Defense Against Restraining Orders and Stalking Orders

John Maher: Hi. I'm John Maher. I'm here today with Ted Lothstein of the Law Office of Lothstein Guerriero, with offices in Concord and Keene, New Hampshire. Lothstein Guerriero represents people charged with crimes throughout the state of New Hampshire in both state and federal court, in trial courts, and on appeal.

In part one of our discussion, we talked about the defense against domestic violence and domestic assault charges. Now, in part two, we're talking specifically about restraining orders and stalking orders.

Welcome, Ted.

Ted Lothstein: Thanks for having me.

Restraining Order and Stalking Order Laws in New Hampshire

John: Ted, tell me a little bit about restraining orders and stalking orders. What are the restraining order laws in New Hampshire? What purpose do they serve?

Ted: These are two different types of civil actions that a person can institute in a New Hampshire district court, which we also call circuit courts now. These are civil cases where a person feels they're being bothered, harassed, abused by someone and wants to try to get some protective order to keep the other person away from them.

We have two different vehicles for that. They implicate a lot of different laws and, in turn, different ways to them defend them. Basically, they separate into civil stalking petitions and civil protective orders ‑‑ domestic violence protective orders.

First of all, what they have in common...I've said the word "civil" several times. These are not criminal charges. These are cases that are brought in the same district court where a criminal charge can be brought, but it's basically a sort of mini lawsuit of one person against another. It is not the state of New Hampshire versus the defendant. The state of New Hampshire is not involved.

That being said, often these proceedings are a prelude to a criminal proceeding. A person who feels like they're the victim of stalking for example, he or she may go to a district court and seek a stalking order to protect themselves from that. They also may go to the police. The police might start an investigation. Maybe it will take a while for the police to finish their investigation.

Sometimes, I start with a client who comes in with some paperwork saying that all he or she has against them is a civil stalking petition that they're trying to fight off. Before we know it, there's a call from a police officer, the person has to turn themselves in, and they're facing criminal charges.

To further elaborate on the similarities, because these are civil cases, the person that brings a petition has to prove it. They've got to go to court. They've got to prove by a preponderance of the evidence ‑‑ that's a much lower standard than a criminal trial ‑‑ that they're entitled to a protective order or a stalking order.

Now, the difference between these two basically has to do with the relationship between the plaintiff and the defendant. Protective orders -- these are available only to people who are household members or family members – so a husband could bring a protective order against a wife. It could be a boyfriend and girlfriend…

It doesn't matter if they never had intimate relations. If they were in a relationship, that is not just a platonic friendship, then one of them could bring a petition against the other.

John: It would not to be for just two roommates living together?

Ted: Exactly, that would not be available to two roommates.

John: Then you have family members or household members...

Ted: I have to correct myself on that. We have two different categories of people. It can be either people who are in an intimate relationship and then they don't have to have ever have lived with each other or even, like I said before, had sex for that matter, as long as they were in an intimate relationship.

Or, it can be household members. For household members, those can be roommates. It's just people cohabiting with each other.

Now, there are some limitations here. One is that minor children, which in New Hampshire means under 18, cannot bring restraining orders against their own parents, which is probably going to come to a relief to any parents listening to this show.

But that's about it. Stalking orders are available to a very different category of people. This is a person who feels that on two or more occasions another person for no legitimate purpose has bothered them in some way, called them, texted them, showed up at their house, showed up at their place of work.

The people may not even know each other. They don't have to have been in an intimate relationship and they certainly don't have to have ever lived with each other. In fact, unfortunately, sometimes stalking situations occur with a stranger who for some reason has a fixation on another person.

That's how these two groups of petitions separate out. Procedurally, they have a lot of similarities. You don't need a lawyer to file for either one of these petitions. But, as I'll explain, it might be beneficial to have one.

You just have to go to a district court, fill out some paperwork and most importantly explain what facts you think entitle you to a stalking order or to a domestic violence protective order.

With respect to a domestic violence protective order, you have to allege that there's been some kind of act of criminal abuse, like a criminal threat or a simple assault. It's not enough just to say that the person has annoyed you.

John: Or even threatened you?

Ted: Well, a threat would be enough, if it was a criminal threat.

