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Permanent Restraining Order
Permanent Restraining Order in Los Angeles
If a temporary restraining order (“TRO”) is granted by a Los Angeles Superior Court judge, a second hearing will be scheduled thereafter – typically twenty-one days after the first hearing – to determine whether the TRO should be extended for a considerably longer term.
(Note: In April 2020, all California superior courts extended the 21-day TRO duration from twenty-one to ninety days in all domestic violence cases because of COVID-19.)
Similarly, even if the TRO request (or petition) is initially denied, the court will nevertheless schedule the second hearing to determine the same. In other words, the court will decide whether a permanent R.O. is merited now that the (alleged) emergency or exigency alleged at the TRO hearing has passed.
The term “permanent restraining order” itself is a misnomer because California law only allows a maximum duration for an R.O. of ten years – and even then only under the most extreme circumstances.
(Without exception, every other prominent criminal defense attorney and law firm in Los Angeles County that portrays themselves as experts or specialists in restraining orders claims that the maximum duration under California law for an R.O. is five years. This is simply not true – permanent restraining orders stemming from convictions for elder abuse, for example, can last as long as a decade.) See California Penal Code section 368(l).
Similarly, a stay-away order protecting a purported stalking victim can also last up to ten years, pursuant to California Penal Code section 649.9(k).
However, the law also allows the petitioner (the person seeking the “permanent” R.O.) to reapply (or attempt to modify) the R.O. before its initial term expires (typically three months before expiration of the original order).
This second hearing carries far greater consequences if it results in an “order after hearing” (the permanent R.O.) against you as the “restrained person”. For example, you might be forced to move out of your own home, stay away from your own child, and surrender your firearms.
You may even complicate any custody or immigration issues you’re currently facing. In addition, if you breach the terms of the restraining order, you can be prosecuted for certain crimes and face jail time or even years in prison.
As a result, the second hearing often takes the form of a mini-trial with the petitioner (the putative “protected person”), you, and third-party witnesses (including law enforcement personnel) testifying on the stand (and, therefore, subject to cross-examination by the parties’ respective counsel). Motions and documents filed either in support or in opposition to the petition also carry much greater weight than at the TRO hearing.
Indeed, even the legal threshold is much higher – it must be “clear and convincing” as opposed to the first hearing, where the court essentially requires only reasonable grounds or good cause to grant the TRO.
Terms of a Permanent Restraining Order
Permanent restraining orders take one or more of the following forms:
- a personal conduct order;
- a stay-away order; or
- a residence exclusion order.
Criminal Defense
Personal Conduct Orders
These R.O.s prohibit you from acting in a certain way towards the protected person (which can also include his or her family members or children), but are primarily intended to prevent you from harassing, abusing, threatening, contacting or stalking him or her.
A permanent restraining order that prohibits physical or mental abuse, or neglect, of an elderly person (age sixty-five or more) or a dependent adult (an adult age eighteen to sixty-four who is unable to care for himself or herself) falls into the category of personal conduct orders, pursuant to California Welfare and Institutions Code section 15610.07.
This is known as an elder abuse restraining order.
A gun violence restraining order is another type of personal conduct order that precludes you from owning, possessing, buying, selling, transporting or manufacturing any type of firearm. The same goes for ammunition, clips (magazines), and related items such as silencers, suppressors, laser scopes, etc.
See courts.ca.gov. See also California Code of Civil Procedure section 527.6(u).
In fact, this order requires you to immediately surrender all of your guns – even if someone else is storing them for you – to the police, who will come to your house and seize them as soon as possible after the order is issued. (Unlike other permanent R.O.s, gun violence R.O.s can be requested by a law enforcement officer.)
Stay-Away Orders
Stay-away orders (which are also referred to as “criminal protective orders”) are exactly what they sound like – orders prohibiting you from coming within a certain specified distance of the protected person, including at their place of work. If you share a child with the protected person, or work with him or her, then the dire consequences of these types of orders are obvious.
Residence Exclusion Orders
Sometimes referred to as “kick-out” or “move-out” orders, these require you to literally vacate any residence you share with the protected person – even if your child continues to live with him or her. These orders can be particularly jarring because as soon as one is issued, a police officer or sheriff’s deputy (depending on what part of LA you live in) will come to your home and ensure you quickly leave it, taking only clothing and personal possessions with you.
Defenses to Permanent Restraining Orders
The following defenses can be brought at the TRO hearing, the second hearing, or anytime thereafter during the duration of the restraining order upon a separate motion filed with the court, to be argued over at another hearing.
