Restraining Orders and Stalking Orders
In New Hampshire, a person can go to a Circuit Court and seek two different types of protective orders, in an effort to prohibit another person from having contact with them or coming near the residence or workplace. These are: domestic violence protective orders, and stalking orders. The lawyers at Lothstein Guerriero, PLLC frequently represent clients who have been served with a protective order or stalking order. On occasion, we help clients, or a former client in need, obtain one.
Domestic Violence Protective Orders
These orders can only issue against an "intimate partner" or "family or household member" of the plaintiff (the person seeking protection). They are issued under a New Hampshire law codified at N.H. R.S.A. 173-B. These are also referred to as "restraining orders", or in some other States, "stay-away orders." These begin with the plaintiff's application for an "ex parte" restraining order, which means that the Judge grants the restraining order without notice to the defendant.
Grounds for a Domestic Violence Protective Order
In order to obtain this relief, the petitioner must write a petition (a written statement), and swear under oath to the truth of the facts in the petition, that establishes three elements:
- The defendant committed or attempted to commit a criminal act (see list below)
- The defendant's conduct constitutes a "credible present threat" to the petitioner's safety
- Petitioner is a family or household member of defendant, or a current or former sexual or intimate partner.
Criminal Acts that may Justify a Protective Order
Here is the list of criminal acts:
(a) Assault or reckless conduct as defined in RSA 631:1 through RSA 631:3.
(b) Criminal threatening as defined in RSA 631:4.
(c) Sexual assault as defined in RSA 632-A:2 through RSA 632-A:5.
(d) Interference with freedom as defined in RSA 633:1 through RSA 633:3-a.
(e) Destruction of property as defined in RSA 634:1 and RSA 634:2.
(f) Unauthorized entry as defined in RSA 635:1 and RSA 635:2.
(g) Harassment as defined in RSA 644:4.
(h) Cruelty to animals as defined in RSA 644:8.
However, although the law incorporates the definitions of these criminal acts from the criminal code, it is not necessary that a person be convicted, or even charged criminally, with any of those acts for a court to grant a restraining order.
Restraint on Liberty
When a court grants a restraining order, it issues specific orders that prohibit the defendant from having direct or indirect contact with the petitioner, prohibits the defendant from going to the petitioner's residence or workplace, prohibits the defendant from going any place where the petitioner may be found, and indeed, the court has jurisdiction to issue many other types of orders that restrain defendant's liberty (at least temporarily - keep reading).
Loss of Second Amendment Rights
When the restraining order is served by the police or sheriff on the defendant, the police confiscate all of the defendant's firearms and ammunition, on the spot. So, an ex parte restraining order temporarily eliminates defendant's right to bear arms, even though there has been no prior notice and no opportunity to be heard.
Five Day Hearings
Because New Hampshire law allows the court to restrain defendant's liberty and confiscate his firearms and ammunition without prior notice and without prior opportunity to be heard, the law implicates substantial due process rights. And, hearings are often scheduled for a date that is weeks out from when petitioner filed her petition. Recognizing this problem, New Hampshire law allows the defendant to demand a five day hearing. A written demand for a five day hearing accelerates the hearing so that it must occur no more than five, and no less than three, days after the written demand is filed with the court.
Consult with a Lawyer before Demanding a Five Day Hearing
Don't demand the five day hearing without first consulting with a lawyer. In order to prove your case, you may need witnesses or exhibits that cannot be subpoenaed or obtained within the very short time frames triggered by a demand for 5 day hearing. And, if you lose the 5 day hearing, the restraining order remains in effect for an entire year. To make matters worse, the petitioner can file to renew the restraining order for an additional year or even beyond - for up to five years.
Other Due Process and Statutory Protections
At the five day hearing, or the final hearing if defendant did not demand a 5 day hearing, the defendant has the right to cross-examine the petitioner and any witnesses she presents in court, the right to testify in his own defense, and the right to present any witnesses and documentary evidence that may tend to disprove any of the three elements listed in the "Grounds for a Domestic Violence Protective Order" section, above.