You also have to show that whatever happened presents a credible threat of violence. There are threats that can be made. A person could say, "I'm so angry at you I could kill you," or something like that, and no one could possibly construe that to be a serious threat.

That kind of thing would not get a person any domestic violence protective order. In a stalking petition, you don't have to allege some kind of crime, what you have to allege is two or more instances where the other person, for no legitimate purpose has appeared -- some of the legal languages -- in proximity to you or contacted you.

It could be repeated phone calls, text messages, visits at work that are unwanted after being told not to come there, visits to the home after being told not to come there.

After that petition is filed, this is what makes both stalking petitions and domestic violence restraining order petitions quite alarming to my clients, most of which are defendants on these cases. After it's filed, the judge can and usually does issue an ex parte order. Ex parte means that there's only one party appearing before the judge.

It's not an adversarial proceeding. It's just the plaintiff, the person who wants the protective order appearing for the judge and telling the judge what happens. Obviously, there's no one there to cross-examine them, to question them, to present other evidence, to tell a different side of the story.

The judge can issue what's called an ex parte order, and the police basically show up, and serve it on the defendant. All of a sudden, he finds himself restrained from having any kind of contact, direct or indirect, with the plaintiff. Often, these orders will say, "You can't come within a certain distance," like a hundred feet or a hundred yards. It'll say that, "You can't appear in proximity with that person."

So if you show up at the grocery store and they happen to be there, there could be a dangerous situation for the defendant. The orders will say that, "You can't have contact, direct or indirect," meaning that, you can't have someone else give any message to the person, not even a pleasant message like, "Sorry, I won't bother you anymore."

What is the recourse here?

Usually, a hearing will be scheduled within about a month. People will come to me and say, "I have to wait a month? I'm now restrained from going into my own home." The answer is, "No," because we have this unusual procedure where a person can get an ex parte order from a judge.

The defendant has a right to request a five‑day hearing. That means that the date that they request that hearing, the actual hearing has to be within five days. Now...

John: This is the person who's been served with the restraining order? They have the right to a five‑day hearing?

Ted: Exactly.

After Receiving a Restraining Order

John: Is that the first step then that somebody should take, if they've received the restraining order from a police officer? I would imagine that their first impulse is going to be to want to contact the person and say, "Hey, why did you slap me with this restraining order?" Of course, they can't do that. Is that the next step in the request to one of these five‑day hearings?

Ted: It depends on what the hearing is going to look like because the actual hearing is quite different than an ex parte hearing. The actual hearing is with both parties, there in front of the judge, both sworn under oath, both can call witnesses. Not only can they call witnesses, but they probably would need to because this is a real court hearing.

You can't just go there and tell the judge a bunch of hearsay that you heard from your friends. You have to have the people there who have personal knowledge with the events that they're talking about.

In many cases, we do want to request a five‑day hearing because this is so disruptive to the person. They can't wait a month to get back into their house or have their liberty restored to them.

But, if the way we're going to defend this is to call witnesses, and before I'm going to ask for a five‑day hearing, I'm going to make sure that I finished my investigation. That I know which witnesses I’m going to call, that I know that they are available for court, that I know whether we need to subpoena them or whether they'll voluntarily come.

Because I could have a perfect alibi that proves that my client never went anywhere near this individual. But if my alibi witness happens to be in Florida this week, and I request a five‑day hearing, I may have just done a great disservice to this client.

Does that make sense?

John: Yeah, absolutely.

Steps to Defend Against Restraining Orders

What are some other steps that somebody can take to get out from under a restraining order?

Ted: The first thing we're going to look at is, "What's alleged here?" Because we have some really protective case laws that says that, "A person who filled out the request for a restraining order or stalking petition -- the evidence that can be put on the hearing is limited to what they're alleged in their petition."

That benefits a lot of my clients because a lot of people who bring these petitions, first of all, they're certainly not lawyers, and they're often not very sophisticated people. They have no idea that they need to allege everything that happened in great detail, number one.

Number two, some of these people have a tendency to exaggerate and lie. We have this protection that they can't show up to the hearing and make up a bunch of other stuff that we've never heard of before, because they're limited by what they say in the petition.

