Articles Posted in Civil Protection Order

In a Washington felony violation of a no-contact order case, the prosecution must prove the existence of the no-contact order and the defendant’s knowledge of it.  For a variety of reasons, the defense may not want the jury to see the no-contact order.  A recent issue in Washington has been whether a defendant can keep a no-contact order out of evidence by stipulating to its existence and his or her knowledge of it.  The Washington Supreme Court recently addressed this issue.

A court entered a domestic violence no-contact order prohibiting the defendant from contacting his girlfriend after he was convicted of a domestic violence offense.  Finding the defendant was a “credible threat to [her] physical safety,” the court ordered the defendant not to come within 1000 feet of her residence.

Nevertheless, the couple lived together.  According to the Washington Supreme Court’s opinion, a neighbor witnessed them having a verbal altercation outside their home.  The girlfriend told the neighbor the defendant had hit her and asked them to call 911.  The girlfriend told law enforcement the defendant struck her head and face repeatedly and law enforcement observed bruising and other injuries.

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In certain circumstances, Washington courts ordering domestic violence protection orders must also order the restrained person to surrender his or her firearms, other dangerous weapons, and concealed pistol licenses (CPL).  RCW 9.41.800. There is a standard order that courts may use.  The standard order requires the restrained person to immediately surrender the weapons and CPL, get a receipt for the items surrendered, complete a proof of surrender form, and file all of the documents within five days.

In one case, a wife questioned whether the husband had truly surrendered all of his firearms after being ordered to do so.  After separating from her husband and moving to Washington, the wife sought a domestic violence protection order, alleging, in part, he had threatened to shoot her.  The commissioner issued the order, but found a lack of personal jurisdiction over the husband prevented her from ordering a weapons surrender.

The wife moved for revision of the order.  At the hearing, the husband said no firearms were in his possession because his relatives had them.  He requested a continuance.  The court granted the continuance, but entered a temporary order requiring him to turn over his weapons and any CPL.  The husband subsequently filed a proof of surrender form with a receipt from the sheriff’s office showing he had surrendered three guns.

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It is common for a person with a Washington temporary protection order to seek renewal before the order expires.  If a victim petitions for renewal, the court must order a hearing.  The burden is on the respondent to show by a preponderance of the evidence that he or she will not commit acts of domestic violence against the petitioner or the petitioner’s family or household members if the order ends.  If the respondent fails to meet this burden, then the court will grant the renewal.

A Washington appeals court recently reviewed the renewal of a protection order against the petitioner’s brother.  The sister sought a temporary protection order against her estranged brother in 2017.  She alleged he made threats against her through her mother and other brother.  She also alleged he was emotionally unstable and had firearms.  The court granted a protection order for one year.  During the year, they had some indirect contact through other family members.

The sister petitioned for renewal shortly before the order expired.  She alleged her brother threatened to come to her home after the order expired.  Both parties testified at the hearing.  The evidence included voice mail transcripts and a letter from another brother.

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In any criminal case, the prosecution must prove all elements of the crime, including the mens rea, or intent.  Depending on the facts of the case and the crime charged, the intent element can sometimes be difficult for the prosecution to prove.  This can be especially true in Washington domestic violence cases, where witnesses may be reluctant to testify.

A defendant recently challenged his convictions of assault in the second degree and misdemeanor violation of a no-contact order.  He appealed, arguing there was insufficient evidence to support the convictions.  He argued alternatively that there was insufficient evidence he met the “reckless” element of the assault charge.  He further argued the information failed to include an essential element of the misdemeanor violation charge.

In April of 2016, a judge granted a domestic violence no-contact order to the woman the defendant had lived with.

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In some instances involving alleged domestic violence, courts may issue permanent protection orders.  Even if there are no intentions to contact the protected party, a respondent may find an ongoing protection order to have other consequences and seek to terminate it.  The court is to consider nine factors to determine if a substantial change in circumstances supports termination of the protection order.  Only factors that address whether the respondent is likely to commit domestic violence acts against the other party in the future are to be considered.  The respondent has the burden of showing the substantial change in circumstances by a preponderance of the evidence.

A man recently sought termination of a permanent protection order.  According to the appeals court opinion, the man’s wife filed for legal separation and a one-year protection order after he assaulted her in 1996.  The divorce decree prohibited each party from going to each other’s homes or workplaces.

In 2002, the ex-wife sought a protection order against her ex-husband on behalf of herself and their children.  She alleged that he had behaved aggressively toward their son, but he denied any abuse.  The court entered an ex parte domestic violence order of protection.

Washington civil protection orders are available to protect individuals from contact by someone who has harassed, threatened, or assaulted them.  Washington has several types of protection orders that may apply in various situations, including an anti-harassment protection order.  An anti-harassment protection order may be issued against a person who has harassed another.  Unlike a domestic violence protection order, it does not require evidence of a particular type of relationship between the parties.

