both me and my husband have an order against this person, and every time he violates it we call the police.
Family Law Attorney
There's no way to know WHY the police don't take action, short of asking them. Note that the U.S. Supreme Court has ruled that private citizens cannot compel the police to initiate criminal prosecutions (see Inmates of Attica Correctional Facility v Rockefeller, 477 F.2d 375 (1973); also Linda R. S. v. Richard D., 410 U.S. 614 (1973)), or sue for damages when the police fail to protect them (Castle Rock v. Gonzales, 545 U.S. 748 (2005)).
You should consult with an attorney licensed to practice in your state, to see whether any civil cause of action might be available for you.
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3 lawyers agree
Employment / Labor Attorney
1) You may not be reporting it properly;
2) It may not be a violation.
If the abuser violates the order, call the police immediately. Show the Order to the police and explain how it was violated ( a punch, slap, threat; entering your house or apartment or refusing to vacate; or, any contact with you at home or your workplace, either in person, by telephone or mail). The police must arrest the abuser if they believe or can see that the terms of the Order were violated. '
If you do not call the police, you may be able to file an application for a criminal complaint on your own at the Clerk’s Office in the District Court. A Victim/Witness Advocate can assist you with that process.
The police are obliged to take a written report if you insist. You can also talk to the clerk of the court where it was issued for assistance enforcing it.
There's a bit of common sense involved. "We saw him on the other side of Home Depot when we came in and he didn't know we were there, but he violated because he came within 200 feet of us" is quite different from "we get texts from him nightly even though he is forbidden from doing so."
Do you want accurate, personalized, legal advice that you can rely on? You will have to hire an attorney, not ask on Avvo. I am not your attorney and am not creating an attorney-client relationship by this post. I am therefore giving only general advice. This advice may not apply to you or your situation; may not take account of all possibilities, and may not match the advice I would give to a client. DO NOT rely on this advice or any other advice on Avvo to make your legal decisions. If you want an answer to a legal question you should retain an attorney who is licensed in your state.
Employment / Labor Attorney
It would take more knowledge of the facts to determine why the police have responded in that way. Under Massachusetts General Laws Chapter 258E, Section 8, the police are supposed to arrest anyone the officer witnessed or has has probable cause to believe violated a harassment prevention or domestic violence restraining order, and similar provisions exist for domestic violence under Chapter 209A:
That said, here are some possibilities that spring to mind:
The police don't believe they have probable cause that a violation of a restraining order has occurred. This might be because someone failed to understand that a restraining order was in place; they might disbelieve the reports from you just based on your witness account, or feel they don't have probable cause just based on the reports; or they might wholly credit your version of events, but still feel that the other person's actions don't qualify as a violation of the order.
The police might also have some less proper reason for not following up, such as the subject of the restraining order having some sort of relationship with members of the department. I'd say this is much less likely.
Have you made it clear when you call the police that there's a restraining order in place? I would insist that when you call, the police write up an incident report. Most likely the times that you've called before, even if the police did not respond to your location, they did make a log of the telephone reports. I would start by calling again on any recent violations and ask that a police officer take down a statement and write a report, and follow up with the alleged violator. I also would make a request of the Lynn police records department for all reports and logs related to the alleged violations (you will have to figure out when they began, so that you can request records going back far enough).
If all else fails, and the violations are criminal (either because they are violations of a Chapter 209A restraining order, or because they constitute separate crimes such as criminal stalking or criminal harassment) you can submit an Application for Complaint at the Lynn District Court, bypassing the police entirely. Another avenue is to bring a complaint for contempt of the judge's order. If you pursue either of these options, I'd get together as much corroborating evidence as possible to prove your case, and consider hiring an attorney as well.
Divorce / Separation Lawyer
Unfortunately you have not provided enough information to answer your question properly. Is this a 209A restraining order or a civil restraining order. Also, not sure what you think constitutes a violation and whether police agree. Best to consult with an attorney. Good luck.
This answer does not consitute legal advice and does not create an attorney-client relationship. The answer is based only on the facts presented. This answer is basd only on Massachusetts law.
2 lawyers agree
DUI / DWI Attorney
It doesn't make sense that the police won't arrest for a 209A violation. G.L. c. 209A Sec. 6(7) requires the police to "(7) arrest any person a law officer witnesses or has probable cause to believe has violated a temporary or permanent vacate, restraining, or no-contact order or judgment issued pursuant to section eighteen, thirty-four B or thirty-four C of chapter two hundred and eight, section thirty-two of chapter two hundred and nine, section three, three B, three C, four or five of this chapter, or sections fifteen or twenty of chapter two hundred and nine C or similar protection order issued by another jurisdiction."
This is not intended as legal advice and it should not be considered or relied upon as such.
1 lawyer agrees