The Freeze Peach Series, part 1: Gamesmanship

(This piece is easily able to stand alone, but if you are interested You can read introductory part 0 here. Additionally, this piece is informed heavily by the scholarly works of UCLA professor Eugene Volokh and Loyola professor Aaron H. Caplan, as well as a host of other articles and some original research.)



In December of 2005, Colleen Nestler submitted an unfortunate 7-page affidavit to the Santa Fe County District Court requesting a restraining order against TV personality David Letterman. In her affidavit, Nestler alleged that for over a decade Letterman had been responding to Nestler’s “Thoughts of Love” through coded messages in his television broadcast, expressing that he wanted to marry her.

Letterman and Nestler had never met. Indeed, Letterman had until then never even heard of Nestler. Nevertheless, the judge granted Nestler’s request – barring Letterman from all contact with Nestler, ordering him “Not to think of [her]” and to “release [her] from his mental harassment and hammering.”

In granting this order, the judge (by default) required Letterman to hand over any firearms he may own, and be placed on a registry of domestic abusers – which, had Letterman any career outside of entertainment, would likely have reflected rather poorly in a background check.

When the judge was asked to explain why he’d granted such a meritless order, he replied simply that Nestler had filled out all of the paperwork correctly.

One might argue that there’s no real harm done by this sort of thing – it is after all, David Letterman. But Nestler could just as well have convinced herself that these coded messages were coming from, say, the cashier at her local convenience store. That cashier would then have had to find a new job, lest Nestler decide to buy milk while he’s on duty.



Unwarranted orders like these, while generally not as high profile, are by no means uncommon. Abuse Prevention Restraining Orders are surprisingly easy to acquire, can limit a broad range of otherwise perfectly legal behavior, and hold a surprising amount of weight in tangentially related court hearings. The Illinois Bar association has called them “part of the gamesmanship of divorce proceedings.” The California Bar association has conceded that such orders are often used for retaliatory purposes, or to “jockey” for advantage in custody matters.

Many of these problems have been vaguely understood or recognized for over 50 years, but repairs have been slow.

In the meantime, legislatures have enacted a newer class of orders that, unlike Abuse Prevention Orders, don’t even require an ongoing relationship or cohabitation. These are termed anti-harassment orders, and in many respects their breadth is even larger. Though not quite their intent, in many states they can effectively bar someone from doing anything someone else doesn’t like. By design, they are worded so as to prevent ingenuity on the part of a defendant, and consequently, inevitably allow for ingenuity on the part of anyone wishing to misuse them. (A host of recent cases has seen public figures leverage these orders to silence critique – most recently, the Georgia Supreme Court struck down a case that had, for over a year, barred a member of a copyright troll watchdog group from saying anything about a poet with a penchant for threatening legal action against anyone who made use of her work.)

While the standards established by these laws run contrary to most prior standards of American legal practice, they are not so easy to fix. And the process will likely go on for another few decades as supreme court rulings delineate what legislatures have purposely declined to. While the results of these changes in law seem almost absurd, the reasons for the changes are not. The situation is such that a sequence of perfectly reasonable changes to law, have lead, in congregate, to a jarringly unreasonable result. Some history:

1) History

In the 1970s, US anti-harassment orders (which, to be blunt, allow any citizen to try to bar any other citizen from doing almost anything they can make a case against letting that citizen do) did not exist. Nor did the modern equivalent of criminal harassment statutes. These statues were preceded by the Domestic Abuse Prevention Order, which came about with the emergence of a proper understanding of domestic abuse.

This proper understanding obsolesced the old view of abuse as a series of unrelated incidents akin to assault and battery merely happening to occur in the context of a domestic situation, and replaced it with the more accurate appraisal of abuse as a means of controlling a victim through whatever means an abuser deemed necessary. This control often consisted of a mixture of behaviors, including intimidating a victim into submission through violence or threats, leveraging emotional abuse to make the victim doubt their own ability to function independently, cutting a victim off from their support network (friends, family, etc), and instilling reliance by controlling a victim’s finances.

