BACKGROUND INFORMATION ON RESTRAINING ORDERS

1.2.11.Summary of the Ten Sections of ch.209A

Mass. Gen. Laws. ch. 209A was signed into law in July 1978, but has been amended in 1983, 1984, 1987, 1990, 1991, 1992, 1993, 1994, 1995, 1996, 2000 and 2003. A copy of the statute is included in the appendices, section 9.1, along with a sample 209A complaint form.

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   Attempting to cause or causing physical harm
   

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  The elements of proof for a criminal violation for “attempting to cause . . .physical harm” are the same as other criminal attempt offenses . . . there must be an overt act towards the substantive offense. Commonwealth v. Fortier, 439 Mass. 1104 (2003).
  

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  closely approximates assault: “In determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of the defendant in light of the attendant circumstances.” Commonwealth v. Gordon, 407 Mass. 340, 349 (1990).
  

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  marital status irrelevant, Commonwealth v.. Chretien, 383 Mass. 123, 130-131 (1981)
  

The standard for determining whether actions constitute abuse under ch. 209A is an objective one – the plaintiff’s subjective beliefs are an insufficient basis for granting a restraining order. Carroll v. Kartell, 56 Mass. App. Ct. 83 (2002).

a) are or were married

b) are or were living together (“residing together in the same household”)

c) are or were related by blood or marriage (including in-laws and step-children)(Paternal grandmother who has custody of her grandchild successfully obtained an order against the child’s mother reasoning the grandmother is related by blood to her grandchild’s mother. Turner v. Lewis, 434 Mass. 331 (2001)).

d) have a child in common (regardless of whether they have ever married or lived together)

e) “are or have been in a substantive dating or engagement relationship”

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  factors judges are to consider:
  

2) type of relationship

3) frequency of interaction

4) if the relationship was terminated, length of time since being terminated

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  requires abuser to leave and remain away
  
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  not merely surrendering legal occupancy (Commonwealth v. Gordon, 407 Mass. 340, 346-348 (1990)
  
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  from a premises: a household, a multiple family dwelling, a workplace
  
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  surrender keys in possession
  
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  refrain from damaging plaintiff’s property, shutting off mail or utility services, or interfering with the plaintiff’s right of possession
  

any injunction or other order

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  issued by a court of another U.S. state, territory or possession, Puerto Rico, or D.C., or a tribal court
  
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  for the purpose of preventing violent or threatening acts, or harassment against, contact with, communication with, or physical proximity to another person
  
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  including temporary and final orders, by civil and criminal courts, filed by or on behalf of a person
  

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  venue is appropriate in a District, Superior, or Probate Court
  
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  either where the plaintiff resided at the time the abuse occurred
  
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  or if she has left the residence to avoid the abuse, where she resides at the time of the complaint
  
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  case may be consolidated with prior divorce, custody, support petitions
  
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  venue may be issued to residents of federal enclaves (i.e. military bases), Cobb v. Cobb, 406 Mass. 21, 26 (1989)
  

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  A petition for relief may be filed by “a person suffering abuse from an adult or minor family or household member”
  
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  The plaintiff must reveal “any prior or pending actions involving the parties for divorce, annulment, paternity, custody or support, guardianship, separate support or legal separation, or abuse prevention.” Probate Court custody and support orders supersede
  
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  There is no requirement that a plaintiff pursue criminal remedies
  
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  Mutual restraining orders may only be entered on specific written findings of fact
  
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  There is no statute of limitations on the filing of a complaint
  
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  Every order must state the time and date of its expiration, and the date for a continuation hearing
  
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  The court may draft specific orders tailored to the individual needs of the plaintiff
  

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  The plaintiff may request the court to order any of the following, and the court may order, any of the following, whether the defendant is an adult or a minor:
  

a) refrain from abusing the plaintiff

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  The Court may recommend:
  

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  The Court may not:
  

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  Deny a complaint solely because it was not filed within a particular time period following the last alleged incident of abuse
  

