Fundamental Liberties Fall to Simple Domestic Violence Petition

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Fundamental liberties under law in the U.S. are no more secure than perfunctory, one-day ex parte processing of personally filed domestic violence petitions. Anyone in the U.S. can file a simple petition for a domestic violence restraining order. Court personnel commonly offer petitioners information about domestic violence activists who can help them fill out the petition. Without questioning the petitioning party, without hearing from the person to be restrained, and without any evidence other than claims written on the standard-form, pre-printed petition, judicial officials regularly issue domestic violence restraining orders. An estimated 1.7 million domestic violence restraining orders issued in the U.S. in 2008.

Initial domestic violence restraining orders are commonly issued within one day of receiving the form requesting the restraining order. Initial ex parte restraining orders are effective immediately. In some states, initial restraining orders are legally effective without legal notification (service) to the targeted person.^ Initial ex parte restraining orders typically are specified by statute to last no longer than from five days to more than three weeks.^ Initial orders are commonly renewed if a case is continued.

Initial ex parte domestic violence restraining orders have large effects on ordinary personal liberties. They criminalize ordinary personal communication of any nature with designated victims. They deprive restrained persons of contact with their children. They effectively evict restrained persons from their homes. They annul restrained persons’ right to bear arms, impose financial obligations, and limit ordinary freedom to use and dispose of personal property. Working under the burden of these extraordinary deprivations of liberty, a restrained person can have no more than five days to prepare for a crucial, but short and informal, legal hearing.^ That legal hearing can deprive a restrained person of fundamental liberties through a restraining order lasting for years.

Restraining orders create extraordinary felony crimes. Consider the case of Desiree Douglass and Robert May. They dissolved their marriage in a bitter divorce in Washington State in 1995. In September, 1996, Douglass requested an initial restraining order from Washington’s King County Superior Court. The judge reviewing that request denied it on the grounds of “insufficient factual basis.” That’s unusual; roughly 90% of initial requests for restraining orders are approved. Douglass again requested a restraining order from King County Superior Court in October, 1996. A different judicial official on this occasion approved the request. The initial restraining order almost surely prohibited May from communicating in any way with his ex-wife or their son. The hearing for the final order, in which May was present, occurred on December 30, 1996. By checking a box on a standard form at the end of that hearing, the judge made it a felony crime for May to communicate in any way with his ex-wife or their son, “except by telephone regarding child for emergency purposes only,” for the rest of May’s life. In 2005, May communicated with his ex-wife:

on March 11, 2005, May left a message on Douglass’ voicemail inquiring about contact with their son. Thirteen days after that, May sent an e-mail to Douglass seeking visitation.^

For these communications, May was convicted of two felony counts of violating a restraining order.

Standard forms for obtaining an initial domestic violence restraining order in California indicate the legal seriousness of depriving a person of fundamental liberties under law with a restraining order. The primary standard form in California is the five-page DV-100: “Request for Domestic Violence Restraining Order.”^ The first three items on the form specify persons:

  1. “Name of person asking for protection”
  2. “Name of person you want protection from”
  3. “Do you want an order to protect family or household members” (for each, list name sex, age, checkbox for whether persons lives with you, and space for “relationship to you”)

The form’s fourth item describes the relationship between the petitioner (form item 1) and the target respondent (form item 2). This item’s checkboxes largely parallel the specifications in California Family Code sec. 6211. One insightful DV-100 checkbox specification:

“We are dating or used to date, or we are or used to be engaged to be married.”