A Washington appeals court recently considered an appeal of an anti-harassment order.  A woman had petitioned for an anti-harassment order against her ex-spouse’s new romantic partner.  The petitioner alleged the respondent harassed and threatened her through calls, texts, and social media.  The respondent was a resident of New Mexico.  The court issued the temporary anti-harassment protection order and scheduled a hearing.  Both women testified at the hearing.  The court ultimately issued a three-year anti-harassment order prohibiting the respondent from direct or indirect contact with the petitioner.  The respondent appealed.

The respondent argued the trial court did not have personal jurisdiction over her because she is not a resident of the state and has insufficient contact with the state.  She also argued that there was not any evidence that any of the contact “originated in the state of Washington.” The appeals court found, however, that the statute, RCW 10.14.155, allows jurisdiction over non-residents of Washington in some situations when the conduct occurred outside the state.  The statute provides for jurisdiction where the respondent’s conduct represents an “ongoing pattern of harassment that has an adverse effect on the petitioner,” if the petitioner is a Washington resident.  The petitioner in this case was a Washington resident.

Washington criminal defendants are entitled to a fair trial.  In some cases, prosecutors may seek to introduce irrelevant and inflammatory evidence that tends to prejudice the jury.  Domestic violence and civil protection order violation cases can be particularly vulnerable to prejudice.  In some cases, a prosecutor’s misconduct may lead to an unfair trial for the defendant.  A defendant in a Washington domestic violence case recently challenged his conviction, alleging prosecutorial misconduct.

The defendant was arrested following a 911 call.  According to the appeals court’s opinion, the caller described a man, later identified as the defendant, hitting a woman, pulling her hair, and choking her.  The defendant gave the responding officers his brother’s name and information. Officers found the defendant’s identification during a search at the jail.  They also learned there was a no-contact order prohibiting him from contact with the alleged victim.

The defendant was ultimately charged with domestic violence felony violation of a no-contact order.  He was also charged with first degree criminal impersonation and resisting arrest. Additionally, he was charged with escape from community custody, but this charge was tried separately.  The defendant was found guilty of all charges.  He appealed.

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When a Washington civil protection order is issued, the parties generally know who the protected party is.  In some cases, however, there may be errors in the identification of the protected party in the order.  A defendant recently challenged his conviction for violation of a domestic violence court order because the domestic violence no-contact order identified a race for the protected party that did not match his wife’s race.

In 2013, the court issued a domestic violence no-contact order that prohibited the defendant from contacting a named individual.  The order included the protected party’s birthdate. It included a finding of fact that the protected party was the defendant’s “[i]ntimate partner.” The name and birthdate of the protected party matched that of the defendant’s wife. The order also stated the protected party was a black female.  It expired in July 2018.

According to the appeals court’s opinion, the defendant’s wife called 911 in February 2017 and reported that the defendant had assaulted her.  The defendant told the responding officer that his wife had assaulted him at her home.  He acknowledged there was a no-contact order that prohibited him from contacting his wife, but stated he thought it had expired.

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In many Washington domestic violence cases, a person faces criminal charges as well as a petition for a civil protection order.  When there are “parallel” civil and criminal proceedings, there would be a risk that the criminal defendant may be compelled to incriminate himself or herself in the civil proceedings if not for the protections of the Fifth Amendment.  In addition to protecting the defendant during the criminal trial, the Fifth Amendment also allows a person to refuse to answer official questions in other proceedings if the answer might tend to incriminate the person in future criminal proceedings.  Washington courts do not automatically delay the civil case until the criminal case is over.  Instead, they apply a balancing test based on several factors identified in King v. Olympic Pipeline Company, LLC to determine if the civil case should be stayed.

King was a wrongful death case following a pipeline rupture that resulted in a fire that killed three people.  A criminal investigation focused partly on some of the defendants.  Those defendants sought a limited partial stay of discovery in the civil case to preserve their Fifth Amendment right and the right to fully defend themselves in the civil case.  The trial court denied their motion and the appeals court reviewed.

The Washington Appeals Court adopted factors considered by federal courts in parallel proceedings, noting that it was not necessarily an exhaustive list.  The court must balance the factors in light of the circumstances and competing interests of the case.

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Violation of a Washington no-contact order is generally a gross misdemeanor.  In some circumstances, however, it can be elevated to a class C felony if the violation includes an assault.  Defense of property can be an affirmative defense to assault.  The Washington Supreme Court has recently reviewed a case in which the defendant sought a jury instruction on defense of property as an affirmative defense to felony violation of a no-contact order.

According to the Court’s opinion, the defendant checked his car after thinking he saw someone near it.  His phone and other items were missing.  The defendant saw his former girlfriend walking down the street.  There was a no-contact order prohibiting the defendant from coming near or having any contact with her at the time.  He followed her and tried to take her purse to retrieve his phone. A witness testified to seeing a man hit a woman, then lift her off the ground and slam her back down.  According to the appeal court’s opinion, the defendant denied hitting her.

The defendant was charged with felony violation of a no-contact order predicated on assault. He requested a jury instruction on defense of property.  The judge, however, found he “was acting offensively, not defensively…” and was not entitled to the instruction.  The jury convicted the defendant, and he appealed, arguing he had been improperly denied the jury instruction.  The appeals court affirmed, finding the defendant was not entitled to the defense because he used force to try to recover the property, not prevent its theft.

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