On the flip side of that, if I'm hired by someone who wants to bring one of these petitions, I have to be very careful about how we draft it. If I'm hired after it's already filed, we have to look at filing an amended petition that it's comprehensive, as to all the acts of abuse, or all the acts of stalking that occur.

Those are the first steps in seeing what's in the petition and making sure that we're prepared to meet those claims ‑‑ doing an investigation, getting on the phone with people, and talking to people.

One thing that's interesting about these cases is that, while the defendant is going to be on an ex parte basis precluded from having any contact direct or indirect with the plaintiff, the lawyer can have contact.

Many of these cases, John, not the stalking cases, but the domestic violence protective orders involve some kind of fight with a couple, neither of which has ever been in trouble before, but there's something about the fight that causes one of the household members or people in the relationship to seek a restraining order.

They regret it pretty quickly. They especially regret it when they realize that the person can't have any contact with them, not even indirect, so they have no idea where their husband, boyfriend, girlfriend, etc., stand now. Do they want to be back together?

It's very beneficial to hire a lawyer just for the ability for me, or whatever lawyer you hire, to get on the phone and say, "I just want to reach out here. I saw that you brought this restraining order, and I'd like to talk to you about where you stand now. You guys have kids. Do you want to loosen the no‑contact restrictions somewhat so that at least you can talk about childcare?"

You can talk about who's going to pick up the child at school. You can talk about who's going to be responsible on the weekend. Is this relationship something that needs to be put on hold?

"Are you looking to end it or are you looking to repair it, in which case we can talk about -- maybe the judge will allow counseling or other types of contact in public?"

John: Right, so you can really help to open up the lines of communication between the plaintiff and defendant.

Ted: Exactly, and nobody else can do that but a lawyer retained by the person who is subject to the restraining order. I've also had cases where the plaintiff hired me to represent her in these cases for the same types of reasons, to try to open up lines of communication.

Impacts of Restraining Orders and Stalking Orders

John: Let's take a step back and talk a little bit about the impact that restraining orders and stalking orders have on a person and on a person's rights. You mentioned, of course, this issue of having kids maybe, and the fact that a restraining order really makes things difficult in terms of cutting off communication between perhaps a husband and a wife, or boyfriend and girlfriend.

They're not even able to communicate and talk about who's going to pick up the kids from school and things like that. What are some other impacts that restraining orders or stalking orders have on a person? Then specifically, you could talk about a person's right to possess a firearm and whether or not a restraining order or a stalking order has an impact on that right.

Ted: First of all, both of these are reported to the feds. If you run a criminal‑record check with the FBI, what's called a Triple I criminal‑record check, you're going to see if the person is subject to a stalking order with information about the plaintiff who brought the order, or you're going to see if they're subject to a domestic‑violence protective order.

Even though it's not a criminal case, it goes on a criminal record. Second of all, with respect to domestic‑violence restraining orders, any person under one of those orders is absolutely prohibited by federal law from possessing any firearm or ammunition.

Again, this is quite alarming to people who discover this when an ex parte petition is brought. Basically the police show up at their door and say, "We're serving you with a domestic‑violence protective order, and you have to turn over right now every firearm that you own or possess." They'll go through the person's house and round them up.

The entire time that you're subject to the restraining order, that you're under it, you're going to be banned from possessing firearms. If a criminal case comes out of it and you're actually convicted of a domestic assault, any kind of assault that involves physical force and a domestic partner, then you're under a lifetime ban for possessing guns.

That restriction is not in play for stalking orders. There's no federal restriction on people who obtain a stalking order.

John: Even while you're under the stalking order you're not banned from possessing a firearm?

Ted: The state court judge who issues a stalking order will probably include a provision that the person can't possess any firearms for obvious reasons, but it's not a matter of federal law, it's a matter of state law. If you violate that, you'd be in contempt of court and maybe committing a state crime, but you're not violating a federal law.

Defending Restraining and Stalking Orders in Court

John: How would you go about defending someone in court who has been served with a restraining order or a stalking order?

Ted: The first thing that we'd look at is trying to reach out to the person on the other side to see where they're coming from. Is this going to be diffused? Is this going to settle down, or is this going to be a full‑out litigation?

