Restraining orders scrutinized in wake of Supreme Court ruling

A new U.S. Supreme Court ruling won't change how local officers enforce restraining orders, but it concerns at least one judge.

Based on a Colorado case, the June 27 ruling says that police can't be sued for failing to enforce a restraining order. In the Colorado case, a woman made repeated phone calls and paid a visit to police within a few hours, asking them to find her estranged husband against whom she had a restraining order. She thought he had taken their three daughters. The man eventually turned up at the police department with a shotgun he had just purchased. Police shot and killed him, and the bodies of his murdered daughters were found inside his truck.

The Supreme Court ruled 7-2 that the woman was not entitled to have officers enforce the order.

The ruling is "pretty darn dangerous," said Flathead County Justice of the Peace David Ortley.

"I think it will prompt a revamping of our statute," he said.

A restraining order is a generic term used by judges and police to describe temporary and permanent orders of restraint and orders of protection, Ortley said. The Colorado case used the term restraining order.

In Montana, restraining orders typically are given in divorce cases, outlining terms of custody and contact between the divorcing couple. An order of protection is issued to a victim of domestic violence, stalking or other crimes, Ortley said.

Nothing in Montana law makes arrest mandatory through such an order, he said. Arrest is left to the discretion of each officer.

"We're going to continue to enforce restraining orders," said Kalispell Police Chief Frank Garner. "It is a responsibility issue and a matter of conscience."

Although not perfect, restraining orders are "an important tool in the prevention of violence," he said.

Typically, an order is granted by a judge as a way to separate a potential victim and a person thought to be capable of hurting him or her.

Justice court information given to people applying for orders of protection says the order is "issued to promote the safety and protection of the victims of family member or partner assault, victims of sexual assault, and the victims of other specific crimes. It also applies to persons who are suffering from substantial emotional distress or reasonable apprehension of bodily injury, as a result of being subjected to repeated harassment, intimidation or another form of stalking."

"They're so misunderstood," Ortley said about the orders.

Sheriff Jim Dupont said restraining orders have been handed out "like candy" during the past.

"We've discussed this time and time again at the Western States Sheriffs Association meetings," he said. "The original intent of restraining orders was fine. But we seem to get a lot of restraining orders that really don't fit under the definition of what they were designed for."

They're designed to give law-enforcement officers a legal basis to arrest people who show up at homes where a judge has decided they could pose dangers, for example.

"Sometimes, they give us the ability to arrest," Dupont said.

But that simple intent sometimes is diluted by people who think restraining orders entitle them to 24-hour private policing, Dupont said.

"They call and say, 'My soon-to-be ex called me. My soon-to-be ex drove by the house. My soon-to-be ex was in the mall when I was in the mall and didn't leave,'" Dupont said.

His department will continue to enforce restraining orders, he said.

"I don't believe the Supreme Court intended to say cops don't have an obligation to enforce" the orders, Dupont said.

On Wednesday, Ortley issued a permanent order of protection for a man who is having problems with his neighbor.

The neighbor, who is the former owner of the man's house, is "in and out of the house as if he has a right to be there," the man said.

More serious, though, are the threatening notes the neighbor allegedly leaves and signs "The Montana Militia" and the neighbor's raging appearance at the house with a .44-caliber Magnum handgun on his hip.

"He has threatened to kill my wife and children" and others, the man told Ortley.

Ortley previously had issued temporary restraining orders for both men, intended to keep them away from each other. After Wednesday's hearing, Ortley made the order permanent for the man who said he fears his neighbor's erratic behavior.

"Please be aware, it's nothing more than paper," Ortley warned the man. "Pay attention. Stay on your guard. … Continue to report violations."

Later, the man said he doesn't think the restraining order "is the end-all solution." It does give him some legal protection against criminal charges were the situation between the men to turn violent, he thinks.

Ortley said his court has strict guidelines for deciding whether a restraining order was warranted or not. Not as many are issued now as during the past, he said.

He said the orders are serious business.

Anyone who is the subject of a restraining order loses his or her right to possess firearms - a consequence that Ortley takes solemnly.

When his court issues an order, it is because someone is in danger, he said.

"There's very little we do that's more important."

That's why the Supreme Court ruling "has certainly caused me some concern," Ortley said.

He thinks the Legislature should amend Montana law to state that officers shall enforce terms of the orders issued by judges.

Reporter Chery Sabol may be reached at 758-4441 or by e-mail at csabol@dailyinterlake.com.