Substantive Defenses
Successful attacks on the underlying charges
The best way to defend against a permanent restraining order is to mount a strong defense to: (a) the underlying criminal charges (if they were in fact filed against you); or (b) facts that could result in criminal charges.
For example, if the petitioner is seeking to obtain a permanent R.O. against you based on a stalking allegation, then your defense lawyer should present just enough evidence at the hearing to defeat the petition. (However, if you are facing criminal charges, your lawyer should almost never reveal your entire defense strategy – particularly your strongest exculpatory evidence – or put you on the stand where you might incriminate yourself. This is particularly true if you are facing trial).
Specifically, the two elements that a prosecutor must prove to convict you for stalking under California Penal Code section 646.9 are:
- you intentionally, malevolently, and repeatedly followed the protected person; and
- you made a believable threat with which you intended to instill fear in him or her (or in a member of his or her immediate family).
Therefore, assuming you have the evidence to do so, your defense attorney should convince the court that, for example, you were never following the purported victim and, in fact, were merely taking the same route home every day.
Alternatively, your lawyer might argue that you were only joking when you threatened to burn the purported victim’s house down and, therefore, you lacked the specific-intent mindset necessary to convict you for stalking or to subject you to a permanent R.O. based on stalking.
Keep in mind, however, that the “clear and convincing evidence” standard required to issue a permanent restraining order is still significantly lower than the “proof beyond a reasonable doubt” standard necessary to convict you for a crime.
Material change in the facts or circumstances
Oftentimes your situation may change to such an extent that the court should be made aware of it for the purpose of defeating, rescinding or modifying a permanent R.O. (Again – and pursuant to California Code of Civil Procedure section 533 – this is always done by filing a motion with the court that includes all supporting documentary evidence, as well as your own sworn statement made under penalty of perjury, and which is determined at a subsequent hearing.)
For example, suppose your soon-to-be-ex-wife was able to convince the judge at your TRO hearing that you had assaulted her and so a temporary stay-away order was issued against you. However, on the eve of the second hearing (where her motion stated her intent to extend the order to five years), your lawyer’s private investigator uncovers video footage proving that she was the one who assaulted you (and that you were clearly acting in self-defense).
As a result, the judge would not only deny her request for an extension, but would almost certainly grant any “cross-petition” you wanted against her for a long-term protection order. Similarly, even if the five-year order was issued against you, if this footage came to light, say, a year later, your could go back into court and move for an immediate rescission.
Similarly, if there was a change in the law that would help you, or for any other reason that would serve “the ends of justice”, you can also file a Code of Civil Procedure section 533 motion.
Constitutionally protected activity is an absolute defense to a permanent restraining order
If you can convince the judge that instead of you harassing the petitioner, for example, you were actually engaged in activities that are protected by the United States Constitution – such as your right to free speech, protest or assembly – then the purported victim’s petition will be denied. See California Civil Code section 1708.7(f).
Self-defense or defense of others
Finally, as implied above, if the petitioner is claiming that a permanent R.O. is merited because you repeatedly assaulted him or her, then any evidence that, at all relevant times, you were acting in self-defense (because you reasonably believed you or a third party were in imminent danger), would enable you to defeat the petition.
Technical Defenses
The purported victim fails to appear at the second hearing
If for whatever reason the petitioner fails to appear at the permanent R.O. hearing, the court will typically dissolve the TRO. For example, on September 29, 2016, an LA judge issued a TRO against actor Anthony Michael Hall (The Breakfast Club) after his next-door neighbor allegedly presented video evidence of Hall spraying him with a water hose, then shoving him to the ground, resulting in the neighbor’s broken wrist. (The temporary restraining order included a no-harassment provision.) See tmz.com.
However, on October 13, 2016, at the permanent R.O. hearing, the neighbor failed to show, resulting in the judge dissolving the TRO. See tmz.com.
Restraining Order Databases
There are numerous national and statewide databases that record and track restraining orders, which law enforcement personnel and judicial personnel can access.
California Law Enforcement Telecommunications System (“CLETS”)
CLETS is by far the most commonly known and widely used R.O. database in the state, and is managed by the California Department of Justice. In fact, California law requires law enforcement personnel and judicial personnel to enter all restraining orders and protective orders into CLETS within one court day of being issued. See courts.ca.gov.
California Courts Protective Order Registry (“CCPOR”)
One of the largest databases utilized in this state is the California Courts Protective Order Registry, which along with all other relevant information, contains scanned PDF copies of the actual restraining or protective order signed by the judge.