A more accurate portrait of a victim could then be formed: Indigent, scared for their or their children’s safety, perpetually self-doubting, emotionally and financially reliant upon their abuser, and with nowhere to go for help. What was needed, was a way for victims (henceforth referred to as ‘petitioners’) to escape whatever shackles an abuser might be placing upon them, at as early a stage as possible.

Although the allegations required for obtaining an order were to be ones which would warrant criminal prosecution, the cohabitation often inherent in domestic violence cases meant that criminal prosecution was a bad fit, as the petitioner could find themselves in substantial danger between the time that they filed a police report, and the time they were assigned a prosecutor. A judge might issue an injunction in the hopes of deterring any retaliation (an injunction is a judicial order that prevents some party of a hearing from doing whatever a judge deems likely to complicate matters for as long as the hearing goes on), but even so, the burden of proof for criminal trials is high, and the petitioner could still stand the risk of substantial retaliation by the accused should the court be unable to determine their guilt beyond a reasonable doubt.

Instead, legislatures piggybacked on longstanding legal precedent allowing injunctions for civil cases. Civil cases generally have a much lower burden of proof, and have the further advantage of not requiring a state prosecutor (the assignment of which can serve as a bottleneck that delays proceedings) to represent the petitioner .

This stood to present a new problem though, as lack of a state assigned prosecutor could also serve as a detriment for the petitioner, who would be unlikely to know their way around the law. To alleviate this problem, Restraining Order applications were made as simple as possible for self-represented petitioners. Often requiring filing a very simple form and affidavit. Beyond that, free legal help from tax-funded organizations became a requirement to help victims in most states.

(These advantages apply only to the petitioner. The defendant has no simple forms they can file in their defense, or easily understood documents that outline their rights. There are no organizations, tax-funded or otherwise, that offer them free legal assistance.)

Because of the potential for retaliation by a defendant upon being notified of the petitioner’s applications, injunctions are granted ex-parte. Meaning, as soon as a petitioner asks for an order, it is granted; and regardless of whether or not the order is ultimately deemed merited, a defendant can be held criminally liable for anything deemed in violation before they have an opportunity to challenge the order. Generally, if the defendant does challenge the order, they must do so within ten days. And if they fail to successfully defend themselves, the order is granted for a year. At the end of the year, the court reviews the matter, and determines whether or not the order should be extended for some other number of years.



In recognition of the breadth of unique situations any petitioner might find themselves in, restraining orders include (in addition to the simple check boxes mandating the petitioner is to refrain from abusing the victim, contacting the victim, or approaching within some specified radius of the victim or their dwelling or workplace) a write-in clause allowing a judge to order the defendant to refrain from whatever else the judge deems prudent. As you can imagine, and as we will soon see, it is the existence of this write-in clause that most often causes problems.



At the time these statutes were designed, it was presumed that restraining orders – being civil in nature and intended only to prevent one person from abusing another – were unlikely to substantially infringe on a defendant’s civil rights. Accordingly, legislatures reasoned that such cases did not require so formal a proceeding as a full blown jury trial, which would be time consuming and expensive to assemble. Instead, cases were to be heard by a single judge.

The aggregate result of all features listed above is that Restraining Orders have a low burden of proof – sometimes explicitly “guilty until proven innocent”, they are informal, quick, heard in front of a single judge with no jury, and capable of preventing a defendant from a host of what would otherwise be legal activities.



Eventually, courts came to realize that the controlling conduct which formed the basis of domestic abuse prevention orders was not limited to relationships or cohabitation situations. And so new statutes were instituted, borrowing heavily from the legal precedents and expectations set by domestic violence orders, which allowed citizens to request restraining orders against neighbors, stalkers, landlords, tenants, their childrens’ boyfriend, etc, upon some showing of “harassment” from that person. Most states adopted some minor variation of the following definition of harassment:

“a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.”