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  Enter orders affecting title to real estate
  

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  Compel mediation between the parties
  

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  Charge a filing fee for the complaint
  

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  Charge for certified copies of any orders entered
  

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  The complainant must be informed that proceedings under Chapter 209A are civil in nature, but violations are punished criminally
  
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  The District Attorney’s Office must inform the complainant about other pertinent criminal proceedings, including a complaint for stalking
  

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  When an order is issued, and the judge finds the plaintiff has demonstrated a substantial likelihood of immediate danger of abuse, the court is to order the immediate suspension and surrender of any license to carry firearms and FID card, as well as the surrender of all guns and ammunition “in the control, ownership and possession of the defendant.”
  
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  Notice of the suspension/surrender is to be attached to the restraining order.
  
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  Upon service, police take immediate possession; the police or licensing authority may maintain the items or may present the items to the State Police for storage; the owner is to immediately be issued a receipt detailing where the items will be stored; the owner may at any time request the police to transfer the items to a licensed dealer; the police must transfer the items within 10 days of notification; any items will be destroyed if not lawfully claimed within one year after an order has been vacated or has expired.
  
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  Violation of the suspension/surrender order is punishable by a fine of up to $5,000 or two and one half years in the house, or both.
  
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  Defendant may petition for review; a hearing must be held within ten business days, or two business days it the defendant’s employment requires carrying a firearm.
  
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  The court must continue a suspension and surrender order as part of any permanent restraining order, “if it determines that ... [returning the license/guns/ammunition]... presents a likelihood of abuse to the plaintiff” (Section Three c); a suspension and surrender order issued pursuant to this section shall continue so long as the restraining order to which it relates is in effect.
  
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  The federal felon-in-possession law (U.S.C. § 922(g)(9) ) disqualifies any person convicted of a misdemeanor crime of domestic violence from possessing a firearm shipped in interstate commerce. 18 U.S.C. § 922(g)(8) further bars any person subject to a judicial anti-harassment or anti-stalking order from possessing a firearm or ammunition.
  

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  The Court may enter any temporary order it deems necessary to protect a plaintiff from abuse.
  
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  A temporary order may be entered ex parte, where the plaintiff demonstrates a substantial likelihood of the danger of immediate abuse.
  
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  The procedure: at the first hearing, typically ex parte, a temporary order is issued which is valid for ten days. The plaintiff receives a copy of the order, a copy is held by the police and a copy is served on the defendant. At the second hearing, the defendant is afforded the opportunity to be heard on the question of continuing the order. The court can vacate, modify or continue the temporary orders for up to one year. If the defendant has been served with notice of the order but does not appear at the hearing, the temporary order may continue in effect without further court order.
  
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  A plaintiff “must make a case for relief by a preponderance of the evidence,” Frizado v. Frizado, 420 Mass. 592, 597 (1995), but ... “the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on.” Id. at 597-598. An adverse inference may be drawn from a defendant’s failure to testify, even when the refusal is based on the privilege against self-incrimination. The adverse inference alone is insufficient to meet the plaintiff’s burden of proof. The statute does not compel a defendant to testify or to present evidence. Because a 209A hearing is civil, the right of confrontation, guaranteed by Article 12 in criminal proceedings, does not apply. Id. at 596 n. 3.
  

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  Any Judge may issue an order to a victim who demonstrates a substantial likelihood of immediate danger of abuse; the order must be certified by the clerk-magistrate on the next court day.
  
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  Police are required to access the emergency judicial system when court is closed.
  
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  Temporary emergency orders can be issued by phone when the court is not in session; the form used by the law enforcement officer is to be delivered to the clerk-magistrate for certification on the next court day.
  
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  A plaintiff who receives an order without filing a complaint must file on the next court day -- otherwise the order expires at the end of the day.
  
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  If the plaintiff is unable to appear in court to file the complaint because of severe hardship due to a physical condition, a representative may appear and file the complaint, along with an affidavit explaining why the plaintiff can’t appear.
  
