|
TOPEKA POLICE DEPARTMENT |
Number: LB 03-02 |
|
LEGAL BULLETIN |
|
|
SUBJECT: STANDBYS INVOLVING A PROTECTION FROM ABUSE ORDER |
|
|
AMENDS: |
|
|
STATUTE REFERENCES: KSA 60-3101, et.seq. |
|
|
ISSUING AUTHORITY: John Knoll, City Attorney |
DATE ISSUED: 10 October 2003 |
The Topeka Police Department has recently received several complaints from persons who have sought a protection from abuse order from the Shawnee County District Court pursuant to K.S.A. 60-3101, et seq. The primary complaint is that officers and dispatchers are incorrectly advising the plaintiff that the Protection from Abuse Order restrains both parties from having any contact with one another. While a court can restrain a plaintiff in an appropriate case, a restraining order against a plaintiff will only occur if the defendant properly files a cross or counter petition seeking such relief, the plaintiff gets notice of the petition and the court specifically finds that both parties acted primarily as aggressors and neither party acted primarily in self defense. K.S.A. 2002 Supp. 60-3107(b).
In one recent example, a female plaintiff obtained a temporary protection from abuse order ordering the male defendant to not "abuse, molest or interfere with the privacy or rights of the plaintiff, the plaintiff's minor child(ren) or the minor child(ren) residing with the plaintiff, wherever they may be." The order went on to state, "[t]he defendant shall not enter or come on or around the premises or the dwelling or workplace where the plaintiff resides, stays or works." Officers were called to stand by at the defendant's residence while the plaintiff obtained her winter coat and a few other belongings. An officer read the order, and advised plaintiff that SHE would be violating the order if she entered the defendant's residence. The officer refused to assist plaintiff in retrieving her belongings, but did tell the defendant that he could not destroy the plaintiff's belongings.
Perhaps the officer was confused about who was the plaintiff and who was the defendant. Usually the plaintiff is the one bringing the action and the defendant is the one restrained. If there is any doubt in an officer's mind about who the restrained party is, check the caption on the document. Immediately after the line identifying the court that issued the document, there will be lines indicating who is the plaintiff and who is the defendant. Most protection from abuse orders restrain only the DEFENDANT from entering the PLAINTIFF'S residence, not the other way around.
The officer may have also been confused by a recent case profiled in the news in which a plaintiff who had a restraining order against a defendant invited the defendant over to her house. When the inevitable problems arose between the two and police were called, the defendant was charged with violating the restraining order and, in an unusual move, the prosecutor charged the plaintiff with conspiring with the defendant to violate the restraining order. Conspiracy charges against domestic violence victims are very rare, and conspiracy is a very unlikely charge when the victim simply wants to go to the restrained party's residence to pick up personal items.
One of the provisions in the Protection From Abuse Act allows judges to make "provision for the possession of personal property of the parties and ordering a law enforcement officer to assist in securing possession of that property, if necessary." K.S.A. 2002 Supp. 60-3107(a)(8). Please provide the plaintiff victim any necessary assistance in securing their property, and please advise if you have any questions about this bulletin.
John J. Knoll
Assistant City Attorney & Police Legal Advisor
City of Topeka, Kansas
jknoll@topeka.org