The California Domestic Violence Prevention Act specifically  defines “dating.”^ California’s DV-100 standard form for requesting a domestic violence restraining order doesn’t include that legal definition. DV-100, following the statutory definition, merely categorically groups “used to date” with “are engaged to be married.” The form thus indicates that even gross relational distinctions aren’t relevant to deciding to deprive a person of fundamental liberties via a restraining order. The form’s fifth item seeks information about “other court cases,” including court cases relating to domestic violence or domestic violence restraining orders. Such information undoubtedly is helpful for form-processing officials seeking to avoid granting restraining orders to both parties. Both parties may seek restraining orders in cases of mutual domestic violence under the broad legal definition of domestic violence. Both parties may also race to get restraining orders for strategic advantage in a divorce or child-custody proceeding.^

After identification of the relevant parties and the relationship between the petitioner and the respondent, the next eighteen items specify legal services offered to the petitioner. This section is headed by the text “Check the orders you want” in large, bold letters. These orders criminalize a wide variety of actions and deprive the target respondent of a wide variety of ordinary liberties:

  1. “Personal Conduct Orders.” Typically criminalizes the respondent communicating with the petitioner and other petitioner-associated persons. Can further criminalize a variety of criminal acts (abusing the petitioner), as well as following or disturbing the peace of the petitioner.
  2. “Stay-Away Order.” Criminalize the respondent coming within a petitioner-specified distance in yards from places petitioner checks among sub-item checkboxes “me, my home, my job or workplace, my school, my vehicle, the children’s school or child care, each person listed in {form item} 3, other (specify).”
  3. “Move-Out Order.” Item must be checked if petitioner and respondent live together and the petitioner wants the respondent evicted from their home.
  4. “Guns or or Other Firearms and Ammunition.” Petitioner checks boxes to indicate belief that the respondent “owns or possesses guns, firearms, or ammunition.” Anyone subject to a restraining order is required by law to surrender ownership or possession of guns, firearms, or ammunition.
  5. “Record Unlawful Communication.” Give respondent legal right to record communication by the respondent in violation of the order.
  6. “Animals: Possession and Stay-Away Order.” Give petitioner “sole possession, care, and control of animals listed” and criminalize the respondent coming within petitioner-specified distance of the animals.
  7. “Child Custody and Visitation.” Give the petitioner a new or modified child custody or visitation order.
  8. “Child Support.” Give the petitioner a new or changed child support order.
  9. “Property Control.” Given petitioner sole right to “temporary use, possession and control of the property listed here.”
  10. “Debt Payment.” Order respondent to make make specified financial payments to specified persons on specified dates.
  11. “Property Restraint.” Petitioners who are married or have a registered domestic partnership with the person specified in 2 (form item 2) can check this box to state:

    I ask the judge to order that the person in 2 not borrow against, sell, hide, or get ride of or destroy any possessions or property, except in the usual course of business or for necessities of life. I also ask the judge to order the person in 2 to notify me of any new or big expense and to explain them to the court.

  12. “Spousal Support.” Order the respondent to pay spousal support to the petitioner.
  13. “Lawyer’s Fees and Costs.” Order the respondent to pay some or all of the petitioner’s lawyer fees and costs.
  14. “Payments for Costs and Services.” Order the petitioner to pay costs and expenses of the petitioner that relate to claimed acts of domestic violence.
  15. “Batterer Intervention Program.” Order the respondent to attend a 52-week batterer invention program and show proof of completion to the court.
  16. “Other Orders.” Opportunity to petition to specify any other acts desired to be imposed under the force of law.
  17. “Time for Service.” Petitioner can request that the court give the respondent less than the normal five days to prepare for a legal hearing that could deprive the respondent of fundamental liberties for up to five years.
  18. “No Fee to Serve (Notify) Restrained Person.” This item assumes that the respondent will be restrained and informs the petitioner how to have the restrained respondent legally notified without any cost to the petitioner.

After this long list of checkboxes allowing the petitioner easily to deprive the respondent of fundamental liberties, the fifth page of the five-page California standard-form domestic violence petition provides an item for the petitioner to “Describe Abuse.” The form explicitly includes a wide-ranging definition of abuse. According to this legally potent standard-form petition for a domestic violence restraining order, abuse encompasses the following:

Abuse means to … harass, telephone, or contact you; or to disturb your peace or to destroy your personal property. Abuse can be spoken, written, or physical.

