Massachusetts Appeals Court Reverses Restraining Order Conviction Where Defendant Was Not Properly Served

The Massachusetts Appeals Court today reversed a man’s conviction for violating a restraining order where the Commonwealth failed to prove beyond a reasonable doubt that the defendant had been served with, or was otherwise aware of, the existence of the order.  The name of the case is Commonwealth v. Tiernan.  

The defendant and the victim were involved in a romantic relationship in 2007 and 2009.  After they broke up, the victim applied for an emergency restraining order in June of 2009.  As is typical, the defendant was not present at the emergency restraining order hearing because he was not notified of the hearing ahead of time.  There were two subsequent hearings during the next several weeks, and the victim and defendant both attended.  The restraining order was extended for one year – until July 13, 2010.  The order prohibited the defendant from contacting the victim, and he was ordered to stay at least 100 yards away from her and stay away from her residence.  The defendant was served with this order.  The following year (on July 13, 2010), the victim showed up to again extend the restraining order.  The defendant was not present at this hearing, and the judge extended the order for another year.  Usually a police officer will hand-serve the order on the defendant but for some reason that didn’t happen in this case.  In August of 2010, the victim reported to the police that the defendant’s car was parked in a driveway on a street adjacent to her Arlington home.  The cops showed up and, after confirming the victim had an active restraining order, located the defendant’s car which was closer than 100 yards to the victim’s house.  The cops saw the defendant in the area and arrested him for violating the restraining order.  A Cambridge District Court jury found the defendant guilty and he appealed.

To prove a violation of a restraining order, the Commonwealth must establish beyond a reasonable doubt that: there was an active restraining order on the date in question; the defendant violated the terms of the order; and the defendant had knowledge of the order.  Knowledge of the order is typically not in dispute at trial, because there is usually evidence that the defendant was hand-served with the order by a police officer.  However, as previously mentioned, no such service occurred in this case.  The question becomes, then, whether the defendant received actual or constructive notice of the order (which is sufficient to prove the notice element of the crime).  The Commonwealth argued on appeal that because the defendant knew an extension hearing was occurring on July 13, 2010, and made the decision not to attend, he had constructive notice that the order was in effect.  The Appeals Court didn’t buy this argument, pointing out that extension of the order was not automatic.  If the victim had not shown up at the extension hearing, the restraining order would have automatically terminated and the defendant would have been legally permitted to have contact.  Because the Commonwealth failed to present any evidence that the defendant knew about the terms of the restraining order on the date of his arrest, the Appeals Court reversed his conviction and entered a finding of not guilty.