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The Fourth Amendment of the Bill of Rights:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
guarantees us due process (judicial review, our day in court) before certain actions can be taken against us. Unfortunately, this is being steadily chipped away by various levels of government. The authorities make use of technology-provided, new means of search and we have to fight them constantly to get our rights back. Add to that various excuses used to try to expand government powers and our area of protection gets smaller and smaller.
Yes, stopping crime is a valuable benefit to a society, but a police state is worse than one in which there is crime. That is why this constant Fourth Amendment encroachment needs to be fought against.
The list above could be expanded to great length, but it would take an article of greater length to describe it all. I’d like to describe yet another of such Fourth Amendment violation, one that, unfortunately, many people think is ok, because they seemingly haven’t thought through (or lived through) the consequences.
The temporary restraining order, or TRO, is a device by which one person can accuse another person of certain things and compel that other person to do or not do certain things without the other person being able to put up a defense until a later date. Supposedly some things are so important, at least to someone, that it’s ok to do damage to someone else to protect the first person. For example, during the breakup of a marriage or similar relationship, a woman is threatened with violence by her (former) partner. She can go to a judge and request a TRO that would force the man to keep away from her (a “stay-away” order, also containing other boilerplate provisions). That sounds good, on the surface. In reality, it gets a lot more complicated and awful.
Before continuing, I turn to Lyndon Johnson. As much as I disagreed with him in the Vietnam years about the war, when he was president, I look back on him as the last resident of the White House who seemed really presidential. Having been the “master of the Senate,” he really understood the legislative process. Lyndon said “You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered.”
And there’s the rub! The way the TRO law is administered, one person’s accusation and restrictions are imposed upon the other, regardless of fact, with no opportunity to respond until a later date. By then, the damage is done.
There’s an old legal saying: “Justice delayed is justice denied.” In a country where a person is supposedly innocent until proven guilty, how can anyone square that principle with the TRO that imposes a type of punishment before the facts can be heard and verified by a court? I completely understand and sympathize with a person who has been threatened and needs to have the threat removed. However, with the TRO, the order doesn’t rely upon the fact that one person is threatened, but that a person says she is threatened, with no verification of truthfulness. It is common knowledge that people, sometimes men, sometimes women, make stuff up to get these TROs in order to gain some advantage in the divorce process. So-and-so is abusing the children; so-and-so threatened to kill me. These abuses are pretty common.
If you recall, back a few decades ago, the Red Brigade terrorists were active in Italy. At one point, they kidnapped former prime minister Aldo Moro. There were calls within the police establishment for the ability to use torture to get information leading to the recovery of Moro. One wise person in authority denied this, saying that “Italy can survive the loss of Aldo Moro, but it cannot survive the introduction of torture.” There is a lesson in that for us. I would suggest that the United States can survive some spousal violence, but it cannot survive the loss of due process. Don’t forget that the abuse of the TRO does not come from people in danger, but from people lying to gain some personal advantage! But even if the complainer is telling the truth, the accused person should be able to confront the accuser and address the severity of the requirements imposed by any restraining or stay-away order.
I will illustrate my argument with two examples, only one of which involves the dissolution of marriage.
Knowing that the next step would be a TRO ordering me to remove said items, there was value in being forthright, presenting the issue in a manner showing that a failure of that strategy after a hearing would be followed by litigation involving defamation of character and such things. Her lawyer evidently realized that and backed down. Unfortunately, the victim of such dishonesty is usually faced with an immediate TRO and doesn’t have the opportunity of making such a pugnacious reply to head off a court order, and must suffer consequences, even though there was never any thought or possibility of violence. The damage to the person receiving such a court order is done before any defense can be ordered. I feel lucky that the circumstances worked out the way they did.
Although I had been working with the local Sheriff’s department, feeding them information, no movement on their part to close the place down had been forthcoming. Shortly after the landlord’s decision to side with the tenants instead of the rest of humanity, a tenant left owner’s mother’s house, nearby, and came to my house. The person delivered to me a TRO from Hell. I was accused of numerous things, such as
How any judge could fall for this tripe was a mystery to me. I chalked it up to the fact that maybe he was an old guy on a late Thursday afternoon before a long weekend. Included in the order was not only the part where I must refrain from contacting the other person but a boilerplate paragraph stating that I must stay ____ yards away from his house. The number filled in was “100.” Since our houses are only about 60 feet apart, it meant that I was evicted from my property until the court hearing. There is even a provision in the TRO request form to have some of the restrictions applied to the accused without notification, i.e., to enable the accused be able to get arrested for violating provisions without being previously notified of their existence. After that was the other boilerplate paragraph, the one that states that I could not own or possess any firearms while this order was in effect (even though on the application for the TRO it was explicitly stated that there had been no threats!). It only listed 2 possibilities, that
Note that these permanent requirements were in a temporary restraining order. I met with several people, including a sheriff’s deputy and a gun dealer. The deputy told me that if I turned the guns into that department, it was unlikely that I would ever get them back. She suggested talking to a gun dealer. I did. He told me that there were actually several other possibilities, since in his experience the court was only interested in the fact that they were not under my control. I ended up making a legal transfer to a friend for the duration. Of course, this cost about $75 to do the transfer, and the same amount to transfer them back, some time later.
However, that was only the small change. The real kicker was the $5000 it cost me, in advance, to retain an attorney to advise me through the whole process. Being unemployed, that was a real hardship.
After a few days, I was able to get onto the judge’s calendar to get the stay-away distance lowered, to 10 yards, so that I could go home. After nearly a week in motels, I was able to do that, after phrasing the request in the ass-kissing manner necessary to request something of the issuing judge. Remember, this order was obtained easily by a tenant in the drug house next door, who requested that the TRO fees be waived because he didn’t have much money (because he spent what he had on crack or methamphetamine)! (His wife had left him for this reason shortly after he moved in.)
In the end, I resolved it through arbitration (to which I acceded only because it saved me $2000 of the $5000 I had paid the lawyer.)
There is no reason on earth why someone who has not actually hurt or threatened someone should have to suffer any of the costs or side effects of TROs. Any law that allows someone to take out any kind of order that takes away any right or confers any burden without giving that person an opportunity to defend himself or herself needs to be abolished. If there is a need to have some protection order take effect quickly, then the burden of speed needs to fall upon the judicial system to schedule things appropriately, not upon a person who might have done nothing at all. Moreover, if the moving party fails to get the order she or he requests, all costs should automatically fall on that person. I know some people, who are only concerned with a limited group of people, will object to their pet group not being in a position to call all of the shots, but the liberties that our country is supposed to espouse cannot survive unless due process in all situations is provided before any action is taken against someone.