In California, a petition for a domestic violence restraining order is filed by handing it to a clerk. Within one business day, the clerk returns the form showing whether an initial restraining order was granted.^ In California, about 300,000 family petitions for restraining orders are filed per year. Publicly available data on restraining orders from across the U.S. indicates that about 90% of such petitions are initially granted.

The initial grant of the restraining order procedurally leads within about two weeks to a summary action that can impose a restraining order lasting for years. The accused respondent doesn’t have a right to a trial by jury, nor the right to benefit of counsel, nor the right to call witnesses. The additional parties that the petitioner requests be covered by restraining order are not required to appear at the hearing. The hearing is concise and informal.^ About half of U.S. states have statutorily established the burden of proof for depriving fundamental liberties via a restraining order to be “preponderance of the evidence.” In three states the burden of proof is “reasonable cause,” in one state, “probably cause.” Most other states specify no standard for the burden of proof.^ One judge hears the evidence, decides the facts, and makes the decision. The judicial decision is implemented via a standard form with relevant checkboxes. Those checkboxes can suspend ordinary freedoms of communication, association, and possession of firearms, evict a person from her home, deprive her of contact with her children, seize her personal property, and impose large monthly financial payments. Apart from modern legal-technical terms, the pretense of mundanely evoking emergency law, and the use of pre-printed standard forms, the over-all legal framework is like that of a feudal lord hearing a dispute between two serfs.

Official efforts to have domestic violence activists help petitioners draft their petitions exacerbates the injustice of depriving targeted persons of fundamental liberties through a rapid, ex parte, perfunctorily reviewed legal process. Court officials have been concerned that petitioners need help in filling out restraining-order petitions. Domestic violence activists provide such help. Using their knowledge of how judges evaluate restraining-order petitions, domestic-violence activists formulate the petitioners’ experience to help them secure a restraining order. Consider, for example, a petitioner’s original declaration of specific acts of abuse:

Physical damage to my body, verbal abuse if there is no cooperation in far as doing as he says, I will die (as he calls it, conducting business).

The victim advocate rewrote that declaration as the following:

Defendant is my ex-boyfriend. In March 1993 defendant choked me almost to the point where I would pass out. He threw me to the ground, and slapped me in the face. He was talking badly to me and threatened to hurt me more if I didn’t cooperate with him. Defendant also twisted my arm — I had a bruise on my left arm as a result. On 4-4-93 we had an argument about my car. Because I told him that he couldn’t use it, he threatened to have someone kill me. He made a phone call to the person who was supposed to kill me. While I was crying begging for him to stop, he was laughing and ridiculing me. Defendant is known to carry a knife. Yesterday 4-30-93 I asked for my car back. He then proceeded with his death threats. I am very scared for my life and I know there is a strong possibility for consequences to occur.^

A scholar has documented this specific transformation through the transcript of the advocate’s interview with the petitioner. The over-all direction of the transformation:

by constructing events in the worst possible light in order to make the best possible case for the petitioner; in the words of the interviewer, by making “it sound as bad as I could.”^

The petitioner, by signing the petition, implicitly affirms the declaration written for her. If she is assumed not to be able to fill out the petition unassisted, there is little reason to believe that she will be able to verify meaningfully the declaration written for her. Nonetheless, such declarations, and nothing more, are the evidentiary basis for legally stripping fundamental liberties from roughly a million persons in the U.S. per year.

Studies of restraining orders typically focus on women’s needs, ignore men who are victims of domestic violence, and show no regard for normal civil rights in issuing restraining orders. Legal scholarship on restraining orders is astonishingly devoid of normal legal concerns of legal rights and due process of law. A tendentious, major social-scientific study described three advantages of civil restraining orders:

  1. lower burden of proof than for adjudicating a criminal charge
  2. violations of restraining orders are procedurally easier to punish than normal criminal offenses
  3. “provide a source of empowerment and flexibility for victims in meeting their specific needs” ^

These advantages point in the general direction of the advantages of lawlessness. This study, and others like it, didn’t consider the cost of lawlessness and the problem of mass incarceration. In 2008, an estimated 1.7 million domestic-violence restraining orders were imposed. The costs of those restraining orders should be broadly considered.