If this definition seems to you like it might be vague or even circular – don’t worry, it’s supposed to be. The last bit borrows from misdemeanor criminal harassment laws (as opposed to civil injunctions), and was worded “in a designedly general way … as a hedge against the ingenuity of human beings in finding ways to bedevil their fellows [with] forms of harassment that cannot be anticipated and precisely stated in advance.”

In effect, this means you can be slapped with a restraining order (or even charged with criminal harassment) for behavior which had, up until someone reported you for doing it, not been considered harassment. More amusingly, because these statutes are per-state, they can hold you liable for behavior which other states have already deemed not to be harassment, simply because your state has not yet definitively decided the behavior does not constitute harassment.

Beyond that, most anti-harassment statutes include in their wheelhouse behavior outlined in the closely related domestic abuse prevention orders which serve as their legal basis.



2) Interlude: Word Games



Put yourself in the position of a judge about to rule over a restraining order hearing. For reasons that will be explained in later sections, you have very little time to devote to any single restraining order case. You have in front of you the following hypothetical affidavit:



“John will not leave me alone. He demands that I stay with him at school, and demands that I avoid my friends and family to be alone with him for hours at a time. He threatens me if I don’t do as he says or if I even speak without his permission. He frequently threatens to make flagrant accusation which could get me expelled from school. If I attempt to avoid him, he harasses my friends and family to find out where I am. I have repeatedly told him I do not wish to hear from him, but he insists on contacting me almost every single day. This has been going on for EIGHT MONTHS. I am concerned for my friends, my family, and my self. I ask that John stay at least 500 yards away from me, not contact me, my friends, my family, or my school.”



As this is an ex-parte hearing, the defendant is not present. You have just the petitioner in front of you.

You inquire of the petitioner as to the nature of her relationship with John.

She replies “We’re not in a relationship. He just goes to my school. I looked it up on the state website and it said I need to get a harassment prevention order instead of an abuse prevention one if we’re not dating.”

Okay, hypothetical situation over. Go check out your state’s anti-harassment statutes. Based on those – and doing your best to put any personal prejudices you may have aside – do you grant or deny this request? Bearing in mind that it is within your power to grant part of the request, and deny others; if you grant only parts, which parts do you deny?

If you noticed that barring John from contacting the petitioner’s school might infringe on his first amendment rights – excellent job on protecting the first amendment!

If you grant the remainder of the requests: congratulations, you just slapped the petitioner’s math teacher with a temporary restraining order, because he gives the petitioner detention and calls her parents when she skips school. For the next ten days until his hearing, the math teacher may face criminal charges for going to work, and the petitioner can successfully avoid her final exam.

Note that at no point did the petitioner lie – she was quite careful with her wording, and even so, perjury is rarely prosecuted. The purpose of this exercise was to outline ways in which orders meant to protect victims from whatever form of harassment, control or intimidation an ingenious stalker may devise, can just as readily be leveraged by an ingenious petitioner for nefarious ends.

You could even try it yourself against pretty much anyone you don’t like (don’t though). It would be a really shitty thing to do, but It costs you nothing, is purposely made easy for you, and is exceedingly unlikely to legally backfire. If the person you take an order out against decides to hire a defense lawyer, you can cost them a few thousand dollars. If they don’t hire a lawyer, it ups your own chances of winning substantially.

You can even further increase your odds by accusing them of violating the ex-parte order before they get a chance to defend themselves at the extension hearing. It doesn’t matter if they have or haven’t violated, that won’t even be looked at by a clerk for another few weeks. Judges aren’t supposed to take pending violation claims into account while considering an extension, but they’re only human, so they probably will. Better (well, worse) still, the more absurdly unwarranted, unjust, or vague you can get the judge to make the order, the more likely your target is to be deemed in violation without knowing it, and the more likely they will have to spend considerable sums of money on a defense lawyer and face criminal charges which could affect their future employment prospects. If it comes to that, you have two further advantages:

1) Violation of a restraining order is a criminal offense. So you don’t have to pay anything to fuck with your target. The state prosecutor is more or less obligated to fuck with them for you.

