A criminal restraining order is a court order issued by a judge to protect someone from a “Restrained Person.” It may be issued after the defendant (the Restrained Person) is arrested, charged, or found guilty of certain crimes against the party seeking the order. The case is filed by the District Attorney’s Office on behalf of the People. To request a criminal restraining order, you may wish to start by contacting your county’s District Attorney’s Office and speaking with the victim advocate about how to secure the order. The precise terms and rules surrounding criminal restraining orders may vary by state, but are probably readily available on your state court’s website at the self-help section. See, for example, Santa Clara County Superior Court’s self-help section on criminal restraining orders here.
A civil restraining order is a court order issued by a judge that prevents the defendant from doing or publishing certain things or going to certain places. *You* file the request for a civil restraining order. Because this is a *civil* restraining order, the District Attorney’s Office is not involved. If the defendant violates the civil restraining order, he or she is likely to be found liable for “civil contempt;” violating a civil restraining order can also carry criminal penalties.
So how do you get a civil restraining order? You can represent yourself, and we explain this route in more detail below. However, if you have the resources to hire an attorney, this is a good time to do so.
Whether you represent yourself or hire an attorney, you should consider answers to the following questions, most of which should be readily available on your state court’s website self-help section. See, for example, Santa Clara County Superior Court’s self-help section on civil harassment orders here.
What kind of restraining order are you seeking? Typical choices include a domestic restraining order (for those with whom you have been in a romantic relationship) or a civil harassment restraining order (for everyone else). Some states, such as Florida, offer special cyber-harassment restraining orders, but it is not necessary for your state to have a cyber-harassment restraining order for its restraining orders to apply to conduct that occurs online. You, or your attorney, can draft the terms of the proposed order you wish to receive from the court, and specify that the order applies to online and offline behavior in that proposed order. It’s important to recognize that old laws (and old practices regarding restraining orders) sometimes must be applied to the new facts of the day, and that efforts to enact new cyber-specific laws are often unnecessary and arguably even harmful because such laws creates the false impression that existing laws aren’t adequate. They often are. They simply need to be enforced!
From what court should I seek a civil restraining order? And, do I have a choice? You typically have at least two choices in selecting a court: family court or state court. Consider and weigh the following: Which court is more likely to have experience in matters of anonymous speech and online invasions of privacy? This is a very important factor to consider, because judges who are familiar with technology and the relevant speech/privacy balancing tests might issue rulings that are more nuanced and thoughtful in your particular case; they are also more likely to provide a concrete precedent for future litigants. Next, which court is more likely to appreciate the sensitive, private nature of the dispute, or the special circumstances that surround domestic disputes, especially if your situation involves children? Does one court offer more favorable law or procedure than the other? How much publicity will your filing attract? Family court filings may be more likely to fly under the radar. In certain states, family court records are entitled to a greater degree of privacy protection, whereas civil court filings are more frequently tracked and picked for publication online. There are pros and cons to either choice, and an attorney can help you consider these questions before you bring an action, and help ensure that the forum you select is the one in which you are the most likely to achieve your goals.