Expert Advice
Nov. 2, 2007
Fighting Protective Orders in Criminal Practice
Many protective orders are issued routinely in criminal cases—without true cause or jurisdiction. Here's how and when to fight them. By Glen T. Jonas
In criminal cases alleging a violent crime, the unwary defendant is often quickly slapped with a protective order at the first court appearance. But a protective order may sometimes do more harm than good.
For example, imagine that a wife has been drinking, and her husband physically restrains her from attempting to drive off with their child. In the process, the wife suffers minor injuries, the police are called, and the husband is arrested. Ultimately, the husband would likely prevail in court. However, that could take months. In the interim, if a protective order is in place, he must move out of the home and is deprived of regular contact with his children. In such a circumstance, the children suffer, the wife's drinking problem goes unaddressed, and further damage is done to the family?all in the name of "protecting" the wife.
Protective orders are issued pursuant to California Penal Code section 136.2 upon a good-cause belief that a victim or witness has suffered or will suffer harm, intimidation, or dissuasion at the hands of a defendant. However, in today's skittish legal environment, most judges would rather be safe than sorry. In violent-crime cases, prosecutors often seek protective orders, and judges sign them as a matter of course.
Commonly, two problems arise: Such orders are issued without proper supporting grounds, or they go beyond the court's jurisdictional limits.
An allegation that a defendant assaulted another person does not justify issuing a protective order under section 136.2. The statutory provision was drafted with the specific goal of preserving the integrity of criminal proceedings by protecting those participating in them from being intimidated or dissuaded, as opposed to the more general goal of protecting them from harm or harassment. A person who needs physical protection has the option of applying for a restraining order under California Code of Civil Procedure section 527.6.
Because section 136.2 has a more narrow scope, it has been interpreted to authorize only orders that are germane to the criminal proceedings. Simply assaulting a person does not reveal an intent to dissuade a victim or witness or otherwise interfere with the integrity of a criminal proceeding.
For example, in People v. Stone, one roommate nagged another about missing toilet paper. The accused toilet-paper thief took offense and punched his roommate in the face three times, threatened to kill him, and then choked him. A three-year restraining order was issued. The defendant ultimately was sentenced to four years in state prison. But he argued that the protective order went beyond the jurisdiction of the court, and the appellate court agreed. (123 Cal. App. 4th 153 (2004).)
The appellate court in Stone reasoned that there was no ongoing criminal proceeding at the time of the attack. It also found no evidence that any victims or witnesses were harmed, intimidated, or dissuaded, and no likelihood that such harm would occur after they became victims or witnesses in an ongoing proceeding. For example, there was no evidence that after his arrest, the defendant or anyone acting on his behalf made any effort to dissuade the victim from testifying against him or going forward with the case. Thus, there was no good cause for the protective order to be issued.
Additionally, because the defendant was not placed on probation, the appellate court recognized that the trial court no longer had jurisdiction over the defendant. A protective order under section 136.2 cannot go beyond the period of probation; it must be limited to the pending criminal proceeding.
In another twist, in United States v. Henderson (2006 U.S. Dist. LEXIS 62387), the defendant faced federal charges of possessing a firearm in violation of a state courtissued protective order. A protective order was issued "pending trial"?in this instance a probation-revocation hearing. The order had a three-year term, but the probation-revocation proceedings had been dismissed well before that time. The court dismissed the federal criminal charges, finding that the protective order had already expired by the time the probation revocation was dismissed because it was only an order pending trial.
Defense attorneys would be well advised to have a bench brief prepared in every case in which they represent a client charged with a violent crime. Although there are many instances in which a section 136.2 protective order may be appropriate, there are probably an equal number of times they are sought or issued in violation of these holdings.
Glen T. Jonas (crimattrny@aol.com), a partner at Jonas & Driscoll in Los Angeles, practices criminal defense law.
Megan Kinneyn
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