2) The crime the target is being charged with is “violating a restraining order.” Essentially, contempt of court. Because of something called the Collateral Bar Rule, the criminal case does not depend on whether the order being violated has been properly issued. Even if in a criminal trial your target can clearly and beyond a doubt prove that the order you took out against them should never have been issued, your target is still bound to be punished for violating it.

Doing this does of course, require that you’re not bothered by further burdening an already overburdened system by diverting legal resources from actual victims of abuse who are in legitimate need of relief with no other way to escape a tragic and dangerous situation.

3) Diverting Legal Resources From Actual Victims of Abuse Who Are in Legitimate Need of Relief With no Other Way to Escape a Tragic and Dangerous Situation



Since their inception, the popularity of Restraining Orders has exploded. This might highlight an overwhelming need for their existence, or it might not. Opinions here vary, and depending on methodology, different studies come to contradictory results, maintaining that restraining orders can be anywhere from 85% effective, to 21% likely to make things even worse for the victim. (if you are reading this as someone in legitimate need of a restraining order, please do not be deterred by these sorts of things. Go and speak to a victim’s advocate in whatever way you deem least risky and try to plan how to get out of your situation safely in whatever way makes most sense for you as an individual)

What is clear is that the legal system is not equipped with the resources to equitably handle these cases.

Most people, upon being served with an ex-parte restraining order, expect to get some semblance of a fair hearing. Because the system is so overburdened, there is no state in which that is likely to happen if the defendant doesn’t have a lawyer. And in most states, it won’t happen even if the defendant DOES have a lawyer.

Here’s the rundown:

The judge has a LOT of cases to hear, so most restraining order hearings last less than 5 minutes. The judge hears what the petitioner has to say, then hears what the defendant has to say, then decides whether or not to grant the order.

Because the huge majority of people in restraining order cases are low-income, they cannot afford legal representation. As such, they don’t have anyone to tell them if their fundamental rights are being violated. Nor does the judge have anyone to rely on to cite relevant case law that would guide them away from an unconstitutional ruling (this is generally what lawyers do).



Even if a defendant *does* know when their fundamental rights are being violated, they don’t know how to properly preserve an issue for appeal. Or make sure that key evidence relevant for the appeal makes it onto the record.

Speaking of evidence, most states maintain that a judge needs to look at it. Except if the evidence would clearly be a waste of the court’s time. Judges tend to interpret that last bit broadly, because their time is so limited. So they might decline to look at some or maybe even any of the evidence. Similarly, judges are supposed to allow cross-examination, except when it might be used to harass or intimidate the petitioner, or again, when it would likely be a waste of the court’s time. Again, a judge can interpret this broadly.

It’s up to the defendant to object when the judge refuses to look at evidence – not so much to compel the judge to take the evidence into account, as to preserve the due process issue on appeal.

Speaking of appeal – the huge majority of people don’t. They don’t know when they’re supposed to. And even if they do, most defendants are low-income, and cannot afford the high cost of legal representation on appeal. And even if they can, appeals usually take over a year to go through. Since that’s longer than the restraining order itself lasts, most people opt to just wait it out and hope they can get a fairer hearing next year when the issue is up for extension.

Worse still, judges KNOW a defendant is unlikely to appeal. Statistically, a defendant will appeal less than 1% of the time, and when they do, the standard of review the appellate court uses is by law extremely tilted in favor of whatever ruling the judge already made. There’s a very low chance that improperly issuing an order will result in the blemish of an overturned ruling on a judge’s record. However, if a judge properly (in the legal sense) declines to issue an order, and the petitioner then ends up suffering physical harm as a result, this has potential to reflect quite poorly on the judge, and so the judge has considerable incentive to issue orders even if the merits are iffy, and even on legally questionable grounds.

