Restraining Orders Have Additional Implications for Law Enforcement Professionals
Kasey A. Castillo, Partner[email protected] THE TEMPORARY RESTRAINING ORDER Like individuals in any industry, law enforcement officers occasionally find themselves in civil court as a party to a Temporary Restraining Order (TRO). Service of restraining orders can arise out of family court matters, domestic disputes, or other civil actions. Unfortunately for law enforcement professionals, the already inconvenient position of being listed as “Respondent” on a civil restraining order has additional implications on the law enforcement professional’s career. The ability to carry a weapon is effectively removed by a civil restraining order, jeopardizing the officer’s employment status simply by virtue of a signature of a reviewing judge. This article will discuss the potential repercussions if a peace officer becomes the Respondent (restrained person) in a civil restraining order situation. As with any personnel complaint or allegation, the Petitioner requesting the civil harassment restraining order only needs to set out a prima facie case in a short template with an accompanying short declaration for a judge to grant the temporary order. The Petitioner can list other individuals on the request, effectively prohibiting the Respondent from contact with those persons until after the hearing occurs and a favorable ruling is given. This is especially upsetting if the additional listed individuals are children of the Respondent. The Petitioner can request the Respondent stay away from listed locations including residences, schools, work, child care locations, vehicles, etc until after the hearing. Additionally, as part of a TRO, the Judge orders that the Respondent “cannot own, possess, have, buy or try to buy, receive or try to receive or in any other way get guns, other firearms, or ammunition.” Within 24 hours of being served with the TRO, the Respondent must sell all weapons to a licensed gun dealer or turn in to a law enforcement agency any guns or firearms in their immediate control. This includes the officer’s duty weapon, which usually is turned over to the employing agency. Further, the Respondent must file with the court within 48 hours a receipt that the above has been accomplished, or risk being found in contempt of court. See Code of Civil Procedure section 527.9. As one can imagine, for a peace officer, this mandate causes an extreme hardship at work, essentially relegating the officer to administrative leave, or if they’re lucky, desk duty. Once signed by the judge, the TRO is then entered into the California Restraining and Protective Order System (CARPOS) through the California Law Enforcement Telecommunications System (CLETS) and transmitted to the Department of Justice (DOJ). (CCP section 527.6 (q)(1)). After service of the TRO, the Respondent is entitled to a hearing within 21 days of the issuance of the order. (CCP, section 527.6(f)). At the time of the hearing, the Petitioner must be ready to present their case, or the TRO is dissolved (subject to the request for a continuance). At the hearing, if it does not go well for the Respondent, the judge can make orders up to three (3) years permanently restraining the Respondent. (CCP section 527.6(j)). A TRO is not to be confused with a protective order on a criminal case, which takes precedence in enforcement over any civil court order (Penal Code section 136.2(e)(2). However, any non-conflicting terms in the TRO remain in full force. An Emergency Protective order that is in effect between the same parties and is more restrictive than other restraining orders and takes precedence over all other restraining orders. (Penal Code section 136.2). An Emergency Protective order typically has a quicker expiration date. A criminal protective order is typically issued upon the request of the Deputy District Attorney and served on the Defendant at the time of arraignment. The criminal protective order will last for the duration of the criminal case, and upon conviction, will typically be incorporated as a term and condition of probation. However, the Petitioner is still free to obtain a civil restraining order if they choose. HEARING ON THE TEMPORARY RESTRAINING ORDER Upon receipt of service of a TRO, the Respondent may file a general denial and/or an accompanying declaration. (CCP section 527.6(h)). It is important that the Respondent enlist the assistance of experienced counsel at this point to determine the best course of action. After all, these documents become discoverable, may become part of public record, and can have implications in order proceedings, such as criminal cases, family court cases, and other civil matters. For the same reasons, a Respondent should not attend a hearing on a TRO without an experienced attorney, as both the Petitioner and Respondent will be sworn in as witnesses before the court, subject to perjury constraints. (CCP section 527.6(i). Additionally, anything the Respondent says in court will be considered a waiver of their Fifth Amendment right against self-incrimination. Thus, similar to the choice of a defendant in a criminal case, the choice of whether to present evidence in a TRO hearing is an important decision to be made with the assistance and advice of counsel. Additionally, the utilization of counsel familiar with the process and rules of a civil restraining order hearing may obviate the need for a hearing at all. Settlements that meet the needs of both parties and remove the risk of an officer being stripped of his ability to carry a firearm and listed in CLETS as a prohibited party is often accomplished, but cannot be done without counsel, as the Respondent, by virtue of the language of the TRO cannot communicate with the Petitioner. The Petitioner in a civil restraining order hearing has the burden of proof, which is that of “clear and convincing evidence.” This is a burden much less that which is required in a criminal case, and more than what is required in a normal civil case. “Clear and convincing evidence” is also what is required in child custody and guardianship cases, as well as in criminal competency cases (to determine if a defendant is capable of standing trial). The Petitioner presents their evidence first, and calls witnesses to testify. The Respondent proceeds next, and can question the Petitioner on the allegations and their factual basis. Much like in typical court case, the advantage of having an attorney examine and cross-examine witnesses is indescribable. Oftentimes, Petitioners may not hire their own counsel, and a Respondent’s choice to do so may be the difference between a favorable order and a restraining order. IF THE HEARING GOES WELL FOR THE RESPONDENT If the hearing goes well for the Respondent, the TRO is lifted and the permanent order is denied. The Respondent is no longer under the jurisdiction of the court, and can resume carrying or possessing firearms. The Respondent is removed from CLETS as a restrained party with a firearm prohibition. If the Respondent has not sold his weapons to a licensed dealer, he can retrieve them from the law enforcement agency holding them with a copy of the certified minute order from the hearing. IF THE HEARING DOES NOT GO WELL FOR THE RESPONDENT If the hearing goes not go well, the Judge may order a restraining order up to a period of three (3) years, based on the preference of the Petitioner. During that time, the restrained person, the Respondent, will be subject to the orders prohibiting the possession of firearms. According to CCP section 527.9(f), the court may grant an exemption to the firearm relinquishment requirement if the Respondent can show a particular firearm is necessary as a condition of continued employment and that the current employer is unable to reassign the respondent to a position where a firearm is unnecessary. As any law enforcement professional can imagine, the ability to prove the above requirements will depend on the cooperation of the Respondent’s department, and the availability of accommodations. In the case of peace officers, the court may allow the officer to carry the firearm either on or off-duty if the court finds by a preponderance of the evidence (more likely than not) that the officer does not pose a threat of harm. “Prior to making this finding, the court shall require a mandatory psychological evaluation of the peace officer and may require the peace officer to enter into counseling or other remedial treatment program to deal with any propensity for domestic violence .” CCP section 527.9(f). Thus, the officer will be required, at their own expense, to undergo a psych eval and possibly treatment, and then undergo an additional hearing in order to be able to carry for the purpose of employment. These hoops the officer will need to jump through should be avoided at all costs for financial reasons, as well as those associated with any pending administrative investigation the officer may be subject to. While the position of the officer-Respondent is not preferred one to be in, the damage can be considerably mitigated if the officer makes the smart choice and immediately enlists experienced counsel. Attorneys at Gaspard Castillo Harper, APC routinely handle these types of cases with favorable outcomes for the officer-Respondent, ensuring less stress and quick resolution. CH-110, Temporary Restraining Order, Judicial Council of California, January 1, 2012.