Historic anti-men bias in public discussion of domestic violence exacerbates the injustice of domestic violence restraining orders. For decades wildly exaggerated claims about domestic violence against women have circulated through leading newspapers, law reviews, congressional testimony, judicial opinions, and police and prosecutors’ public communications. Public agencies of domestic violence policy have largely ignored or obscured serious scholarly dispute about fundamental characteristics of domestic violence. Anti-men stereotyping of domestic violence victims and perpetrators is pervasive. While billions of dollars have been spent on providing services to women victims of domestic violence, services for men victims hardly exist. Men suffer from about 55% more serious, violence-related injuries than do women. Injuries to men, however, hardly make the national injury agenda. Deprivations of fundamental civil liberties through domestic violence restraining orders currently function as feudal justice administered within circumstances of acute anti-men bigotry.

Studies of whether issuing of restraining orders discriminate against men are largely pointless. Because domestic violence against men has scarcely been acknowledged, few studies have examined whether judges discriminate against men victims of domestic violence in responding to petitions for restraining orders. One such study found a large difference: 95% of petitions for initial restraining orders were granted when there was a female plaintiff and a male defendant, while 58% were granted when the sexes were reversed.^ Those figures suggest that sex discrimination is part of the cursory review in issuing initial restraining orders. Such sex discrimination is merely an epiphenomenon. Much deeper anti-men gender animus created the legal regime of issuing about a 1.7 million restraining orders per year with no serious legal judgment on the merits and no significant judicial review.

Arresting, Detaining, and Restraining for Domestic Violence Allegations

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Statutory law and police policies encourage police to arrest in response to allegations of domestic violence. Domestic violence in U.S. state law is typically defined broadly to encompass offenses ranging in criminal seriousness from public order violations to misdemeanors to felonies. In the U.S., police generally cannot make a warrantless arrest for non-felony crimes that they do not witness. Police generally have considerable discretion in whether to make an arrest. However, most U.S. states have enacted broader arrest authority  and required less police discretion in police response to allegations of domestic violence. Arrests for domestic violence commonly occur without warrants and under mandatory arrest policies.

The specifics of warrantless arrest and mandatory arrest for domestic violence vary by state. Arizona law declares:

A peace officer, with or without a warrant, may arrest a person if the officer has probable cause to believe that domestic violence has been committed and the officer has probable cause to believe that the person to be arrested has committed the offense, whether the offense is a felony or a misdemeanor and whether the offense was committed within or without the presence of the peace officer. (Ariz. Rev. Stat. 13-3601(B))

Oregon law specifies warrantless, mandatory arrest even for non-felony domestic violence that the peace officer does not witness:

Notwithstanding the provisions of subsection (1) of this section {describing the issuing of criminal citations for misdemeanors}, when a peace officer responds to an incident of domestic disturbance and has probable cause to believe that an assault has occurred between family or household members, as defined in ORS 107.705, or to believe that one such person has placed the other in fear of imminent serious physical injury, the officer shall arrest and take into custody the alleged assailant or potential assailant. (Oregon Rev. Statutes 133.055(2)(a))

Under ORS 107.705, “family or household members” of a given person include everyone with whom that person has had sex within the past two years. If a car driver and a passenger have had sex in the past two years and the driver drives the car in a way that causes a passenger to fear “imminent serious physical injury,” that’s a domestic violence offense under Oregon law. Moreover, under Oregon law, the peace offer “shall arrest and take into custody” the driver if that offenses comes to the attention of the police.

