Appeals Court Found No Credible Threat of Violence
The Oklahoma Court of Civil Appeals has set aside a protective order granted to a woman who said her former boyfriend threatened her in an Internet chat while she was overseas. In an unpublished decision, the appeals court said a Cleveland County court abused its discretion when it found the alleged threat was credible.
The decision is unusual because county courts often award protective orders based on contested testimony of one party in a contentious failed relationship. The decision cites as precedent a 2009 Oklahoma Supreme Court case that set aside a protective orders where “a trial court’s conclusions and judgment were clearly erroneous, against reason and evidence.”
In that case, Curry v. Streater, 2009 OK 5, the Oklahoma Supreme Court cited the potential for a “vindictive, angry ex-spouse” to seek a protective order for primarily strategic legal reasons. The court said protective orders can result in “unjustified, irreversible consequences,” including a social stigma and devastating results on a defendant’s career.
“Because of the potential for misuse and potential for unwarranted harmful results, only protective orders which meet legislative requirements should issue,” the Supreme Court explained in Curry.
In Ohata v. Dib, Division IV of the Court of Civil Appeals on Sept. 30, 2015 found that a Cleveland County protective order did not meet requirements of the Protection from Domestic Abuse Act, Okla. Stat. tit. 22 § 60.1(1).
That statute sets out the procedures for protective orders. Family members or those who are in or were in domestic relationships can petition for a domestic abuse protective order. Victims of rape may also petition for a protective order. Anyone 13 years of age or older may seek an Oklahoma protective order when stalking is alleged.
Domestic abuse is defined in that law as “any act of physical harm or the threat of physical harm” by a family member, a household member or those who are or were in a dating relationship. The appeals court said the Cleveland County court abused discretion in determining the man’s comments during a two-hour Facetime chat meant he had made a credible threat to physically harm the woman.
The woman recorded part of the conversation, but not the part in which she alleges the man threatened to kill her. He acknowledged using the word “kill” but did not admit threatening to kill the woman, who was overseas at the time. Upon her return to Oklahoma, the man never contacted the woman.
What is a Credible Threat?
In Curry, the Oklahoma Supreme Court established that, unless a defendant admits intent to harm, the intent must be established from objective facts.
“In determining whether the defendant intended to carry out the threat, the court should look at the defendant’s words and actions in light of the attendant circumstances,” the Supreme Court wrote in Curry.
The court in Curry further cited a Massachusetts case – Vittone v. Clairmont (834 N.E. 2d 258, 265, Mass. App. Ct. 2005) – which considered parameters in addition to the defendant’s acts and words along with the circumstances and environment at the time of the alleged threat. The Massachusetts court considered parties’ statements in view of their:
- history,
- relationship,
- age,
- intelligence,
- health,
- physical strength, and
- other evidence that the threat is real and likely to be carried out.
In the September 2015 Ohata v. Dib decision, the appeals court noted that the woman never claimed the man was physically violent in the past, toward her or anyone else. An argument during which he had followed her around their apartment and kicked a trash can containing pictures of her former boyfriend did not indicate a propensity to violence, the court said.
The woman testified that the man, during the Internet chat, had emphasized his capacity toward retaliation. The man’s alleged acts of revenge toward people in other circumstances outside the dating relationship, however, had not involved violence, the appeals court noted.
The court also noted both parties had testified about a proposed settlement agreement under which the woman would have dismissed her petition for a protective order. That settlement might have required the man to repay a $12,000 loan from the woman’s family. The man said he did not sign the settlement because of the repayment clause and because it did not prohibit the woman from contacting him.
Domestic Abuse, Harassment or Stalking?
The appeals court found the Cleveland County court correctly discerned that the protective order was not based on harassment. Although testimony at trial addressed harassment, the Cleveland County order did not specify protection from harassment as part of the court ordered relief.
A checkbox selected on the court’s order stated it was to protect the woman “from domestic abuse, stalking, or harassment.” (Emphasis added by the appeals court.) The language of the protective order specified that it was for “Domestic Abuse and/or Stalking” and that after a hearing, the court had found the man “represents a credible threat to the physical safety of an intimate partner.” Stalking – an option referenced on the form — was not alleged at the hearing, the appeals court noted.
The appeals court also reversed the Cleveland County judge’s order that the defendant pay the woman’s legal fees and costs, which totaled more than $19,000. Those costs apparently included forensic analysis of computer equipment belonging to both parties in the case.
Although unpublished, the case is significant because it indicates Oklahoma’s appellate courts will reverse district courts for abuse of discretion in granting protective orders. The Oklahoma Supreme Court’s 2009 decision in Curry said protective orders are reviewed on the same basis as any other injunction – for abuse of discretion by the lower court.
Oklahoma Protective Order Procedures
A domestic order of protection leaves a permanent mark on a person’s public profile. The court order labeling a defendant as a domestic abuser may be available on the Internet, with no distinction as to whether the order resulted from a single heated argument or an extended pattern of egregious violence.
While the order of protection remains in effect, your Second Amendment rights are limited by federal law. A person under a domestic violence protective order is be prohibited under federal law from possessing, buying or selling firearms. Violation of the federal firearms restriction result in as much as 10 years in prison. Oklahoma law prohibits those enjoined under a domestic protective order order from holding or obtaining a concealed carry license.
If you have been named as a defendant in a petition for a protective order, it is urgent that you act immediately to assert your legal rights. You have a right to a hearing within two weeks of the day the petition was filed. At that hearing, the court will determine if an Oklahoma protective order is warranted.
A court may also issue an emergency ex parte order if it determines an immediate restraining order is necessary to protect a person from serious harm. Violation of an emergency protective order is punishable by as much as a year in jail.
You might not know about a petition for protective order against you until a few days before an Oklahoma protective order hearing is scheduled. Courts will often grant a continuance if a person needs time to hire a protective order defense attorney in Tulsa.
Strategy Session: Tulsa Protective Order Defense Attorney
It is important that you retain a Tulsa protective order defense attorney to protect your rights when you are named in a Tulsa petition for protective order. If a district court has granted a domestic restraining order, you might have grounds to appeal. The Oklahoma Supreme Court’s Curry decision suggests Oklahoma appellate courts might be less inclined to accept lower courts’ rubber-stamp decisions to grant protective orders.
Wirth Law Office protective order defense attorneys often advise clients about their rights and options. If you have been named as a defendant in a petition for protective order, contact a Tulsa protective order attorney at 918-879-1681, or send your question using the form at the top of this page.
