Protective Orders: What You Need to Know

Protective Orders and criminal law go together like peanut butter and jelly—it doesn’t seem right to have one without the other. With years of experience in criminal defense, Attorney Marc Lopez is no stranger to orders of this kind. While Protective Orders are exceedingly common, Attorney Lopez has recently encountered something he’s never seen before: A company filing a Protective Order against a former employee. The business seeking the Protective Order was basing its request on the fact that a company vehicle sustained damage while it was servicing homes near an ex-employee’s residence. There was absolutely no evidence that the former employee was involved.

This struck Attorney Marc Lopez as a very novel approach. By statute, you can only seek a Protective Order against:

  • a family member (or other household member) who’s engaged in some form of domestic violence against you,
  • someone who’s stalked you, or
  • someone who’s committed a sex offense against you.

In this case, the ex-employee was neither a family member nor a sexual aggressor. (Sidebar: Even if it’s sometimes convenient to think of corporations as people, it’s tough to imagine a flesh-and-blood human having either a domestic relationship or impermissible sexual contact with an incorporeal entity.) This left the company with only one option, which was to characterize its former employee as a stalker. This approach was problematic for a number of reasons.

Stalking is defined by the Indiana Code as “repeated or continuing harassment.” Harassment, in turn, is defined in relevant part as “conduct that would cause a reasonable person to suffer emotional distress.” While corporations may be treated like people in certain contexts, it seems impossible for a business organization to experience the “emotional distress” invoked by the harassment definition. If a corporation can’t feel “emotional distress,” then it seems legally impossible for it to be the victim of harassment. If it’s legally impossible for a corporation to be harassed, it’s likewise impossible for it to be the victim of stalking.

A Protective Order Hearing proceeds very much like a Bench Trial (i.e., a trial with a judge but without a jury). The Petitioner must prove that he or she (or it, in this case) is entitled to a Protective Order by a preponderance of the evidence. Unlike the familiar criminal standard, preponderance of the evidence only requires a petitioner to show that something is probably true. This is not beyond a reasonable doubt. It’s simply more likely than not.

Shortly before the hearing began, opposing counsel approached Attorney Marc Lopez with a proposal: Let’s just agree to the Protective Order and save everyone some time. While Attorney Lopez loves a good settlement negotiation, he was unable to spot the potential upside of this so-called offer. His client (the ex-employee) was facing a Protective Order; that was the worst that could happen to him. Why would anyone ever agree to a worst-case scenario without a fight? Attorney Marc Lopez is neither lazy nor stupid, and he knows a bad deal when he sees it.

A Protective Order in Indiana has serious implications. If a judge enters a Protective Order against you, it doesn’t just restrict your freedom of movement and association. You might also be compelled to pay restitution, mortgage or rent, attorney fees, or other related expenses. The judge could also order you to wear a GPS tracking device or prohibit you from possessing firearms. If you violate a Protective Order, you can be charged with felony stalking or misdemeanor invasion of privacy. As with a lot of misdemeanors, you’ll be charged with a felony if you have a prior conviction.

Because Attorney Marc Lopez was unwilling to concede defeat, the Protective Order Hearing went ahead as planned. The company presented testimony from its keeper of records, as well as a few employees who were on the job when the vehicle was damaged. None of these people actually witnessed the vandalism occurring, and the company presented no evidence concerning motive.

Experienced litigator that he is, Attorney Marc Lopez used his cross-examination of the company’s witnesses to establish that Indiana’s Protective Order statute offered the Petitioner no grounds for relief. Just to be thorough, Attorney Lopez also demonstrated that his client was not even home when the incident is alleged to have occurred. Because business organizations don’t actually have feelings, the Judge declined to find that the company had been the victim of stalking. As a result, the Protective Order was denied, and the ex-employee left the courthouse awash in vindication.

Moral of the Story: Indiana Protective Orders are serious business, and you should treat them accordingly. If you or a loved one is dealing with a Protective Order issue, give the Marc Lopez Law Firm a call at 317-632-3642.