In California, the first step in a domestic violence case is often the alleged victim’s filing an application for a ‘CLETS TRO.’ TRO stands for Temporary Restraining Order; ‘temporary’ means between one and five years, renewable indefinitely. A CLETS TRO is one that is entered into law enforcement databases and shows up whenever the restrained party’s name is run for identification.
There is a right to a hearing on a CLETS TRO, but it is a limited right. Because the scope of the hearing is limited, it is much easier to have someone restrained under a TRO than it is to convict someone of a crime. Why? Because …
Because there is no right to a jury trial — the judge hears evidence and decides the case. Because there is no right to an attorney — if you can’t afford one, you represent yourself. Because the burden of proof is lower than in a criminal case — the person seeking the TRO only has to produce a preponderance of the evidence, rather than evidence beyond a reasonable doubt. Finally, judges can, and often do, choose to restrict what evidence and testimony the parties can present at the hearing. For all of these reasons, it is much harder to defend an application for a TRO than a criminal case. Accordingly, even when the prosecution refuses to press charges because of insufficient evidence, the Family Court often still issues a CLETS order.
The aftermath of a CLETS TRO is brutal. The restrained party suffers a substantial reduction of, or outright denial of, many Constitutional rights. Among those rights are free travel, free association, 2nd Amendment firearms rights, and free speech. How are those rights affected?
The obvious one is that in California a CLETS TRO will always require the restrained party to surrender any and all firearms. “Bah!” cry the nay-sayers. “And what of it? Guns are soooo RISKY; let’s just err on the side of caution and strip a Constitutional right after a quick, pro se hearing decided on the basis of limited evidence.” Maybe the defendant never owned a gun. Just for the sake of argument, let’s pretend he didn’t. Heck — let’s pretend that every gun in the world (POOF!) just disappeared. Guns are not an issue, so no problem! You’re simply forbidden to come within 150 yards of your spouse, children, and other family members; to communicate with them either directly or indirectly; to drive your own car or play with your dog …
You cannot live with your spouse; you must move. You cannot come within 150 yards of your spouse’s house or workplace; you need to make substantial changes to your daily commute. You need to find and join new schools, churches, bars, concert venues, AA meetings, book clubs, volunteer opportunities, dog parks — anywhere that your ex goes, you can’t go. You may need to quit your job if you can’t work different hours or transfer to a new location. You cannot go see your kid’s school play, or send your kid a birthday card, or tell your kid’s teacher to tell your kid that you’re proud of his good grades.
These aren’t exaggerations, either. I once prosecuted someone for violating a 150 yard stay-away order by driving past his neighbor’s house on a public street; the next-shortest route to the ‘perpetrator’s’ home was 10 miles and 40 minutes longer. I’ve seen people criminally charged with failing to leave the grocery store/coffee shop/laundromat fast enough when the ‘protected party’ came in; I’ve seen people spend thousands of dollars on bail and lawyers to prove that the Facebook photo of them holding a rifle on a hunting trip was taken before the CLETS order went into effect …
Traveling unhindered, freedom of speech, associating freely, and making an honest living are all Constitutional rights. Having them stripped from you because of false accusations made during a 30-minute hearing with no right to a lawyer and a low evidentiary burden is a Constitutional nightmare. A good attorney representing you may be all that stands between you and the Freddy Kruger of the legal system.
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