Orders of Protection Limitations Vary Across U.S. States
The press regularly reports on bad actors stalking, harassing, threatening, and physically harming high-profile individuals. Many more instances evade media coverage. High-net-worth individuals and corporate executives—among others with public profiles—must proactively address these risks.
In the Information Age, bad actors can instantaneously access data online, such as an individual’s physical location. Currently, companies in the United States are assessing and enhancing their executive protection efforts, such as by employing executive protection professionals, in an effort to respond proactively and in real time to security-related issues. When needed, companies and executives may seek court-issued orders of protection, which can prevent a bad actor from communicating with or coming within physical proximity of an individual.
It is not a perfect fix. Options vary from state to state.
For example, under New York law, individuals may obtain orders of protection, also commonly referred to as restraining orders, only against someone who (1) is charged with a crime, (2) committed violence within a family or intimate relationship, or (3) is a party to an ongoing divorce proceeding. As a result, New York law cannot alleviate the security-related risks that corporate executives and other high-profile residents and visitors face regularly.
Civil orders of protection in New York are only available in family law and matrimonial contexts, exposing individuals to bad actors against whom they are unable or unwilling to pursue criminal charges or to whom they are not related and with whom they have no prior intimate relationship. New York is one of only a few U.S. states with this issue; more than 40 other states have statutes providing more ready access to civil orders of protection.
In California, courts grant civil harassment restraining orders upon petition against bad actors who harass, stalk, or threaten an individual emotionally or physically, regardless of whether there is a familial or intimate relationship. A court grants the order and enjoins the bad actor from engaging in harassing conduct upon finding that an individual has provided “reasonable proof of harassment” by the bad actor, “great or irreparable harm” may result to the individual if the order is not issued, and future harassment is likely to occur.
California law defines “harassment” as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.” Additionally, “the course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress” to the individual.
If the bad actor violates the order, they can be prosecuted and sent to jail. The order further prohibits the bad actor from owning firearms, ammunition, or body armor; contacting the individual who petitioned the court; or being within a certain physical distance of the individual. These are logical legal provisions, as California, like New York, is home to an outsized number of high-profile and high-net-worth individuals and families—easy targets for bad actors who can damage a person’s physical and emotional well-being without ever meeting them.
When needed, companies and executives may seek court-issued orders of protection, which can prevent a bad actor from communicating with or coming within physical proximity of an individual.
In contrast, New York courts only issue orders of protection in criminal or family law and matrimonial contexts. A criminal order of protection is issued in connection with a defendant’s release from custody during the pendency of a criminal action—known as a temporary order of protection—or as a consequence of the defendant’s conviction. On the other hand, a court issues a family court or matrimonial order of protection as part of a civil proceeding in an effort to safeguard individuals affected by violence within a family or an intimate relationship.
Outside the context of criminal or family and matrimonial matters, high-profile individuals remain vulnerable to stalking and harassment, among other risks. For example, prominent CEOs are easily identifiable due to their media presence, and bad actors can seek and readily obtain information about them through a range of both lawful and unlawful resources online, such as the Dark Web. Bad actors may be identifiable but have no familial or intimate relationship with the at-risk individual. Additionally, based on the bad actor’s conduct, law enforcement may be unable to bring criminal charges against them.
With law enforcement facing so many challenges and limited resources, U.S. states, including New York, should follow California’s lead and provide greater access to civil orders of protection in an effort to better safeguard residents and visitors against the risks from bad actors.
Timothy D. Sini is a partner in Nixon Peabody LLP's Government Investigations and White-Collar Defense practice and crisis management team. He was formerly a federal prosecutor in the Southern District of New York, Suffolk County police commissioner, and elected Suffolk County district attorney, where he led one of the largest prosecutors’ offices in the United States.
Ryan M. Maloney is an associate in Nixon Peabody’s Complex Disputes practice, where he represents clients in a wide range of commercial litigation matters and investigations.
Jared D. Kaiman is a law clerk in Nixon Peabody’s Government Investigations and White-Collar Defense practice, where he helps represent clients in a wide range of litigation matters and investigations.
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