It’s no secret that restraining orders are often issued with little or no evidence of abuse. The SAVE Special Report, The Use and Abuse of Domestic Restraining Orders, documents numerous examples of such frivolous orders:

• Elaine Epstein, former president of the Massachusetts Bar Association, admitted, “Everyone knows that restraining orders and orders to vacate are granted to virtually all who apply…In many cases, allegations of abuse are now used for
tactical advantage.”

• In Connecticut, attorney Arnold Rutkin charged that many judges view temporary restraining orders as a “rubber-stamping exercise” and that subsequent hearings “are usually a sham.”
• In Missouri, a survey of judges and attorneys yielded many complaints of disregard for due process and noted that allegations of domestic violence were widely used as a “litigation strategy.”
• In Illinois, an article in the state legal journal described legal allegations of abuse as “part of the gamesmanship of divorce.”

Recent cases in Cleveland and elsewhere suggest restraining orders afford little or no protection to true victims of domestic violence. And now, a decision from Nebraska suggests the judiciary is becoming concerned about the lack of due process in such cases.

On July 30, 2019 the Nebraska Court of Appeals issued a decision (Abbie Britton et al v. Christopher Simmons. Filed July 30, 2019. No. A-19-108.) that reversed and dismissed an unlawful domestic abuse protection order.  In retrospect, it’s hard to believe this protection order was granted in the first place.

Biased training provided to our judges may have contributed to the defective trial judge decision.  Numerous complaints have been made, both nationally and in Nebraska, that protection order bench guides and other materials provided to our judges contain material misstatements of fact and law that, if relied upon by judges, would constitute reversible error. Today’s decision is an example of this problem.

Two years ago, a lawsuit against the Nebraska judicial branch forced it to disclose training materials used to train judges. Once disclosed, those materials showed judges were given false information that misrepresented applicable research and failed to disclose dozens of studies that contradicted the presenter’s personal political agenda.  Here are two stories about that case:

• In ruling that some judicial records are public, judges set precedent
• Biased training for judges still a problem

Below is the salient portion of the Court of Appeals opinion:

The protection from Domestic Abuse Act (the Act), Neb. Rev. Stat. § 42-901 et seq. (Reissue 2008 & Cum. Supp. 2010), allows any victim of domestic abuse to file a petition and affidavit for a protection order pursuant to § 42-924. “Abuse” is defined by § 42-903(1) as the occurrence of one or more of the following acts “between family or household members”:

(a) Attempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous instrument;

(b) Placing, by means of credible threat, another person in fear of bodily injury; . . . or

(c) Engaging in sexual contact or sexual penetration without consent as defined in section 23-318.

“[F]amily or household members” includes persons who have a child in common whether or not they have been married or have lived together at any time. Simms is the father of one of Britton’s children and Simms and Britton had cohabited. Simms and Britton are “family or household members” for purposes of the protection order application.

The definition of “abuse” also requires causing or attempting to cause bodily injury, or a threat putting another person “in fear of” bodily injury.

A “credible threat” means

a verbal or written threat, including a threat performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written or electronically communicated statements and conduct that is made by a person with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family.

§ 42-903(1)(b) (emphasis added).

Whether domestic abuse has occurred is the threshold issue in determining if an ex parte protection order should be affirmed. Absent abuse as defined by § 42-903 the ex parte order must be dismissed. Robert M. on behalf of Bella O. v. Danielle O., supra.

CREDIBLE THREAT

The plain meaning of “credible threat” is a declaration or expression of an intention to inflict harm or damage utilizing various or combined methods of communication made by someone with the ability to carry out the threat. Id. There is no evidence Simms ever made contact, verbal or otherwise, with anyone in Britton’s household. And, as a result, there is no evidence of any sort of “credible threat.” Since there is no “threat” toward Britton or any of her children, Britton cannot have reasonably believed they were at risk for bodily injury. Britton testified she is terrified of Simms’ cruising behavior but she does not allege any specific communication or overt acts which could be construed as “threats” sufficient to make her fearful.

Nor is repeatedly driving by Britton’s house a threat “implied by a pattern of conduct.” § 42-903(1)(b). While Britton alleges numerous instances of Simms driving by which might be construed as a “pattern of driving by,” the behavior does not appear to have threatened anyone since there was no communication to Britton or her children that they were at risk for some sort of harm. Additionally, each “drive by” was a single act. Simms did not drive by, get out of his car, engage in acts of physical violence, or make threats and then drive away. A pattern of conduct cannot be demonstrated by a single act. Rather a series of actions at Britton’s house or wherever she may be found is required. See Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019) (pattern of conduct cannot be demonstrated by single act; multiple instances of violent behavior against multiple victims in multiple locations in home sufficient to amount to pattern of conduct). Here, there is no evidence Simms ever got out of his car or approached anyone in the Britton household or communicated anything threatening to anyone.

NO EVIDENCE OF “ABUSE”

There is no evidence of any injury or threat of injury to anyone in Britton’s householdwhich could reasonably cause any family member to be fearful. There is no evidence of a credible threat by Simms to do bodily harm to Britton or her children. While the cruising behavior may surely be annoying, it does not rise to the level of “abuse.” Absent “abuse,” the protection order may not remain in effect. See Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d 841 (2018). See, also, Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (2014).

SUFFICIENCY OF EVIDENCE

At the show cause hearing Britton had the burden to prove by a preponderance of the evidence the truth of the facts supporting her request for a protection order, even though show cause hearings may be more informal than trials. Maria A. on behalf of Leslie G. v. Oscar G., supra. Once that burden is met, the burden shifts to Simms to show cause why the protection order should not remain in effect. See id.

The bill of exceptions in this case reflects a very informal proceeding. While protection order proceedings are summary in nature and the court is justified in excluding evidence if its probative value is outweighed by considerations of delay, there needs to be some evidence establishing the allegations made in the application which are then incorporated into the bill of exceptions. See Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010) (prima facie case may be established by form petition and affidavit but neither will be considered as evidence until offered and accepted at trial). The only sworn testimony during the show cause hearing was Britton’s preference for a domestic abuse order rather than a harassment order because a domestic abuse order could be renewed. The basis for the request was the cruising behavior. There was no testimony about any threat or bodily injury endured by Britton. The application, affidavits, and prior protection orders were never entered into evidence. Nor was any evidence related to any specific claims applicable to the children offered or received.

The record is without evidence of “abuse” by Simms against Britton because there is no evidence of any injuries or credible threats by Simms which could have put Britton or her children in fear or at risk for physical harm. There was insufficient evidence of “abuse” to warrant affirming the domestic abuse protection order following the show cause hearing on February 4, 2019, and as a consequence the order must be vacated.