State statutes mandating arrest for domestic violence are common. In the year 2000, twenty-three U.S. states and the District of Columbia had passed special domestic-violence statutes mandating that the police with probable cause make a warrantless arrest for particular domestic violence offenses (mandatory arrest). Another six states had statutory provisions encouraging arrest.^ At least fourteen of those mandatory-arrest jurisdictions required mandatory arrest for misdemeanor domestic violence offenses.^ As of the year 2000, thirty-three states had statutory provision mandating arrest for violation of a domestic-violence restraining order.^ Categorizing and counting mandatory arrest statutes has a considerable margin of discretion because such statutes are complex and not readily understandable.^ Because domestic-violence statutes are continually augmented over time, the scope of mandatory arrest statutes tends to broaden over time. Addressing allegations of domestic violence is the leading edge of expansive coercive control through criminalization.

Many jurisdictions routinely impose no-contact criminal restraining orders as a condition of pre-trial release after arrest for domestic violence. Determinations of pre-trial release typically involve case-specific determination of reasons for detaining a person against her will. Sensationalized depictions of domestic violence have commonly eliminated these legal judgments. For example, Rhode Island state law requires that a restraining order be imposed as a condition of pre-trial release following an arrest for domestic violence, irrespective of any consideration of specific circumstances:

Because of the likelihood of repeated violence directed at those who have been victims of domestic violence in the past, when a person is charged with or arrested for a crime involving domestic violence, that person may not be released from custody on bail or personal recognizance before arraignment without first appearing before the court or bail commissioner. The court or bail commissioner authorizing release shall issue a no-contact order prohibiting the person charged or arrested from having contact with the victim. (R.I. General Laws §12-29-4(a))

South Dakota law requires that a no-contact order be included in the pre-trial release conditions for any persons arrested for domestic abuse (S.D. Codified Laws §25-10-23). In New York City, no-contact restraining orders are uniformly imposed on persons arrested for domestic violence, including misdemeanor offenses:

Every domestic violence case receives an order of protection at arraignment; the order is renewed at subsequent court appearances, and a final order is usually issued at disposition or sentencing. The ADA {Assistant District Attorney} will generally request a full order of protection whether the complainant wishes it or not; the courts generally issue very few limited orders, particularly in the early stages of the case.^ ^ ^

In New Hampshire, the number of restraining orders issued at arraignment following arrest for domestic violence are consistent with the number of arrests for domestic violence. Other jurisdictions similarly impose restraining orders uniformly as a condition of bail.^ ^ ^ ^ Those restraining orders are almost always no-contact orders.^ Making a no-contact order a mandatory condition of pre-trial release following an arrest for domestic violence was a recommendation of the National Council of Juvenile and Family Court Judges in the early 1990s.^ A no-contact order can essentially evict a person from her home and deny her freedom to communication with intimates, family members, and children. Forgoing case-specific judging of the appropriateness of suspending fundamental liberties in judging pre-trial release (bail) can be understood only in the context of domestic-violence emergency law.

No-contact orders have been established by law prior to any judicial action. Utah law imposes a no-contact order before any judgment about pre-trial release:

Upon arrest for domestic violence, and before the person is released on bail, recognizance, or otherwise, the person may not personally contact the alleged victim of domestic violence. (Utah Code §77-36-2.5(1)(a))

Telephoning a family or household member for help is common behavior following arrest. If that family or household member is the alleged domestic-violence victim, in Utah such contact is illegal. That’s true even if the family or household member objected to the arrest. Utah law also requires, irrespective of case-specific circumstances, an alleged perpetrator of domestic-violence to remain in jail for at least one full court day unless a no-contact order is imposed.

