Restraining Order

• Author: Jeffrey Lehman, Shirelle Phelps

Page 339

A command of the court issued upon the filing of an application for an INJUNCTION, prohibiting the defendant from performing a threatened act until a hearing on the application can be held.

A restraining order is an official command issued by a court to refrain from certain activity. Restraining orders are sought by plaintiffs in a wide variety of instances for the same reason: the plaintiff wishes to prevent the defendant from doing something that he or she has threatened. Restraining orders are used in a variety of contexts, including employment disputes, COPYRIGHT infringement, and cases of harassment, domestic abuse, and STALKING. All restraining orders begin with an application to the court, which decides the merits of the request by using a traditional test. Limited in their duration and effect, restraining orders are distinguished from the more lasting form of court intervention called an injunction. Generally they are sought as a form of immediate relief while a plaintiff pursues a permanent injunction.

A court submits a request for a restraining order to one of several tests. These tests vary slightly across different jurisdictions, but generally they involve the analysis of four separate factors: (1) whether the moving party will suffer irreparable injury if the relief is not granted; (2) whether the moving party is likely to succeed on the merits of the case; (3) whether the opposing party will be harmed more than the moving party is helped; and (4) whether granting the relief is in the public interest.

Usually, restraining orders are not permanent. They exist because of the need for immediate relief: the plaintiff requires fast action from the court to prevent injury. Seeking a permanent injunction can take months or years because it involves a full hearing, but the process of obtaining a restraining order can take a matter of days or weeks. For even faster

Page 340

A sample temporary restraining order

relief, moving parties can seek a TEMPORARY RESTRAINING ORDER (TRO). These are often issued ex parte, meaning that only the moving party is present in court. The TRO usually lasts only until an injunctive hearing involving both parties can be held.

Harassment of an individual can result in a permanent restraining order. This command of the court is also called a protective order. All states permit individuals to seek a restraining order when they...