Harassment Prevention Orders (“HPO”) are similar to Restraining Orders (“RO”) in the sense that both orders require an offending individual to stay away and not contact the complaining victim. Generally both orders are issued for one year at a time, and then require that the complaining victim return to court and request that the order be extended for an additional year, if necessary.
In the recent case of Gassman v. Reason, Mass. App. Ct. No. 15‑P‑409 (August 11, 2016), the Appeals Court was presented with the issue of whether an HPO that had been continued for an additional year was wrongly extended? What makes this case particularly interesting is the fact that the extended order had expired by the time it reached the Appeals Court, which means that they were debating an order that was no longer in effect.
This case involved two neighbors in an apartment building, one living above the other. The neighbor who lived on the higher floor was an avid piano player, whose “frequent playing was a source of considerable irritation” for the neighbor who lived below. In support of the original HPO, the complaining victim said the neighbor below had “[banged] on my door demanding I stop playing,” “bothering me over and over,” and “called the police and complained that I had pushed her.”
In order to obtain an HPO, the offending individual must be found to have committed “[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property. See Seney v. Morhy, 467 Mass. 58, 60 (2014). And in order to obtain an extension, the complaining victim has to make the same showing as required in the initial hearing. See Smith v. Jones, 75 Mass. App. Ct. 540 (2009).
After reviewing the record, the Appeals Court determined that the evidence failed to show that offending individual intended to cause any harm, nor made any threat or fighting words. Accordingly, the Court held that the HPO had been wrongly extended, and ordered it vacated.
But what about the fact that it the HPO had expired by the time the Appeals Court had heard the case? “A wrongfully issued HPO poses…concerns for a defendant about collateral consequences.” Lawrence v. Gauthier, 82 Mass. App. Ct. 904, 904-905 (2012). When an order is not extended or expires, a judge must also order that law enforcement agencies destroy all copies of it. In this case, the lower court had failed to issue a judicial termination order. If it had, the case would have been moot for the Appeals Court, and would not have been heard.
And if you’re wondering about whether someone can have their record purged of any HPO or RO issued against them, case law says that “in the rare and limited circumstance that a judge [finds] through clear and convincing evidence that the order was obtained through fraud,” a defendant may have the order expunged from his record. See Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 737 (2006).
The attorneys at Hutchins Law, P.C. are experienced and knowledgeable in the area of restraining orders. Contact them today for help making a wise legal choice that is right for you.