What is LawBrain?
It's a living legal community making laws accessible and interactive. Click Here to get Started »

Restraining Order

From lawbrain.com

A command of the court issued upon the filing of an application for an injunction, prohibiting the defendant from performing a threatened act until a hearing on the application can be held.

A restraining order is an official command issued by a court to refrain from certain activity. Restraining orders are sought by plaintiffs in a wide variety of instances for the same reason: the plaintiff wishes to prevent the defendant from doing something that he or she has threatened. Restraining orders are used in a variety of contexts, including employment disputes, copyright infringement, and cases of harassment, domestic abuse, and stalking. All restraining orders begin with an application to the court, which decides the merits of the request by using a traditional test. Limited in their duration and effect, restraining orders are distinguished from the more lasting form of court intervention called an injunction. Generally they are sought as a form of immediate relief while a plaintiff pursues a permanent injunction.

A court submits a request for a restraining order to one of several tests. These tests vary slightly across different jurisdictions, but generally they involve the analysis of four separate factors: (1) whether the moving party will suffer irreparable injury if the relief is not granted; (2) whether the moving party is likely to succeed on the merits of the case; (3) whether the opposing party will be harmed more than the moving party is helped; and (4) whether granting the relief is in the public interest.

Usually, restraining orders are not permanent. They exist because of the need for immediate relief: the plaintiff requires fast action from the court to prevent injury. Seeking a permanent injunction can take months or years because it involves a full hearing, but the process of obtaining a restraining order can take a matter of days or weeks. For even faster relief, moving parties can seek a temporary restraining order (TRO). These are often issued ex parte, meaning that only the moving party is present in court. The TRO usually lasts only until an injunctive hearing involving both parties can be held.

Harassment of an individual can result in a permanent restraining order. This command of the court is also called a protective order. All states permit individuals to seek a restraining order when they are subjected to harassment by another individual or organization, typically involving behavior such as repeated, intrusive, and unwanted acts. Application for such an order usually is made to the district court. If granted, it prohibits the party named from initiating any contact with the protected party. In the 1990s most states passed anti-stalking laws designed to protect women from criminal harassment by men. These laws generally require that a plaintiff first secure a restraining order before criminal charges can be filed.

Further Readings

American Law Institute–American Bar Association (ALI ABA). 1996. Obtaining a Preliminary Injunction and Temporary Restraining Order, by James J. Brosnahan. Course of study, August 14, 1996. SB24 ALI-ABA 247.

Peters, Donald M. 1995. "Temporary Restraining Orders and Preliminary Injunction." Arizona Attorney 31 (April).

Walsh, Keirsten L. 1996. "Safe and Sound at Last? Federalized Anti-Stalking Legislation in the United States and Canada." Dickinson Journal of International Law 14 (winter).



    Contributors

    Admin, FindLaw Sarah