Okay, first of all, let me be very clear. Scott Baio did not stalk anyone — period. I honestly only said that to get your attention. Second, if someone is stalking you or if you otherwise feel unsafe in any way, shape, or form, always call the police first. They can assist you more promptly than an attorney with a keyboard ever can. They are cheaper, too!
This being said, sometimes the police won’t or can’t do anything. Sometimes the police pass the report you made on to the State’s Attorney and they decide not to press charges against the person. And, sometimes you just don’t feel like you need the police but feel like something needs to be done to make another person stop their undesirable behavior towards you.
What can you do? Where can you turn? You need to first determine whether or not the unwanted contact you are receiving is actionable. To do this, call an attorney.
The attorney you hire will be or should be looking into whether the behavior you are experiencing constitutes “disorderly conduct” or “domestic violence.” Each of these terms carries with it a different standard and potential relief. Because the purpose of this blog is to discuss disorderly conduct restraining orders, I will save the details of a domestic violence protection order until next time.
In North Dakota, “disorderly conduct” has been defined as “intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.” As such, if your attorney thinks he or she can prove one or more of these things, you may be entitled to a restraining order.
Before you go and say: “Oh that is easy, I will just go get one of these lickity-split,” you should know that these orders are not quite as easy to obtain as the statute makes it sound. I would wager that everyone reading this article right now can think of someone who has done something to them that was “unwanted” and that, when they think hard enough about it, could justify them saying it also affected their sense of “security.”
Well, there are certain parts of the statute and certain things that have been stated by the North Dakota Supreme Court that keep these orders from being handed out so casually.
As can be seen from the plain language of the statute, one seeking a restraining order must show the adverse party “intended” to adversely affect their safety, security, or privacy. As many criminal law attorneys will tell you, “intent” is not the easiest thing to prove, especially when there is no tangible evidence to support the person’s claims e.g., a voice recording, a video, or a text. I have yet to have a client say they were wearing a GoPro and had the record button on when the unwanted contact occurred; however, it has become more common to see people with emails or text messages that help support their claims.
It is important for people to know that the probability of their success in getting a restraining order is partially hinged upon whether or not the judge believes them. While it is easier for a judge to believe someone if they have tangible evidence to support their claim, sometimes that just isn’t an option. That’s right, you may have had some horrendous things done to you, but if the Judge does not believe you, you will not be walking out of Court with a restraining order in hand. Just know that having some sort of “proof” to support your claim will increase the chances you are successful in obtaining an order.
In addition to needing to show intent, you need to show that a reasonable person would believe their safety, security or privacy was adversely affected. In fact, the North Dakota Supreme Court has stated: “subjective fear is insufficient to grant a disorderly conduct restraining order.” Cusey v. Nagel, 2005 ND 84. Therefore, even if you were truly scared for your safety in a particular situation, a court is not going to grant you a restraining order if it does not feel your fear was justified.
Along with this same vein, the North Dakota Supreme Court cautioned, “it is not enough under the statute that the petitioner for a restraining order wants the other person out of the petitioner’s life.” Williams v. Spilovoy, 536 N.W.2d 383. I see lots of cases in which the party is simply sick of dealing with someone else and would rather cut off all contact with that person. While this may be a good idea for both parties, it does not mean that they get to hang the title of “disorderly conduct” on the accused person’s head.
Part of why it is difficult to obtain a restraining order is that North Dakota recognizes the “significant restraint” placed on the accused person’s liberty and the “stigma” resulting from a disorderly conduct restraining order. Gullickson v. Klein, 2004 ND 76. A restraining order can prevent certain types of employment. It may also affect a person’s right to bear arms. Above and beyond all of this, is that in smaller communities such as Fargo, North Dakota, one can be given a lifelong label as a “wife-beater” if the restraining order goes on their record.
If you are thinking you would like a restraining order against someone in North Dakota or Minnesota, or if you are in need of someone to help defend you against a restraining order, it is a good idea to consult an attorney to help you navigate these and other issues involved with restraining orders.
At Severson, Wogsland & Liebl, we have attorneys who handle restraining orders. If you are interested in speaking to us please call 701-297-2890.
The material provided to you within this blog has been prepared for informational purposes only and is not intended to provide, and should not be relied on as, advice as to your particular restraining order issue.