How to Appeal a Restraining Order

I get a lot of calls from people who have a 209A Abuse Prevention Order or a 258E Harassment Prevention Order against them, who contested the order at a hearing (with or without a lawyer), lost, and want to appeal.  Less often, we hear from unsuccessful plaintiffs who want to appeal the denial of a restraining order.  Often the lawyers who handle those hearings do not handle the appeals, but we do.

Here are some of the most common reasons to appeal a restraining order:

Insufficient Evidence: this is the single most common reason for successful restraining order appeals.  The law has strict requirements that a plaintiff must meet to get a restraining order.  A 209A plaintiff must show that they and the defendant are “family or household members” and that the defendant either 1) caused or attempted to cause serious physical harm, 2) sexually abused the plaintiff, or 3) caused the Plaintiff a reasonable fear of imminent, serious physical harm.  A 258E plaintiff has to show that the defendant committed three acts of willful and malicious conduct, targeting the plaintiff, that was intended to and did in fact cause fear of physical harm or property damage, intimidation, abuse, or actually caused physical harm or property damage.  Often, judges grant restraining orders when they simply feel that two people should be apart from one another, even when the plaintiff has not shown that they meet the legal criteria.  In these cases, the Appeals Court will reverse (or “vacate”) the restraining order.  We have represented defendants who were subject to restraining orders for such lawful conduct as chopping vegetables with an angry face, attending a concert, or driving down the street.  In other cases, the conduct may be improper (such as egging a car), but still not grounds for a restraining order.

Free Speech: The Appellate Courts in Massachusetts have repeatedly noted over the past six years that chapter 258E, the harassment order law, goes beyond the bounds of what the First Amendment allows by restricting protected speech.  The appellate courts have imposed what lawyers call a “narrowing construction,” meaning that they have ordered the District Court to interpret the law more narrowly than it is written to avoid trampling on Free Speech rights.  Even though this narrowing construction is over six years old, many District Court judges seem to have missed the memo, creating fertile ground for appeals when the judge applied the wrong law.

Extension Hearings: these are contentious issues for both plaintiffs and defendants.  If a plaintiff comes into court on the date the restraining order is scheduled to expire and asks it to be extended, the judge is supposed to grant the extension in one of two cases.  First, the defendant perpetrated an act of contact abuse (physical or sexual), and the plaintiff still wants to continue the order.  Second, the defendant put the plaintiff in reasonable fear of imminent, serious, physical harm, and the plaintiff shows that the reasonable fear still continues.  Plaintiffs most often appeal in contact abuse cases where the judge has mistakenly applied the wrong law and denied the restraining order on the grounds that the plaintiff no longer suffers a “reasonable fear.”  A defendant may appeal an extension when the judge extended the order for some other reason.  We have seen illegal extensions for reasons including “[Plaintiff] shouldn’t have to keep coming back here,” or “defendant is accused of a violation.”

Expungement and Fraud on the Court: we often hear from Defendants who want to vacate and expunge a restraining order on the grounds that the plaintiff committed fraud on the court.  Not a true appeal, these cases go back to the judge who heard the original restraining order.  To win, the defendant has to be able to prove that the Plaintiff engaged in a deliberate scheme to defraud the court and get a restraining order that they would not have gotten if the judge knew the truth.  These are difficult and expensive cases because the judge already decided that they believe the plaintiff and not the defendant, but if the defendant can bring new evidence to show fraud, the judge may consider a motion to vacate and expunge.

Plaintiff Appeals from Denied Restraining Orders: sometimes we represent plaintiffs who appeal after they were denied the protection of a restraining order.  Most disturbingly, we have a case currently pending before the Mass Appeals Court where a judge denied a rape victim a restraining order against her rapist because he didn’t “physically” abuse her.

If you have an issue with a restraining order in Massachusetts and want to talk about an appeal, please give us a call at 617-749-2353.  We also welcome referrals and co-counseling inquiries from trial/hearing counsel.

 

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