Finally, the fact that orders issued on such legally questionable grounds get so rarely appealed means any given gap in a statute’s wording can take decades to fill. Not because no one is suffering from the rulings, but because so few people the means to appeal them. Judges are then free to take advantage of any ambiguity in the law to speed up trials and err on the side of caution. And often times they will opt to speed up a trial and err on the side of caution even where there is no ambiguity whatsoever in law, again, because they know the defendant is unlikely to appeal.

Sometimes, this will result in a judge plainly ignoring all evidence and depriving a defendant of any due process rights because – fuck it, they don’t want to deal with this. To borrow a story from my defense attorney:



“Last week at a nearby District Court at a 209A hearing a judge fell for the most obvious and transparent stunt by the Plaintiff: tears. There was no physical abuse. There was no threat of physical abuse. There wasn’t even a hint of the possibility of physical abuse. But instead of considering the merits (or lack thereof) of the case and instead of at least attempting to apply the definition of abuse to the facts, as prescribed by law, the judge looked at the Plaintiff’s tears, looked at the defense attorney, interrupted him, and angrily said: “Counsel, I’ve heard enough!! Can’t you see that this Plaintiff is terrified by your client??” The judge then extended the 209A order for one year. A gross injustice, especially considering that the Plaintiff in this case was an actress with enough stage experience to be able to turn the tears on and off at will.”



From what I gather, that defendant didn’t have the means to appeal.

4) Gamesmanship

As a result of the example offered in the interlude, you may perhaps be incredulous that someone would leverage the legal system for petty revenge. Indeed, the hypothetical role-play scenario was (as far as I know) just that, hypothetical. (The one with the actress was real though)

Here’s the thing though – even presuming people are fundamentally not dicks, they do still have incentive to abuse Restraining Order for other purposes. Specifically, because their attorney encouraged them to!

People get divorced. If they have children, and want custody, getting it is a lengthy process. As is access to a mutually owned car or house in the interim. Restraining Orders are, by design, easy to get, low risk, and in no way a lengthy process. If you want custody of your children, one way to get that is to accuse your partner of being abusive. But whether or not a divorce judge agrees this is the case is tricky business. And even if they do, it doesn’t follow that the accused should be barred from access to their house or car in the interim. Your partner can very well take the car if its in their name.

However, if you get a restraining order against your partner, you can prevent them access to their house or car, freeing you to use it in the interim (you can even ask a judge to specifically write this in to the restraining order). The mere existence of an abuse prevention restraining order against your partner will reflect rather negatively on them during divorce proceedings, and can open an avenue of arguments for your attorney to make. If this restraining order bars your partner access to their children, all the better, as divorce courts are likely to grant custody to whoever has been the primary care-giver for the longest period of time (by default, that’s going to be you). So an attorney may encourage you to get one. To them, it’s just part of the “gamesmanship” of proceedings.



This isn’t to say that the orders are never warranted. But they are too often misused. If you want to get a sense of how often that’s the case – just ask a mediator. Many will avoid cases where an RO exists, and many have ways to tell if there’s an order issued with ulterior motives at play.

5) Next Time

In the next parts of this series, we’ll look take a look at the interplay between state and federal laws on ROs. The constitutional issues that tend to arise, the functions of appellate and supreme courts, and a few interesting cases.

On a side note as a minor update on my proceedings – the secret thing I asked an additional $5,000 for went well. I won, but I can’t tell you what it is. The representation on that was “pay-what-you-can.” The invoice so far came out to ~$11,000, of which I have paid $6,200.

The appeal is also going well, though we’re cutting it kind of close on finances. I may be able to give something of an update on that soon, but I can’t promise anything unfortunately. In the meantime, if you’d like to chip in, you may do so here. I’ve increased the financing cap accordingly. And as before, anything that turns out to be in excess will go to the charity of the community’s choice (personally, I’m partial to FIRE).



Sorry this thing came out so long, I’ll take additional pains to make the next part shorter (though I wrote a 10,000 word blog once – so again, no promises).

Thanks again for everything – till next time!