The Problem with Civil Restraining Orders in California
It is easy to file wild accusations of domestic violence, even totally false ones. It is today's best "Gotcha". It is free. It is permanent and it is devastating to the person you don't like. It can block access to a professional license, result in job terminations and fatally handicap future job applications, not to mention ruining the person's reputation. Up to now, even though proved totally false, such accusations have remained a public record in the court house, open to all, and conveniently indexed alphabetically UNDER YOUR NAME.
Why Are False Accusations Allowed to Remain Public?
After decades of ignoring crimes against women, the U.S. finally got on board and passed loads of laws intended to help women defend against and prevent domestic violence. Some of these laws are an Over-swing of the pendulum. For example, it is now easy to go to Family Court and apply for an Emergency Protective Order (EPO) in California. State laws make this an easy process. What the Legislature did NOT do was anticipate that some people would see it as a golden opportunity to punish someone with whom they are angry, by filing totally false accusations. What else they did not do was provide some process to remove those false allegations from the public court records.
What Are the Consequences of False Accusations Remaining in an EPO Public Court Docket?
The ramifications of a permanent public court record of false accusations of domestic violence are extensive and terrible. A person can be fired, denied employment, denied credit, denied scholarships and school admissions, and denied child custody, among others. This last issue has become a big one. Some devious people are quite willing to set up a divorce by first making a false domestic violence accusation, knowing that it will prejudice a court against the alleged abuser in gaining child custody. And of course, if someone jilts his or her lover, what could be sweeter than trashing any future romance by saddling him or her with a permanent civil restraining order court record?
If I Am Tried and Acquitted of Domestic Violence, Won't the Restraining Order Be Expunged?
No. Getting acquitted of domestic violence or having the charges dismissed does not prove your innocence. Charges are dismissed and defendants acquitted for lots of reasons other than innocence. Even if you are acquitted and get a Petition for Factual Innocence (PFI) granted, up to now, you would only get the police arrest records and the criminal court files sealed and destroyed. The parallel Family Court (civil) Emergency Protective Order (EPO) court docket based on the same exact accusation has always remained a public record, with all its false allegations. No statute provided for sealing and destroying those false accusations.
That's Terribly Unfair!
You are absolutely right.
Can't Anything Be Done to Restore My Reputation? I Did NOTHING Wrong!
In California, something CAN be done. In early 2009 in San Francisco, California, A Petition for Factual Innocence (PFI) was granted for one of Mr. Dinday's clients on a domestic violence case where the person was arrested but the D.A. never filed charges. For what may be the first time however, the innocent arrestee then went back to court and asked the same court to then seal and destroy the parallel Family Court EPO file, including the restraining order and all the supporting documents and declarations.
The Court granted the petition and from the date of the order onward, that EPO docket in Family Court will be sealed until three years from the date of arrest and then totally destroyed, along with all its indexing. That case was not appealed, and there is no published opinion to guide future judges. However, because it has now been done once and the the Attorney General indicated a lack of interest in appealing the order, future judges will likely follow suit.
Who Is Eligible for this Relief?
Anyone who was arrested in connection with the false accusations, but never convicted can bring the Petition for Factual Innocence and request this relief. This includes persons arrested but never charged; those charged but the charges were then dismissed; and those charged but found not guilty at trial. Just getting the acquittal or dismissal alone is not enough. It is necessary to prove to the judge that under the facts known at the time of the court hearing on the PFI, "no reasonable person would think the arrestee guilty."
Where Do I Find This Wonderful Case?
You can't. The Court ordered all records of that arrest and the petitions themselves sealed and destroyed. Moreover, because the District Attorney did not appeal the order sealing the Family Court docket, there will be no published opinion as a precedent. Never the less, it is believed that now other courts will follow suit. There is certainly a crying need for it.
What Is the Down Side to Doing This?
Two, really. One: you have to pay a lawyer to do it. The PFI process is Wayyyy too complicated for any non-lawyer to do it. I mean it. Many judges and lawyers don't understand this statute. Even some published appellate cases get it wrong. The second down side is that if no arrest ever occurred, there is no remedy to be offered. But at least we now know it is possible to do for people who were victimized by both false arrest and falsely obtained restraining orders.
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