How Do Massachusetts Restraining Orders Work?

This is a question I’m asked very often.  And there’s a reason that the question is on so many people’s minds.  The answer has to do with the extremely severe legal and, yes, political, environment that surrounds the availability of and issuance of restraining orders in Massachusetts.  These Orders fall under the category of Massachusetts Domestic Violence laws.

For starters, while everyone calls these orders “restraining orders” (and there is no problem doing that,) legally speaking, they’re known as “Abuse Prevention Orders”.  They are authorized by statute through M.G.L. Ch. 209A, and as a result are referred to informally by attorneys, police Departments and court personnel as “209A Orders”.  Anyone falling within certain statutory definitions can apply to a court for one of these orders, so long as the following conditions are met.

  • The applicant must be in fear of imminent, actual harm from:
  • Another person who is a member of the applicant’s immediate family; OR
  • Another person who residing in the same household as the applicant; OR
  • Another non-related person who is not married to the applicant, but who is in an ongoing dating relationship who the applicant.

If the above criteria are satisfied, any applicant can go the District Court having jurisdiction over the city or town where the applicant resides (the Police Department in that town can tell you which District court that is, and what the address is), and fill out an application that the court Clerk’s office will provide, which is called an “Application For Abuse Prevention Order”.  Attached to that application is an Affidavit that the applicant must complete and sign under pains and penalty of perjury.  On that same day, a judge will hear the applicant’s testimony as to why he or she feels they need such an Order (provided under oath), and in 99% of cases, the judge will issue a temporary Order that usually lasts a maximum of ten (10) days.

Also 99% of the time, the person against whom the Order is sought will not be present at this first hearing, which is called an “Ex Parte” hearing.  However, if issued, the temporary Order will list a date and time for a “full hearing”, at which both the plaintiff and the defendant will be required to appear.  A copy of the judge’s signed Order will be given to the applicant – who at this stage is referred to as the plaintiff, and a copy will be served on the person against whom the Order is issued, by the Police Department in the city or town where that person, who at this point is referred to as the defendant, resides. Obviously, the purpose of the full, two-party hearing is to afford the defendant the opportunity to rebut the allegations made against him or her.

The reason why Massachusetts Restraining Orders are so dangerous for defendants, is two-fold:

  • These Orders became much, much more muscular and common in the last several years, after a series of high-profile cases were reported in the media, highlighting murders and severe physical injuries that resulted to victims, when police called to a domestic violence situation either did not arrest the person that the victim accused, or did arrest the accused, but a judge did not issue a Restraining Order against the defendant when the case was called in court.  Those tragic events set the media ablaze, which set the Massachusetts Legislature ablaze, which resulted in a wholesale re-writing of Massachusetts domestic violence legislation.   How and under what circumstances Massachusetts police officers make arrests when responding to reports of domestic violence, and how Massachusetts Restraining Orders are issued by judges, all became extremely tough.  No more chances were going to be taken.  The most recent tragic example of why the judicial approach to granting restraining orders has become so tough, is illustrated in the July death of a young woman named Amanda Dabrowski.  I would suggest that anyone reading this blog post click on that link, to learn about this story.

What does this mean as concerns police enforcement?  It means this:  When Massachusetts police departments respond to a “domestic call”, as a Massachusetts Restraining Order attorney, I can pretty much guarantee you:  The officers responding to that call have already basically made up their mind:  They are not going back to the station without at least one of the parties being arrested.  The risk that an accused person, if not arrested, could later physically retaliate against the accuser after the police leave if no arrest is made, is too high.  It is informal policy in most all 351 Massachusetts police departments:  Don’t take any chances; make an arrest.

Massachusetts police officers are trained to ask the right questions to get the answers they want in order to justify an arrest, which is fairly easy:  Under Massachusetts law, an “Assault & Battery” is defined as, essentially, “An expectation of a harmful, unwanted or un-consented to touching”:  A very low threshold to make an arrest.  (Physical harm is not required to make an arrest.)  If officers see any signs whatsoever that lead them to believe even a threat has been made against someone – even signs of a possible victim having moist eyes, indicative of recently crying, they will make an arrest and let the lawyers and the court figure it out.  They won’t take any chances.

When the full (2-party) hearing is held before the (usually same) judge approximately ten (10) days later, the judge will hear testimony again from the plaintiff, and will then hear testimony from the defendant. This will be the defendant’s one chance to prevent the Order from being made “permanent” – this usually means one (1) year.  At the 2-party hearing, the defendant is not required to have an attorney represent him or her at this hearing, and because the defendant has not yet been charged with any criminal violation of the Order at the 2-party hearing, he or she is not entitled to a court-appointed attorney (public defender), if he cannot afford one.  But if a defendant appears at a full, 2-party hearing, and does not have an experience Massachusetts 209A attorney representing him or her, the odds that the plaintiff will succeed in making the Order “permanent” against the defendant are extremely highThis point leads to the second very important reason why these Orders are very dangerous for a defendant, which is:

  • While the issuance of a 209A Order (“Restraining Order”) is a civil matter, not a criminal matter or a criminal offense for the person (defendant) against whom the order is issued, a subsequent accusation by the plaintiff that the defendant violated any of the Order’s terms or conditions, is a criminal offense.  It may seem very unfair – and in many ways, it is unfair – but all that a plaintiff has to do after such an Order has been issued, is call the police and accuse the defendant of the slightest violation of the Order – as an example, coming within 40 feet of the plaintiff instead of 50 feet if that amount of distance is recited in the Order; or communicating with the plaintiff via email, phone or social media (prohibitions common in most all Orders), or appearing at the plaintiff’s workplace – or any other of a variety of potential Order violations – and the police will arrest that defendant.  That defendant will be brought into court the next business day the court is in session, be charged with violation of an Abuse Prevention Order, and that previously civil defendant will instantly become a criminal defendant.

Bottom line:  If you or someone you know have either been arrested or been served with notice of a hearing involving an Abuse Prevention Order against you, don’t be foolish:  Hire a very experienced Massachusetts Restraining Order attorney to defend you.  Research that attorney’s background, qualifications, reputation, and most importantly – case results and track record.  If you make a mistake, you probably won’t discover it until it’s too late.  And you likely won’t get a second chance.

The reputational, career, and social stakes in Massachusetts Restraining Order hearings are very high.  If you need us, send us a Contact Form, or better yet give us a call, and we’d be glad to provide you a free initial consultation.

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