Second of all, looking at -- what do we need to investigate to try to disprove these allegations? Is that investigation going to take time, or can we request the five‑day hearing? It's really powerful on behalf of the defendant to request a five‑day hearing because it turns the tables.

In the beginning the plaintiff brings this suit, and the defendant to his complete surprise finds himself served with paperwork under a restraining order, but when we request a five‑day hearing in that instance all of a sudden the plaintiff is told that, "Guess what? Your court hearing is no longer scheduled for March. Your court hearing is now scheduled for this Tuesday."

It puts the pressure on both sides to be able to very quickly round up witnesses and prepare for the hearing. We're going to be looking at some evidence issues. Is what the other person alleging speculative? Because speculative evidence is not allowed.

The example from a case called "State of New Hampshire Versus Tracey." That's a last name with an E‑Y. In that case, part of the plaintiff's evidence in seeking a restraining order is the plaintiff said, "I found a cigarette butt in my car, and I know that he put that there to bug me."

New Hampshire Supreme Court held thatthis evidence should not have been allowed, and that the trial court should not have relied upon it in granting a restraining order because there was no proof as to who put the cigarette butt in her car. There was no witness to it. Nobody made any statements about it. Nobody sent a text message about it, so it was just speculative.

We're going to be looking at what's being alleged. What can we exclude from evidence? They're not going to be able to talk about so‑called prior bad acts from the past. Those are going to be excluded unless -- however conduct that's contemporaneous -- if you seek a restraining order because someone has hit you, but they've also been showing up at work -- that evidence is going to be allowed, as long as it's alleged in the petition.

Again, we're looking at, how can we narrow the evidence against the defendant, then with the evidence that we're stuck with, how are we going to disprove it or prove -- that it just doesn't rise to the level where a person should get a restraining order.

Like I said before, for a domestic violence restraining order, the plaintiff has to prove that there really is a credible threat of violence. Not just an argument that resulted in some hurt feelings and people saying things they didn't mean. Not necessarily even a push or a shove during an argument that does not reflect the way the relationship usually works.

There has to be a credible threat of future violence.

Common Problems in Restraining Order Cases

John: What are some of the common problems if you will, with the prosecution of cases involving restraining orders? In other words, what are some of the issues that the prosecution might have in making their case, that are difficult for them to make a case that you could maybe, I hate to say, "Take advantage of," but in a way -- the things that will help you to help the defendant in a case of restraining order or stalking order.

Ted: The biggest problem is that there is no prosecutor. Again, these are civil cases. There is no prosecuting attorney in there or even police sergeant or detective or liaison helping the plaintiff with this petition.

If the plaintiff hasn't hired his or her own lawyer, then they're by themselves. They may have friends there for support, but their friends can't help them present their case. In a sense, the question you asked -- there is no prosecution.

Again, I want to stress that there is also a crime of stalking in New Hampshire. There is, of course, a number of different domestic violence crimes. In many of these cases, it's going to be a parallel track, where a police department and eventually professional prosecutor also brings a criminal charge that's related to the civil case.

When we talk about the civil case alone, there is no prosecutor. One of the pitfalls, honestly -- a lot of people go to these hearings and think they just need to stand up and tell the judge they've been abused and that the judge will take over from there.

I certainly don't want to sound like I'm belittling the importance of protecting people against domestic violence, but I have to say that a judge can't stand in a prosecutor’s shoes in this situation. A judge has to be even-handed under the New Hampshire constitution. The judge cannot step in and say, "Well, ma'am there are some things you need to do here and let me tell you how you need to put on your case."

The biggest pitfall is that people seek these hearings, then really have no idea what they're supposed to do when they get in the courtroom. Sometimes people avoid a restraining order or stalking, not necessarily because they really deserve to avoid it, but because the plaintiff has no idea how to put on a case.

Example of an Alleged Stalking Case

Let me give you an example of a case that would probably help you see how these things play out.

John: Yeah, go ahead. That's great.

Ted: I handled a case in Newport, New Hampshire. A woman brought a stalking petition against a man she knew from a gym. She worked in the gym; he came to the gym a lot. He worked out almost every day.

She claimed in her petition that -- I could streamline it by saying that she found some of his comments too personal at the gym. She felt like he would brush by her, or come a little too close to her when he talked to her, and that at a point in time when she stopped working at the gym, then he contacted her a number of times by email, and some of them were romantic proposals and they were unwanted.