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  All notice and hearing requirements (Section Four) apply.
  

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  Any protective order issued by another jurisdiction (see definitions-- Section One) shall be given full faith and credit throughout the Commonwealth and enforced as if it were issued in the Commonwealth, for as long as the order is in effect in the issuing jurisdiction.
  
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  Out-of-state protection orders may be filed in Massachusetts courts by filing with the court a certified copy of the order; the plaintiff must swear under oath, in an affidavit, that the order is presently in effect as written; the order will be entered into the Commissioner of Probation’s statewide domestic violence record keeping system. Such filing and entry on the system is not, however, a prerequisite for enforcement.
  
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  Police may presume the validity of a copy of a protection order issued by another jurisdiction which has been provided by any source, including the statewide record-keeping system, provided the person protected by the order tells the officer that the order remains in effect.
  

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  If an officer has reason to believe that a family or household member has been abused or is in danger of being abused, he or she must use all reasonable means to prevent further abuse.
  

1) Remaining on the scene if a party would be in danger without the officer’s presence.

2) Assisting the victim in getting medical treatment, including driving her to the E.R.

3) Assisting the victim in finding shelter or refuge.

4) Giving the victim a statement of victims’ rights, and reading it to her.

5) If necessary, activating the Emergency Judicial System.

6) Informing the victim that the abuser will be eligible for bail and may be released.

7) Arresting any person an officer witnesses or has probable cause to believe has violated a vacate, refrain from abuse, and/or no contact provision issued pursuant to:

-- ch. 208 ss 18, 34B or 34C,

-- ch. 209 ss 32,

-- ch. 209A ss 3, 4 or 5,

-- ch. 209C, ss 15 or 20,

-- any similar protection order issued by another jurisdiction.

-- a firearms surrender/suspension order under ch. 209A, ss. 3B (firearms suspension/surrender), or 3C (continuation or modification

of firearms suspension/surrender).

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  If no orders are in effect, arrest is authorized and is the preferred response, but is not mandated, whenever an officer witnesses or has probable cause to believe that a person:
  

b) has committed a misdemeanor involving abuse

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  Violation of a custody order issued by the Probate and Family Court under ch. 208, § 34C is a criminal offense, but not an arrestable offense. (However, taking a child in violation of a lawful custody order may also warrant a charge of kidnapping under Mass. Gen. Laws ch. 265, § 26A.)
  
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  The safety of the victim and any involved children shall be paramount in any decision to arrest.
  
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  Any officer arresting both parties must submit a detailed report, in addition to an incident report, stating the grounds for a dual arrest.
  
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  Officers are forbidden from threatening to arrest all parties as a means of discouraging requests for law enforcement intervention.
  
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  The judge (or the person authorized to take bails) must notify a victim of an abuser’s imminent release on bail.
  
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  If the victim requests it, the judge must issue a no-contact order as a condition of bail.
  
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  Police are exempt from civil liability for personal injury or injury to property resulting from an arrest made with probable cause under ch. 209A “when such officer acted reasonably and in good faith and in compliance with this chapter and the statewide policy as established by the Secretary of Public Safety.”
  
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  If the defendant agrees to leave the residence but packs his belongings in another room, police may keep the defendant in view by following him through the residence. Commonwealth v. Rexach, 20 Mass. App. Ct. 919, 919-920 (1985).
  
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  Issues of tenancy, immigration status, custody and visitation, and marital status must not affect and are not relevant to police enforcement obligations.
  

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  Records Search: A judge considering a 209A complaint is required to cause a search of Probation’s statewide domestic violence record keeping system, and determine whether the defendant has a civil or criminal domestic violence record. If a warrant exists, appropriate officials must be notified and any information regarding a defendant’s most recent whereabouts must be forwarded.
  