Courts have justified uniformly issuing restraining orders at arraignment without the appearance of either party and without any other testimony. A New York State criminal court reasoned:

The great potential for violence and intimidation which is present when both the victim and the perpetrator of domestic violence continue to live under the same roof is self-evident. (People v. Forman, 546 N.Y.S. 2d 755, (Crim. Ct. 1989))

Whether there is in fact a victim and perpetrator of domestic violence, and who they respectively are, isn’t judged at arraignment. After an allegation of domestic violence between intimates has been brought to the attention of the judicial system, the additional risk from them continuing to live under the same roof, if their circumstances or their choices produce that result, is far from self-evident. Evidence of common circumstances of arrests for domestic violence, considered reasonably in relation to other generic risks of public concern, provides no support for this “self-evident” belief. The court invoked emergency law to suppress reasoning beyond its claim of “self-evident” public justification:

the State has an interest in the issuance of the TOP {Temporary Order of Protection, meaning an initial restraining order} at the earliest possible time, since the danger of intimidation and injury to the complainant, if it exists, is an immediate one. In a very real sense, the issuance of such a temporary order of protection as a condition of bail or recognizance at the time a defendant is arraigned is an emergency decision.

Despite the strength of defendant’s constitutional interest, and the evident if unquantifiable risk of error, the emergency nature of the decision, as well as the practical difficulties inherent in convening an immediate evidentiary hearing, mitigate against the imposition of such hearings as constitutionally required before a TOP may first be issued at arraignment. (People v. Forman)

Protecting fundamental liberties under law isn’t a matter of particular administrative difficulties of particular legal procedures. An important legal question is this: do U.S. courts need good case-specific reason for evicting a person from her home, imposing a de facto divorce from her spouse, and depriving her of contact with her children for a week, and often much longer? The current answer: no.^

Procedures in the criminal justice system in Brooklyn underscore the obliteration of fundamental rights in processing of domestic violence arrests. For arrests for domestic violence in Brooklyn, restraining orders are uniformly issued at arraignment. If the prosecutor judges that insufficient evidence exists to get a conviction on even just a violation, the prosecutor nonetheless keeps the case active as long as is legally possible. That’s 30 days. Hence for no substantive reason a person is deprived of fundamental liberties for 30 days. For lack of evidence on a misdemeanor charge, the corresponding restraining duration is 60 days.^ In short, a person can be evicted from her home and denied contact with her children for 30 days or 60 days after arrest in circumstances that a prosecutor judges don’t even provide sufficient evidence for a conviction on a violation or a misdemeanor offense, respectively. That’s a grotesque justice system.

In Brooklyn, prosecutors also apparently participate in video-taped questioning of domestic violence suspects prior to those suspects being legally informed of the charges against them. After booking the suspect but prior to arraignment, the arresting officer brings the suspect in leg shackles and handcuffs to a screening room.^ In the screening room, an Assistant District Attorney questions the unrepresented suspect on charges not yet legally filed:

To begin the interview, the video camera starts recording and the screener {an Assistant District Attorney} Mirandizes the defendant {who at this point is formally still just a suspect}. If the defendant asks for an attorney and/or refuses to make a statement, the interview is concluded and the camera stops recording. If the defendant agrees to make a statement, recording continues and the screener asks the defendant to describe the incident that led to the arrest. … Most defendants will make a substantive statement, particularly those arrested and questioned within a few hours of the incident. In Brooklyn, about 80% of defendants made a substantive statement. Defendants who were injured and those who were facing {yet unfiled} charges that were more serious were especially likely to make a substantive statement. The questioning strategy used by the Annex screeners {Assistant District Attorneys} was persistent, low-key, and probing, and often produced valuable admissions.^

A injured domestic-violence defendant, in shock at being arrested, unsure about what charges he’s facing, and having had little opportunity to consult with anyone, isn’t likely to respond reasonably to a Miranda warning. That questioning regime, not surprisingly, increases conviction rates.^ Because video-taped pre-arraignment questioning by prosecutors is limited by the working hours and capacity of the video room, whether domestic violence defendants are subject to this interrogation regime depends systematically on extra-legal factors.^ So too then does the probability of conviction.

