Most people have heard of the legal remedy called a temporary restraining order, TRO. Basically, a TRO is an emergency court order prohibiting a person or entity from engaging in certain behaviors.
A petitioner essentially files an affidavit swearing under oath that he is in imminent danger and/or will be irreparably harmed if the court does not issue the TRO. If a judge signs the TRO, a hearing is scheduled within 10 days. Copies of the TRO are given to the claimant, who then arranges for someone to serve the TRO on the other party, the defendant. Generally, the TRO imposes specific limits on the respondent until the hearing.
At the hearing, the judge decides whether there is evidence to support the claimant’s allegations. The Respondent is allowed to present his side of the case. If necessary, a full trial on the merits is scheduled. Ultimately, the judge must decide whether to enter a permanent injunction against the respondent or dismiss the motion.
As a Civil Division judge, the most common type of request for a TRO that crosses my desk is for a civil harassment restraining order. This usually involves disputes between neighbors, roommates, coworkers, ex-coworkers, and casual acquaintances.
Petitions alleging civil harassment often contain extremely serious complaints involving threats of violence and theft, burglary, assault, assault, and other acts of intimidation and abuse.
Normally, when I issue a TRO, the conflict between the parties defuses. This is not always the case, however, and this is an inherent problem.
Law-abiding people will comply with a TRO. Fraudsters, drug addicts and the mentally ill often won’t – a piece of paper signed by a judge means little to them. The threat of penalties, including incarceration, has minimal deterrent effect.
Especially in cases where the respondent abuses alcohol, drugs, or is mentally ill, the applicant should not expect rational behavior. Applicants can hope, but not expect, compliance.
Law enforcement officials and the courts do everything in their power to enforce civil harassment restraining orders. However, issuance does not and should not replace common sense and taking other necessary safety precautions.
When I served on the Bernalillo County Metropolitan Court, I presided over hundreds, if not thousands, of domestic violence cases. I almost always issued a no contact order against the accused, ordering him to stay away from the alleged victim. It should be noted that the alleged victims would often have taken other security measures. They didn’t just rely on my no contact order to protect themselves from harm.
Carolyn N. Ko, in “Civil Restraining Orders for Domestic Violence: The Unresolved Question of Efficacy”, wrote “as only a handful of studies have examined the question of effectiveness, the deterrent effect of restraining orders remains inconclusive”. Southern California Interdisciplinary Law Journal, Vol. 11:361.
The same uncertainty exists in cases of civil harassment. So while a TRO may be useful, it should not be considered a panacea for someone seeking protection from another real or potentially dangerous individual.
No one wants conflict in their life. When this happens, we each have to deal with it. When a situation becomes dangerous, the courts and law enforcement are ready to help as much as legally possible. TROs should be part of an overall approach that incorporates common sense and all other safety measures.
Judge Daniel Ramczyk is a judge of the Second Judicial District Court. The opinions expressed here are solely those of the individual judge and not of the court.