Unlike in criminal court, the petitioner is strictly limited to the facts that he or she swore out in the petition, and cannot add new accusations to bolster the case. Also unlike in criminal court, it is not enough to show that a "crime" was committed - the petitioner must show a 1. threat, that is 2. a credible threat, and that is 3. a present threat.
Thus, petitions that allege acts of "abuse" that are not recent, or acts of "abuse" that reflect a level of domestic dischord that does not rise to the level of a credible threat to anyone's safety, will not meet the burden of proof necessary to make the ex parte order permanent. There are critical case decisions from the New Hampshire Supreme Court, where restraining orders were vacated because the trial court did not adhere to these legal principles.
Stalking Orders are similar to restraining orders, in that they are obtained through a civil (not criminal) case filed in the district court, and if granted, they restrain the liberty of the defendant. Stalking orders are issued pursuant to RSA 633:3-a, which is a complicated and confusing statute.
However, they are different, in that the petitioner can seek a stalking order against a stranger. The parties do not need to be family members or household members, or current or former intimate partners, for the petitioner to seek a stalking order. Other differences include:
- The petitioner must show that defendant engaged in a "course of conduct". A restraining order, theoretically, can be granted upon a single act of abuse if that act of abuse implicates a credible threat to petitioner's safety.
- The course of conduct must show a "continuity of purpose" and must not be based on constitutionally protected activity (such as, e.g., picketing protected by the First Amendment).
- The course of conduct must either such conduct that would cause a reasonable person to fear for her safety or safety of an immediately family member, or it must be shown that defendant knew his conduct would bring about such fear.
- The acts that comprise the course of conduct can include a combination of the following:
(1) Threatening the safety of the targeted person or an immediate family member.
(2) Following, approaching, or confronting that person, or a member of that person's immediate family.
(3) Appearing in close proximity to, or entering the person's residence, place of employment, school, or other place where the person can be found, or the residence, place of employment or school of a member of that person's immediate family.
(4) Causing damage to the person's residence or property or that of a member of the person's immediate family.
(5) Placing an object on the person's property, either directly or through a third person, or that of an immediate family member.
(6) Causing injury to that person's pet, or to a pet belonging to a member of that person's immediate family.
(7) Any act of communication, as defined in RSA 644:4, II.
Legal Procedures for Stalking Orders
The procedures for obtaining a stalking order, and the procedures and legal protections for defending against one, are the same as for a restraining order.
Manipulation and Abuse of the Legal System
It is well known that domestic violence afflicts millions of women and men every year, extracting a terrible toll in human suffering across all strata of our society. Restraining orders and stalking orders are a necessary tool to gain victims the protection of the courts and the police against their abusers.
Unfortunately, compounding this problem, it is common for some petitioners to exploit this crisis in our society - to try to use a restraining order petition to gain an upper hand in a marital proceeding, or a child custody dispute (courts prefer the language "parenting rights and responsibilities"), or simply as a means of retaliating against an intimate partner after a perceived hurt or wrong. If we believe that a potential client is attempting to exploit the legal system in this manner, we will not help them seek a restraining order or stalking order.
Fortunately, we have seen that most New Hampshire judges and marital masters have the independence and courage, and the good judgment and discretion, to dismiss restraining order and stalking order petitions when the petitioner fails to establish all of the necessary prerequisites for an order. And, when lower courts have faltered, the New Hampshire Supreme Court has repeatedly issued decisions that vacate restraining orders and clarify the laws and procedures that must be followed.
Restraining Orders, Stalking Orders, and Criminal Prosecutions
As you can see, in order to obtain either a restraining order, or a stalking order, petitioner must show that a crime occurred. Accordingly, these cases often are brought at the same time, or just before, the police bring a criminal prosecution. A successful defense against the restraining order or stalking order can help derail the criminal prosecution. If you or a loved one are served with a restraining order or stalking order, in most cases it's a mistake to try to defend without help from a lawyer. Ted Lothstein and Richard Guerriero, in most cases, will conduct a free consultation to discuss whether hiring a lawyer is the right decision for you, to discuss the costs of representation, and to discuss the potential strategies that we would employ to protect our client.