In the U.S., arrests for domestic violence account for the majority of arrests for interpersonal violence. About a million arrests for domestic violence occur in the U.S. per year. Domestic violence warrantless arrest and mandatory arrest laws and policies contribute significantly to the predominance of domestic violence arrests among arrests for interpersonal violence. Laws and policies that encourage the imposition of restraining orders as a condition of pre-trial release following arrest for domestic violence increase the scope of justice system control with little expenditure of time and resources in administering justice. Moreover, initial restraining orders cursorily issued without normal due process of law are routinely renewed during the pendency of a criminal trial.^ An initial restraining order can thus effectively endure for months. Violation of a restraining order is a relatively easily proved criminal charge. The criminal justice system’s handling of domestic violence allegations greatly reduces the costs of generating mass incarceration through mundane justice system processing separate from due process of law.

Across U.S. states, the passage of mandatory arrest laws for domestic violence has been associated with a significant increase in domestic violence homicides. Published, peer-reviewed econometric analysis of cross-section/time-series yearly data on aggregate intimate-partner homicides and the year of passage of mandatory arrest laws indicates that mandatory arrest laws increased intimate homicides per capita by roughly 50%.^ That’s plausible: mandatory arrest laws and the issuing of restraining orders at arraignment for domestic violence can transform a minor conflict into one party being evicted from her home and deprived of custody of her children.^ The latter are clearly traumatic events that could even lead to homicide and suicide. However, relative to arrest for domestic violence (about a million per year), intimate-partner homicide is a very rare event (about 2000 per year in 1995, the median year of passage for the mandatory arrest laws included in the analysis). Most incidents of domestic violence that come to the attention of the police do not involve behavior that would otherwise be regarded as criminally serious. The econometric analysis did not explore the sensitivity of its findings to alternative categorizations of mandatory arrest laws.^ Whether the econometric analysis truly extracted a causal signal of very low probability in an analysis of aggregate data seems questionable. More significantly, the published work didn’t consider whether the injustice of the state response to domestic violence might contribute to the retaliatory homicidal effect it claimed to have found. In contrast, the article declared in conclusion, “mandating arrest is insufficient to deter abusers from killing their victims.”^ The beatings will increase until morale improves.

Police procedures in making arrests and court procedures in determining pre-trial release represent the most common public face of the criminal justice system in action. Trust is crucial for human flourishing. Family law is constitutional law in ordinary life. Highly misleading public discussion of domestic violence and harsh, extraordinary justice system action addressing claims of domestic violence provides good cause for persons to fear each other and doubt the justice of the justice system.

Savage, Frontier Justice in Judging Domestic Violence

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Certain restraining orders commonly called “emergency protective orders” effectively provide harsh punishment without the legal formalisms of arrest and due process of law. Established at the scene of a domestic violence allegation, an emergency protective order can order the alleged perpetrator to leave her home, to cease communication and association with named persons including her own children, to surrender weapons, and to cede control of personal property. The issuance of emergency protective orders essentially integrates the judge and the law-enforcer with a gun, acting immediately on the scene of an incident. That’s savage, frontier justice.

The issuing of emergency protective orders is under the supervision of judicial officers only in a highly attenuated sense. The law-enforcement officer at the scene of an incident normally makes a telephone call to a judicial officer to get authority for an emergency protective order. Under California law, the “judicial officer” responsible for authorizing the order is a “judge, commissioner, or referee” to whom the presiding superior court judge designates (Family Code Sec. 6241). That “judicial officer” need not have any other publicly affirmed judicial position or any other particular legal qualification. Yet this “judicial officer” makes telephone-call judgments about a person’s fundamental civil liberties.

