Violation of a Restraining Order

Several kinds of restraining orders exist. Violating some will lead to civil liability, while violating others can result in a criminal conviction.

By , Contributing Author

Courts issue restraining orders in a variety of scenarios. A restraining order may be designed to bring about the end of a public nuisance, or a judge might issue one in an effort to control the conduct of the parties to a civil lawsuit. A judge may also issue a restraining order to protect a domestic violence victim from further acts of violence.

The names given restraining orders can vary from one state to another. For example, some states refer to restraining orders issued in the context of domestic violence as protective orders or orders of protection, while restraining orders issued in civil disputes are referred to as injunctions in some jurisdictions. (Courts often grant injunctions to prevent harm that cannot later be undone, such as tearing down a building.)

What Are the Penalties for Violating a Restraining Order?

What happens when a person violates a restraining order? Depending on the type of order violated, and sometimes depending on the way in which it is violated, the person may face civil or criminal penalties or both. We'll discuss the most common penalties below.

Contempt of Court, Fines, and Incarceration

A violation of some types of restraining orders can result in a charge of contempt of court and the imposition of civil penalties such as civil fines. In Colorado, for instance, a violation of an injunction that targets a public nuisance, such as a factory polluting a town's air, can result in a finding of contempt of court and imposition of a fine of $200 to $2,000 for each day that the violation continues or recurs. In addition to the contempt fine, the court may impose an additional fine of up to $500 per day. (Colo. Rev. Stat. § 16-13-312.)

Similarly, Washington state provides remedial sanctions and civil penalties for people or businesses found in contempt of injunctions issued under laws that regulate certain businesses and professions. Remedial sanctions—designed to force someone to comply with a court order—are levied when the possibility still exists for the person or business to comply with the injunction. Washington law authorizes a court to impose a forfeiture of up to $2,000 per day that a person or business is in contempt.

A Washington court may also incarcerate an individual as a remedial sanction if the person:

  • fails to obey a lawful judgment, decree, order, or process of the court
  • refuses to appear, take the oath to testify truthfully, or answer a question (unless the person has a legal right not to answer a particular question), or
  • refuses to produce a document, record, or object without a legal right to do so.

The person remains in jail only as long as the contempt continues. That is, once the person obeys the judgment, provides testimony, or produces the requested item, the person is released from jail. The court may impose other sanctions if it determines that forfeiture and imprisonment would be ineffective in ending the contempt.

In addition to remedial sanctions, a Washington court may require the person or business in contempt to pay a civil penalty of up to $25,000. (Wash. Rev. Code §§ 7.21.010, 7.21.030, 18.235.160.)

Criminal Charges

While a violation of a restraining order can result in a court finding of contempt and the imposition of civil penalties, a violation of an order such as one that targets domestic violence or stalking can result in arrest and prosecution for a criminal offense. State codes typically contain statutes that address arrest and bail procedures for people suspected of violating such orders. These criminal penalties apply even if the order was awarded in civil court.

Warrantless arrest. In Tennessee, for example, a person who knowingly violates a domestic violence order of protection may be arrested and criminally charged for the violation. Tennessee law authorizes a law enforcement officer to arrest a person without a warrant if the officer reasonably believes that the person violated a protective order.

Minimum jail hold. Additionally, if it appears that the arrested person poses a danger to either the victim or the public or might not return to court, the magistrate won't immediately release that person on bail. Instead, the arrestee must wait 12 hours from the time of arrest unless the magistrate determines that sufficient time has passed for the victim to be protected. In some states, this minimum jail hold might be 48 or 72 hours.

Bail conditions; notifying victim. In setting bail, the magistrate may impose conditions such as requiring the suspect to wear a GPS ankle monitor. Law enforcement must notify the victim that the accused has been arrested but may be allowed to post bond and be released from jail.

Criminal conviction. Violation of an order of protection is a Class A misdemeanor in Tennessee. Class A misdemeanors carry a maximum of 11 months and 29 days in jail and a fine of $2,500, although a jail sentence is not mandatory. If the act that constitutes the violation of the order is itself a crime, the suspect may be charged with that offense in addition to being charged with violating the protective order. For example, if the order prohibits the person from having any physical contact with the victim, but the person subsequently slaps the victim, the person may be charged with both the crime of violating the protective order and the crime of assault. (Tenn. Stat. §§ 36-3-611, 39-13-113, 40-11-150, 40-35-111.) Other states carry similar penalties—a first violation typically carries misdemeanor penalties and repeat offenses or offenses involving a weapon might carry felony penalties.

Firearms and Federal Law

Restraining orders typically contain provisions forbidding the restrained person from possessing firearms. A violation of a firearm restriction may subject that person to not only state charges for violating the order but also federal charges. Federal law forbids firearm possession by anyone who is under a court order that prohibits the person from stalking, harassing, or threatening an intimate partner (or the child thereof) or acting in a way that places the partner (or the partner's child) in reasonable fear of being harmed.

Although a person who violates a restraining order by possessing a firearm might only face a misdemeanor state charge, federal law carries the possibility of more severe punishment. A person who violates the federal law prohibiting a person under a restraining order from possessing a firearm faces up to ten years in prison and a fine. (18 U.S.C. §§ 922, 924.)

Consult an Attorney

Regardless of the type of order involved, you should consult an attorney if you are accused of violating a restraining order. Whether you are facing a charge of contempt and a fine or are charged with a crime for violating a restraining order, an experienced attorney will work to produce the most favorable outcome. An attorney should also protect your rights and provide invaluable guidance until your matter is resolved.

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