One of CCPOR’s main priorities is conducting oversight of CLETS to ensure that R.O.s are timely and accurately entered into the system. In addition, CCPOR includes notes from judges regarding, for example, special conditions about the protected or restrained parties that are not available in CLETS. Finally, any information entered into CCPOR is automatically entered into CLETS. See courts.ca.gov.
California Restraining and Protective Order System (“CARPOS”)
Formerly known as the Domestic Violence Restraining Order System (“DVROS”), this statewide database focuses primarily on the entering and storage of information regarding TROs, but also for any other type of protection order (including regarding juveniles) except for emergency protective orders (EPOs).
This is the primary database used by the Los Angeles County Sheriff’s Department, largely because it also includes proofs of service of R.O.s., as well as information on protective orders that have long expired and are older than five years. See oag.ca.gov.
Examples of Celebrities Involved With/Affected by Permanent Restraining Orders
Billie Eilish
On June 18, 2020, Los Angeles County Superior Court judge Dianna Gould-Saltman extended a temporary restraining order that she issued three weeks earlier in favor of singer Billie Eilish against allegedly obsessed fan Prenell Rousseau. Specifically, the judge granted a three-years’-long, one-hundred-yard stay-away order against him for allegedly appearing at Eilish’s LA home repeatedly during the recent past.
(Her mother and father, who apparently lived with Eilish, were also identified as “protected persons” in the restraining order.)
Not surprisingly, the order also prohibited Rosseau – who had been arrested at least once for Trespassing (California Penal Code section 602) on Eilish’s property – from bothering or attacking Eilish or her parents. Notably, the judge denied Eilish’s request for a five-year order because Rosseau was not alleged to have bothered the family since the TRO hearing.
Amie Harwick (celebrity therapist, former fiancée of comedian Drew Carey)
In Marc 2012, professional photographer Gareth Pursehouse allegedly began Stalking (California Penal Code section 646.9) his ex-girlfriend, author, and therapist-to-the-stars Amie Harwick. On the first night of his campaign, he allegedly shattered almost a dozen framed photos of themselves together against her front door, then texted her an ominous warning. The following day, he allegedly plastered forty-eight roses on the same door.
On the third day, he allegedly returned and played music in front of her Hollywood Hills apartment complex. On day four, he allegedly e-mailed various threats to people in her closely knit social circle.
As a result, the following month in April 2012, Harwick successfully petitioned an L.A. Superior Court judge for a TRO against Pursehouse. Three weeks later, she was able to convince the same judge to extend the TRO for three years with a provision, among others (including a no-contact requirement), that he keep at least one hundred yards away from her at all times.
Unfortunately, in January 2020 (more than four-and-half years after the protection order expired in April 2015), they ran into each other at an event in Beverly Hills which he was hired to photograph. This chance encounter apparently (and allegedly) reignited Pursehouse’s obsession with her.
Approximately one month later, on February 18, 2020, he was arrested for suspicion of Second-Degree Murder (California Penal Code section 192(a)&(b)) after he allegedly threw her off her third-floor balcony (though no one seems to know how he allegedly gained entry into her home). His bail was set at two million dollars. See latimes.com.
Chris Brown
Eight years after singer Chris Brown pled guilty to a felony for Corporal Injury to Spouse or Cohabitant (California Penal Code section 273.5) (on his then-girlfriend, singer Rihanna) in 2009, Brown found himself once again the subject of domestic violence allegations – this time from model/actress Karrueche Tran.
Specifically, on February 17, 2017, Tran obtained a TRO against Brown after claiming he had punched her in the stomach and pushed her down a flight of stairs. She also told the judge that Brown had been physically abusing her for “years”, but over the previous several weeks had escalated the abuse by threatening to kill her. See California Penal Code section 422 (Making a Criminal Threat).
At the second hearing four months later (apparently delayed because Tran was unable to serve Brown), on June 15, 2017, the Santa Monica Superior Court judge extended the protective order to five years. Reportedly, tapes of Brown’s threatening voice mails were played, and his threatening texts were read, in open court, which helped convince the judge to grant the extension.
Sarah Hyland (actress on Modern Family)
On September 19, 2014, Sarah Hyland obtained a domestic violence TRO against her ex-boyfriend Matthew Prokop for allegedly choking her while spewing profanities at her, threatening to kill her dog, and constantly sending her threatening texts.
Three weeks later, on October 6, 2014, Hyland’s petition for a more permanent protective order was granted with the following provisions to remain in place for three years:
- he was to remain at least a hundred yards away from her, including her residence and place of employment, as well as her dog;
- abstain from threatening her; and
- give up his right to own or possess guns or ammo.