The role of the “judicial officer” in issuing police-solicited deprivations of fundamental liberties appears to be pro forma. This official judicial position must be staffed around the clock, seven days a week. The California Attorney General’s 2005 Task Force approvingly noted:

the Superior Court there {in Fresno County, California} has adopted a Standing Order that allows law enforcement to issue an EPO {emergency protective order} for the court, without having to contact the court, if the victim reports an act of domestic violence, has a visible injury, and the officer believes there is an immediate and present danger to the victim.^

In California from Oct. 1, 2003 to Sept. 30, 2004, emergency protective orders entered into the state-wide retraining order database numbered 25,483. Finding that these emergency protective orders were being under-utilized, the California Attorney General’s Task Force urged as a “minimum standard”:

Law enforcement in each county should adopt policies that strongly encourage officers to request Emergency Protective Orders (EPO); and the Superior Court in each county should adopt policies and procedures that maximize the accessibility and availability of EPOs.^

While incarceration is publicly expensive, restraining orders are low-cost means of extraordinary coercive control. Restraining orders are commonly issued at arraignment following arrest for domestic violence. Emergency protective orders streamline that process by eliminating the need for arrest and arraignment.

In California, authority to administer such justice is not just limited to professional, public police officers. Under the specific part of the California Family Code that provides for emergency protective orders, “law enforcement officer” is specifically defined to include peace officers employed by universities, community colleges, and schools; “a parole officer, probation officer, or deputy probation officer”; and “a peace officer of the Department of Parks and Recreation,” among others (Family Code Sec. 6240). The awesome legal force of an emergency protective order is vested broadly and indiscriminately across persons acting as judicial and law-enforcement officials.

Decisions of “law enforcement officers” to secure an emergency protective order likely has enduring legal effects. In the U.S., an emergency protective order typically formally expires in three to ten days (depending on state law). The issuance of an emergency protective order serves as proof of abuse without the direct testimony of the officer who secured it.^ An initial civil-court restraining order issues ex parte. The existence of an emergency protective order almost surely ensures, without any further examination of the facts, the issuance of an initial civil restraining order. A subsequent restraining order of much longer duration may issue after a hearing scheduled within two or three weeks of issuing the initial restraining order. That hearing is conducted as a short, informal summary judgment. The respondent has no procedural rights to take depositions and to call and cross-examine witnesses. The existence of an emergency protective order, without the direct testimony of the officer who secured it, surely weighs heavily in the issuance of further restraining orders depriving persons of fundamental liberties for years.

The savage, frontier justice of emergency protective orders in California has surprisingly widespread endorsement in civilized society. The U.S. National Council of Juvenile and Family Court Judges’ 1994 Model Code on domestic violence declared:

A court may issue a written or oral emergency order for protection ex parte when a law enforcement officer states to the court in person or by telephone, and the court finds reasonable grounds to believe, that the petitioner is in immediate danger of domestic or family violence based on an allegation of a recent incident of domestic or family violence by a family or household member.^

Under this section, based on nothing more than a telephone call to a 24-hour, 7-day-a-week “court,” the Model Code explicitly provided authority to evict the targeted person from her home, exclude her from “any specified place frequented by the petitioner and any designated family or household member,” deprive her of custody of her children, and deprive her of possession and use of her automobile. Emphasizing the lawless nature of the law, the Model Code also authorized the authority to:

Order such other relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member

The court makes such a determination without necessarily having any better evidence than what the police office says over the telephone about the allegations that the alleged victim said about a “recent” incident of domestic violence. Such orders formally last for up to three days under the Model Code, but in practice can be extended. At least five U.S. states, from Massachusetts to California, have adopted such emergency protective order law.^

Emergency protective orders indicate fundamental problems in the justice system. Public communication poorly presents and evaluates risks, particularly risks sensationally involving sex and violence. Public communication has widely disseminated exaggerated, grotesquely false claims about domestic violence against women, while domestic violence against men has largely been ignored. The circumstances of domestic-violence calls for state action have been publicly misrepresented. One result is savage, frontier justice across the U.S. today in the legal form of emergency protective orders. That isn’t equal justice under law for men and women.