Can You Be Arrested for Violating a Restraining Order?
Understanding Restraining Orders and Violation
It is indeed possible to get arrested for violating a restraining order. However, it's a common misconception that the police alone determine whether a violation has occurred or not. Proof of a violation usually requires a court hearing, where it is decided whether the order has been breached. The police are there to enforce the law, not to adjudicate the specifics of the order.
For example, consider a situation where a wife seeks a restraining order against her husband to force him to move out of the house. The judge issues a restrictive order that clearly defines the terms under which the husband must comply. If the husband leaves the house but the wife still feels unsafe and calls the police, she may believe the order is not two-way. However, the terms of the order might allow her to visit the husband's residence under certain conditions, as long as the order doesn't explicitly prohibit it both ways.
Legal Interpretation and Enforcement
Restraining orders are legally binding documents, and their wording must be interpreted literally. The judge who issued the order has the final say on interpretation. So, if a wife overreacts and decides to invite her ex-husband back, he might still be held responsible if he enters the home, even if she initiated the meeting.
It's also important to note that restraining orders do not disappear just because one party decides to allow the other to re-enter their space. Only the judge can decide to modify or remove a restraining order, and they must be notified and given a chance to argue their case.
Ultimately, the wording of a restraining order must be deciphered accurately to avoid legal complications. Copies of the order should be kept, and advice from a legal professional might be necessary to ensure understanding and compliance.
Criminal Charges and Prosecution
For individuals who are the subjects of the restraining orders, law enforcement typically treats violations as criminal cases by default. If a person claims a violation, the police will file charges and the prosecution will proceed unless the victim requests otherwise. However, the decision to proceed is ultimately up to the prosecutor, not the victim.
The district attorney, usually an elected official, has a responsibility to pursue cases that uphold justice. They often have significant political pressure to file charges, especially in sensitive cases like potential acts of domestic violence. If they decide not to pursue charges, there is a risk of negative publicity, which could harm their political career.
Even without formal charges, if a victim complains about a violation, it may still lead to informal measures, such as filing a police report, which can affect the violator's reputation and future legal actions.
Limitations of Personal Filing
As a citizen, you cannot file criminal charges against individuals personally. Instead, you must obtain the help of the district attorney or an assistant state’s attorney. In practice, they may not always choose to file charges, especially if the case is not strong enough or if there are other complicating factors.
When a prosecutor doesn't take action, they might be protected by immunity, like qualified immunity for police officers. However, you can potentially file charges against the city or the police department if they knowingly violated your constitutional rights.
Civil charges, on the other hand, involve filing charges but do not necessarily lead to criminal prosecution. They can include actions like being held in contempt of court for violating a restraining order.
Filing Civil Charges and Legal Fees
Filing civil charges against someone typically involves a filing fee, which can range from a few hundred dollars to several hundred dollars, depending on the court. For cases involving police officers, it is advisable to file in federal court, as the federal court system might be more favorable to you.
When choosing a judge for your case, be aware that the judge's political affiliation can significantly impact the outcome. Judges appointed by Republican presidents might be less sympathetic to plaintiffs, especially in cases involving law enforcement.
Given the complexity and potential for retaliation, it's crucial to approach these legal issues with caution. Seeking professional legal advice is strongly recommended to ensure you navigate the process appropriately.
Keywords: restraining order, legal consequences, violation