Boston Criminal Defense Lawyer Blog

The standard that a Court must apply to determine whether to issue a 209 A restraining order is whether the plaintiff has been put in reasonable apprehension of imminent physical harm. In many Massachusetts court houses, there are so many requests for restraining orders that a portion of every day is dedicated to these types of hearings. In many cases, a plaintiff alleges that the defendant's actions caused him or her to become fearful.

In defending against a restraining order it is important to point out that the complainant's fears are not reasonable and/or that there is not REASONABLE apprehension of IMMINENT PHYSICAL HARM. For example, if a plaintiff is alleging that the defendant caused him or her to fear for his or her safety it is important to establish when the alleged incident occurred. If the plaintiff is alleging the defendant's conduct occurred weeks or months ago, the judge may decide that the actions were not recent enough to establish an imminent fear.

In order to apply for a restraining order in Massachusetts the defendant and the plaintiff must be married or were married to each other; must be or reside in the same household; are or were related by blood or marriage; have a child together or are or were in a "substantive dating or engagement relationship." Thus, not only are couples often at the center of restraining order hearings but a disgruntled roommate may apply for a restraining order in an attempt to oust a roommate. In these situations, an experienced Massachusetts restraining order attorney can establish that the plaintiff is not in fear of the defendant but merely wants him or her removed from the apartment.

In the event that a restraining order issues, it usually states that a defendant cannot have any direct or indirect contact with the plaintiff. In the age of electronics, this includes no text messaging, no phone calls and no e-mails. Obviously, a defendant must refrain from leaving notes, sending messages or flowers to a plaintiff even if the items are not personally delivered by him or her. Any contact, direct or indirect, is considered a violation. Thus, even a defendant's attempt to have a message delivered to a plaintiff from another individual is considered indirect contact.

Continue reading "Overview Of The Massachusetts 209 A Restraining Order Law" »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

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The plaintiff alleged in the application for a restraining order that she was afraid to be left alone in the residence that she shared with the defendant. The plaintiff claimed that she was afraid that the defendant was "unable to control" her temper. A temporary 209 A restraining order issued based on the plaintiff's claim that the defendant verbally and emotionally abused the plaintiff. Following a hearing in which Attorney McCarthy extensively cross examined the plaintiff, the District Court judge vacated the order holding that the plaintiff had not demonstrated that she was in reasonable fear of imminent physical harm.

If you have been served with a temporary restraining order in Massachusetts it is important that you know all of your rights. Although a restraining order is a civil order an alleged violation can result in the issuance of a criminal complaint. Thus, it is not always in one's best interest to agree to the continuance of the order. M.G.L. Chapter 209A states that a person "suffering from abuse" by a "family or household member" may seek protection from such abuse by application to the court for an order requiring the defendant (among other measures) to refrain from abusing or contacting the victim. "Abuse" is defined by the statute as acts "(a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress." G.L.c. 209A, § 1, as amended through St. 1996, c. 450, 232. See Commonwealth v. Gordon, 407 Mass. 340, 344-345 (1990); Wooldridge v. Hickey, 45 Mass. App. Ct. 637 638-639 (1998). In deciding whether to issue such a c. 209A order, a judge must consider carefully whether serious physical harm is imminent. Smith v. Joyce, 421 Mass. 520, 523 n. 1 (1995). "Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm." Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998), citing Larkin v. Ayer Div. of the Dist. Ct. Dept., 425 Mass. 1020 (1997). The Court also reads the Legislature's language in § 1 ("attempting," "placing," and "causing") as revealing an intent to limit the definition of abuse to the present tense. See United States v. Wilson, 503 U.S. 329, 333 (1992) ("Congress' use of a verb tense is significant in construing statutes"). Language in § 3 also suggests that c. 209A was designed to allow persons presently "suffering" from abuse to seek relief. Therefore, the Court concluded that G.L.c. 209A, § 1(b), focuses on preventing imminent serious physical harm, not merely responding to past abuse. Dollan v. Dollan, 55 Mass. App. Ct. 905 (2002). If you oppose the continuance of the restraining order having an experienced Massachusetts domestic violence lawyer on your side who knows the legal standards is important.

