trial in the case of Crystal L. Cox, a blogger from Eureka, Montana. Cox was sued for defamation by attorney Kevin Padrick and his company, Obsidian Finance Group LLC, after she wrote about what she viewed as fraud, corruption, money-laundering and other illegal activities.

The details may sound familiar.

In legal commentary presented in Chan v. Ellis, the appeal mentioned in the introduction to this post, Law Profs. Eugene Volokh and Aaron Caplan asserted to the Georgia Supreme Court:

The First Amendment protects the right to speak about people, so long as the speech does not fall into an established First Amendment exception (such as those for defamation or for true threats). This includes the right to speak about private figures, especially when they do something that others see—rightly or wrongly—as unethical.

Restraining orders and criminal stalking law may properly restrict unwanted speech to a person. But they may not restrict unwanted speech about a person, again unless the speech falls within a First Amendment exception. The trial court’s order thus violates the First Amendment.

This may also sound familiar.

Cindie Harman ultimately won the case against her, a case that should never have been entertained by the court in the first place, but a victory that should have reassured her that freedom of speech in our country is a revered and inviolate privilege has had the opposite effect.

Reportedly consequent to receiving threats against her person and having several of her pets poisoned, Mrs. Harman has removed her blogs. Even her Twitter feed is now “protected” and no longer accessible to a general audience. Mrs. Harman lives in the sticks and says if she weren’t armed, she’d be afraid to be alone.

She has been terrorized into silence.

Copyright © 2014 RestrainingOrderAbuse.com

*The author of this blog, too, has had a lifetime injunction imposed upon him by the court for communication “about a person” (communication that alleged misconduct, including criminal, by a public official). His 2013 trial, which was conducted in the Superior Court of Arizona and in which he represented himself, concluded less than four months before the Ninth Circuit Court of Appeals’ ruling in Cox v. Obsidian Finance Group. He hasn’t subsequently received any threats but has been monitored. His accuser, a married woman he encountered standing outside of his house one day in 2005 (and many nights thereafter), is believed to be among the first to read anything posted here.

Objections to Restraining Orders AREN’T about Restraining Orders

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Let’s get something clear: protests against restraining orders aren’t about restraining orders.

Granted, it’s a violation against decency and all things American for the government to casually curtail citizens’ freedoms without even consulting them first. But, seriously, who cares if a judge says one adult can’t talk to some other adult?

Objections to restraining orders are never about not being allowed to talk to the plaintiffs who were treacherous enough seek them. I would imagine (and I don’t strictly have to imagine) that most restraining order defendants’ feelings toward the people they’re prohibited from talking to are considerably less than friendly, anyway.

Here’s what objections to restraining orders are about:

  • On a modicum of evidence of “threat” or none at all, a spouse or boy- or girlfriend can be ejected from his or her home (even if s/he holds the deed) and forbidden access to his or her children, pets, money, and property on pain of police arrest.
  • Allegations ranging from harassment to domestic violence can be permanently stamped on defendants’ (that is, recipients’) records, again based on a modicum of evidence (very possibly misrepresented) or none at all. An allegation amounting to nothing more than “I’m afraid” is sufficient to obtain an “order of protection,” the implications of which phrase alone signify stalking, violence, or violent intent.
  • Restraining orders are public documents that may be accessible to anyone, including employers and would-be employers. Records of their issuance remain on public view even after their expiration and may be entered into public registries.
  • The truth or falsity of allegations that may be as extreme as assault with a deadly weapon, child molestation, or rape is determined according to the same civil standard of evidence as contract and insurance disputes: “preponderance of the evidence.” Regardless of the extremity of allegations on restraining orders, neither a trial by jury nor “proof beyond a reasonable doubt” is ever required for their validation. If a judge feels there’s a better than 50/50 probability that allegations are true, “preponderance of the evidence” is satisfied.
  • Allegations on restraining orders, which may be either criminal or criminal in nature and may besides be entirely false, indefinitely remain on defendants’ public records whether they’re found meritorious or not, that is, even baseless allegations that a judge ignores are never stricken from the record but remain on public view and may reasonably be interpreted as true or valid by anyone who consults those records.
  • The restraining order process is conducted ex parte, which means orders are issued based on one party’s claims alone, and these may be both damning and egregiously false.
  • Statutory penalties for lying to police officers and judges (false reporting and perjury) are never enforced, and allegations of lying are furthermore discounted by the courts.
  • Federal grant monies (average grants being in the neighborhood of $500,000) are awarded to police districts and courts in return for their consenting to have their officers “educated” about how they should respond to allegations of fear and violence. Mandated responses include accepting allegations of violence by women at face value (that is, they’re not to be questioned). This mandated response roughly translates to allegations by anyone being recognized as legitimate.
  • Irrespective of the nature of allegations entered against a defendant, which may be innocuous or false, that defendant is subjected to traumatizing menace, intimidation, and public disparagement by the state. S/he is treated generically like a fiend, the paradigmatic basis for which treatment is the domestic batterer whose conduct restraining orders were originally conceived to check, despite allegations of violence being rare today relative to the vast number of restraining orders issued (estimated at two to three million per annum).
  • Restraining orders, which circumvent due process entirely and which originate in civil court and are therefore subject to no standard of proof, may implicate defendants as criminals and may have criminal consequences if “violated.” Alleged violations, also, may be subject to no standard of proof. In other words, a defendant can find him- or herself locked up, never having been granted his or her constitutional right to a trial and very possibly on maliciously false grounds (based on a decision formed by the court prior to even knowing what that defendant looked like).
  • Opportunities to contest allegations on restraining orders, which defendants may literally have to ask for within a brief window of time, may be assigned no more than a few minutes, and defendants are never provided counsel. An innocent defendant forced to contest utterly malicious allegations may face the quandary of living with them permanently stamped on his or her public record or shelling out $2,500 to $5,000 for an attorney’s representation, which measure is no guarantee of vindication and which measure few can afford even if they’re conscious of the need (which few are).
  • Restraining orders are usually free for the asking and may be petitioned serially or multiply by a single applicant, making them marvelous instruments of harassment and torment. There’s no statutory limit on the number of restraining orders a single applicant may apply for, no penalties for having false or groundless restraining orders dismissed, and of course no penalties for lying.
  • Restraining orders impose no limitations on the actions of plaintiffs (that is, applicants), leaving them free to taunt or stalk defendants, or bait them into violating orders of the court.
  • Courts pander to and reward even those guided by spite, jealousy, malice, and/or personality disorders or mental illness. The interchange between a judge and a plaintiff is no more than five or 10 minutes in duration and is more procedural and perfunctory than probative. A judge authorizes a restraining order, which may permanently alter many lives for the worse (including those of children), based on knowing nothing whatever about its defendant, who’s just a name on a form, and almost nothing about its petitioner, who may be disturbed or even insane.
  • Upon plaintiffs’ successfully making false allegations stick once (or baiting defendants into violating false restraining orders), they now have a foundation upon which to make further falsehoods entirely plausible. Thus can innocent defendants’ lives be scarred or fractured irreparably by chronic abuse (a single potent lie, or a series of them, can be nursed for years). And these defendants may have been the actual victims in the first place.

Most people (including authorities and officers of the court) aren’t conscious that restraining orders are abused, let alone conscious of how they’re abused, why they’re abused, or how extremely they can be abused.

It’s hoped that this synopsis makes the means and motive for restraining order abuse clearer to those in the dark, at sea, or on the ropes. Whether you’re a legislator, a judge, a police officer, an attorney, a counselor, a feminist or feminist partisan, a victim of restraining order fraud, or just someone with reasonable expectations about how the justice system operates, whatever your perceptions were about restraining orders and their administration, those perceptions were probably either naïve or wrong.

The ease and convenience with which restraining orders may be obtained make their attractiveness as instruments of passive-aggressive castigation, spite, and vengeance irresistible.

You’ve seen that game carnival-goers are invited to take a crack at that gives them three tries to drop a seated person into a pool of water? Restraining orders are sort of the same thing, only the cost of a ticket is free, a player doesn’t need to be able to hit the broadside of a barn, and the water beneath the target is scalding.

Copyright © 2013 RestrainingOrderAbuse.com