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  Service: The Court Clerk must transmit two certified copies of all orders and one copy of the complaint and summons to police. The police must serve on the defendant one copy of all orders, the copy of the complaint and summons, and notice of any suspension or surrender order for firearms. Service is allowed on Sundays. Each order must contain the statement: VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE. The Court must notify police in writing when any order is vacated.
  

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  To convict a defendant of violating a restraining order, the Commonwealth must prove beyond a reasonable doubt that he had actual or constructive knowledge of the order and its terms and conditions. Commonwealth v. Collier, 427 Mass. 385, 388 (1998). “The Commonwealth can meet that burden with evidence of proof of service of the order by means reasonably calculated to reach the defendant.” Commonwealth v. Crimmins, 46 Mass. App. Ct. 489, 491 (1999). The failure to serve a defendant personally with a copy of the order “is not fatal where the Commonwealth can prove beyond a reasonable doubt that the defendant had actual knowledge of the terms of the order.” Commonwealth v. Delaney, 425 Mass. 587, 592 (1997). Proof of defendant’s knowledge may be established by the victim’s testimony that she told him of the order. Commonwealth v. Mendonca, 50 Mass. App. Ct. 684 (2001).
  

While the Commonwealth is not required to show that the defendant intended to abuse the victim, or even that the defendant intended to violate the order, “there must be proof that the defendant at least intended the act that resulted in the violation.” Commonwealth v. Collier, 427 Mass. 385, 388, 389 (1998).

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  Jurisdiction: The Superior, District, and B.M.C. Courts have jurisdiction over criminal actions under C. 209A. A Complaint may be brought in the territorial jurisdiction where the violation is alleged to have occurred or in the jurisdiction where the original ch. 209A order issues. Mass Gen. Laws ch. 277, § 62A.
  

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  Penalty Options for Violation of a 209A order (or a protection order issued by another jurisdiction):
  

If the defendant has a substance abuse problem, “the court may order appropriate treatment for such problem” in addition to, but not in lieu of, a batterers’ treatment program. The defendant is responsible for payment “to the extent possible.”

The Court may order the defendant to pay the victim “for all damages, including, but not limited to, cost for shelter or emergency housing, loss of earnings or support, out-of-pocket losses for injuries sustained or property damaged, medical expenses, moving expenses, cost for obtaining an unlisted telephone number, and reasonable attorney’s fees.”

If the Court finds that a violation of an order is in retaliation for the plaintiff reporting the defendant to the Dept. of Revenue (for failure to pay support or for determining paternity): the penalty is a fine of not less than $1,000 and sixty days in the House, and the sentence cannot be suspended or reduced.

The courts may also enforce orders by means of civil contempt sanctions.

A punishment is civil if it is remedial rather than punitive. If a judge imposes non-punitive civil sanctions for violation of a 209A order, there is no double jeopardy bar to the prosecution of the defendant for the underlying criminal conduct. Mahoney v. Commonwealth, 415 Mass. 278, 283, 287 (1993). A judge may proceed in summary fashion, so long as the defendant is given notice, a right to counsel , and the opportunity to be heard, because the normal discovery procedures in a civil contempt proceeding are inconsistent with ch. 209A’s clear intent that there be speedy intervention by the courts in domestic disputes. Id., at 287.

SECTION EIGHT: CONFIDENTIALITY OF RECORDS

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  Upon the victim’s request, the court is required to impound her address and ensure it is kept confidential from the defendant and the defendant’s attorney.
  

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  If either party is a minor, records of a case brought under ch. 209A are to be withheld from the public (but the minor’s parents, guardian, and attorney and the plaintiff and plaintiff’s attorney will have access).
  

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  Complaint forms must be uniform among the courts, and must be written in language comprehensible to pro se plaintiffs.
  
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  In 1995, the Complaint for Protection from Abuse Form was redesigned.
  
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  The procedure for completing the forms for a case involves these steps:
  

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  Unless indigent, a defendant who has been referred to a certified batterers’ program is required to pay a three hundred and fifty dollar assessment to the General Fund, in addition to the cost of the program.