Continue reading "Attorney McCarthy Successfully Vacates 209A Restraining Order In Lawrence District Court" »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

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Angel Mejia, a Lawrence Police Detective, was arrested and charged with assault and battery on his sixteen year old daughter. According to The Lawrence Eagle Tribune, Mejia had a confrontation with his teenage daughter when he caught her attempting to sneak into the house at 5:45 a.m.. It is alleged that Mejia pushed his daughter onto the pavement, where she struck her face and suffered bruises and scrapes. It has been reported that the Detective also pushed her against the garage door and the refrigerator. This type of case is often categorized as a case of Domestic Violence and taken very seriously by prosecutors and the court system. Due to the fact that Mejia routinely works with prosecutors in the Lawrence District Court the case has been specially assigned to an Essex County Assistant District Attorney usually assigned to the Peabody District Court. The Detective was released and ordered to abide by any conditions ordered by the Department of Children and Family Services. Mejia is currently scheduled to return to court on December 21, 2009. The Tribune did not indicate whether the sixteen year sought a 209A restraining order against her father.

Based on the facts in this case, the defendant is likely charged with three counts of assault and battery by means of a dangerous weapon. If convicted for assault and battery by means of a dangerous weapon in Massachusetts, a defendant can be sentenced to up to two and one half years in jail on each count or up to ten years in state prison on each count. Here, the "dangerous weapons" would be the pavement, garage door and refrigerator. An object may qualify as “dangerous weapon,” within the meaning of statute either because it is dangerous per se, as an instrumentality designed and constructed to produce death or great bodily harm, or because it is used in dangerous fashion. Although a refrigerator, pavement or garage door are not "dangerous per se", if they are used in a "dangerous fashion" they may be considered a dangerous weapon in Massachusetts. Some examples of objects that have been found to be dangerous weapons in Massachusetts that would not ordinarily be one are: pavement, sneakers, rings and a lighted cigarettes.

Continue reading "Lawrence Police Officer Charged With Assault And Battery On His Teenage Daughter" »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Assault and Battery , Assault and Battery By Means Of A Dangerous Weapon , Domestic Assault and Battery , Restraining Order

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A Dorchester District Court Judge denied the request of a female Boston Police Officer to extend a temporary restraining order issued against a male colleague. According to The Boston Herald, the female officer claimed that the fellow officer raped her back in August when they attended a shooting competition in Connecticut and shared a hotel room. Boston.com reports that during the hearing the woman claimed that she was raped three times on August 25th in a hotel room that she shared with two other officers. According to reports, she reported the rape after determining that she was pregnant and that the defendant could be the father of the baby.

The plaintiff testified that despite her position that she is in fear of the defendant, she sent over 100 text messages to him following the alleged rapes. Additionally, she admitted that after the alleged incidents she requested to be transferred to the Special Operations Unit where the defendant was working. Although all of the facts of this case are not known, the obvious question is, if she was fearful of the defendant, why did she want to be transferred to his unit?

In Massachusetts M.G.L.c. 209A states that a person "suffering from abuse" by a "family or household member" may seek protection from such abuse by application to the court for an order requiring the defendant (among other measures) to refrain from abusing or contacting the victim. "Abuse" is defined by the statute as acts "(a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress." In deciding whether to issue such a c. 209A order, a judge must consider carefully whether serious physical harm is imminent. "Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm." Criminal cases that result from an alleged violation of a restraining order are often categorized as cases of domestic violence.

According to the Boston Herald, in this case the judge held that the plaintiff could not establish the type of "relationship" that is required by the statute to extend the order. It also appears, that based on these facts, the plaintiff really did not fear the defendant because she continued to contact him. Also, the fact that the alleged incident occurred over a month ago could impugn her position that she was in fear of "imminent" physical harm.

Continue reading "Dorchester District Court Judge Vacates Temporary Restraining Order Against Boston Police Officer" »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

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