She had alleged in her petition that she told him to stop and he didn't stop. She alleged that the overall course of conduct constituted stalking. This is a case where she was talking about a conduct over a period of a year.

This was not a case where we could request a five‑day hearing. It took us a lot of time to prepare to meet these claims. What this man told me, and what I firmly believe, was that there was no stalking. He liked her. He liked her when she worked there, and at some point after she stopped working there, he had romantic interest in her and he did email her over a long period of time, and that she would email back.

It was not a person stalking somebody. It was actually an email relationship that went on for a long time, and that when she told him to stop, he did. So, we had to go through all of his email. As any lawyer would tell you, in this situation, you can't just ask the client to bring you the email.

You have to look through it yourself, because if you try to cherry pick, and the other side, through discovery procedures, get their hands on everything, you may be very embarrassed in court; or worse, you may be accused by the judge of presenting a misleading case.

We went through everything. It turned out that what he was saying was absolutely true. She would email him friendly messages.

John: Right and not just, "Hey, please don't email me anymore." It was, having a conversation back and forth.

Ted: Absolutely. It was a conversation back and forth. She'd reply to his emails. Sometimes she would send one herself. I think that nobody reading these would think that she had a romantic interest in him, but she also didn't do anything to push him away.

In some of the emails, they weren't just a polite thank you, there was substance to them. Some of the things that she said in the emails made it very difficult to believe that she really felt that he was a creep at the gym. She was saying things that are way too friendly.

It looked like after the fact, she kind of rewrote the relationship in her mind. This is a human thing. We see this all the time in these types of cases. The person grows to dislike another person, feels threatened by them, even though there really is no threat, and they rewrite the whole history of the relationship through that colored lens.

John: Right, they look back and go, "Oh geez that whole time that he was talking with me at the gym, he was interested in me. Jeez, he was kind of a creep," or something like that. But at the time, she didn't feel that way.

Ted: The emails she sent to him within weeks of leaving her employment at the gym made it very difficult to imagine that she really felt that way at the time. So, we went in, and she told her story and then -- basically this is what cross-examination is all about.

It's not just a flamboyant lawyer talking and saying things that sound impressive. You have to have the goods. You have to have done the investigation, so you can confront the witness with all the things that tend to show that they're either exaggerating or misremembering or just not telling the truth.

This hearing went on for probably an hour and a half. We presented all these things to her. She had a lot of difficulty explaining her testimony in light of all the emails she had sent and all the replies she had sent. And especially important was the fact that there was no evidence that he sent any more correspondence after she did tell him, "leave me alone, stop emailing me."

At the end of the hearing, what I said to the judge was, Judge, this does not meet the legal standards for a stalking petition. It's certainly not a domestic violence situation. They never were in a relationship, but more pertinent to what we're here for, it does not meet the standard for a stalking petition.

The plaintiff has to prove by preponderance of the evidence, that the defendant, in two or more different instances, made contact in person or through a means like a text message for no legitimate purpose, and that's not what happened here. These people had a purpose in corresponding with each other. We can see the purpose.

They had a friendly correspondence over many, many months; that eventually she got sick of, and when she told him to stop it, he stopped. That's not stalking." The judge agreed. The judge also told her and told my client that if anything happens in the future this hearing will be part of the record.

There will be no doubt that any contact in the future is stalking because we have a backdrop now where everybody in the courtroom fully understands now that there is no room for correspondence between these two people, or any kind of relationship. The judge dismissed the petition and that was it.

This client emerged from the case the way he came into it -- with absolutely no record and no findings against him in his entire life. That was very important to him.

John: I think that's a really great example and really good information. I think that really goes to show to people that having a good attorney on your side who can help you walk through those issues and the nuances of a procedure like that -- they can really help you to gather the appropriate evidence and organize things in a way that will help them come out on top when they go into one of these hearings.

Ted: It's been great talking with you, John.

John: Thanks Ted, very much. For more information you can visit the Lothstein Guerriero criminal defense law firm website at www.LothsteinLaw.com. That's L‑O‑T‑H‑S‑T‑E‑I‑N‑law.com or call Ted at 603‑513‑1919.