Subjective vs. Objective in Restraining Orders

Attorney Spear

7th Sep, 2022


K.D. v D.D., officially released today by the Appellate Court of Connecticut, in an opinion by Judge Douglas Lavine, joined by Chief Judge William Bright …

K.D. v D.D., officially released today by the Appellate Court of Connecticut, in an opinion by Judge Douglas Lavine, joined by Chief Judge William Bright and then-Judge Joan Alexander, involved a restraining order obtained by a divorcing wife against her husband.

Essentially, the wife had one view of an encounter that occurred in a restaurant and the husband had his own view of what happened. Interestingly they both claim to be scared of the other.

Husband said he was invited to dinner by a friend, and when he saw his ex wife, husband immediately went to the hostess stand to ask for a phone to call an Uber to get him from the restaurant.

While wife agreed he did leave the restaurant after a short time, she had many more details to add, like his aggressive behavior. The wife stated she thought he looked very physically tense and appeared very agitated in his physical movements.

She further testified that during the incident the defendant’s shoulders were “very high” and that he was “leaning in aggressively with his hands clenched and tight and it seemed like he was breathing very heavy.” She explained that the defendant then moved away from the hostess desk “in a wide circle behind [her] slowly.”

So here is what it gets down to the nitty gritty:

The appellate court said that the trial court wrongly “viewed the evidence through the lens of the plaintiff’s subjective reaction to the defendant’s conduct, namely, her resulting fear, and stated that the plaintiff’s testimony ‘indicated a tone of hostility which the plaintiff felt frightened her.'” Instead, “[a]lthough the reaction of an applicant can help provide context,” the court should have looked at whether “it is objectively reasonable to conclude, based on context, that the defendant had subjected the alleged victim to a pattern of threatening”; the appellate court therefore ordered the trial court to vacate the restraining order.

Translation: just because YOU feel scared doesn’t mean there is anything to be scared of, let alone that requires a restraining order. There are some other caveats though, if the person is repeatedly making you feel harassed, and/or using language that only you know (pet names and inside jokes) then while it may seem subjective to you and other people would read a text message and think “SO?” it can be something for you to be scared of and get a restraining order. The bottom line is to be reasonable.

If you watched “Friends” in the 90s, you may remember an episode where everything reminded Ross of his ex wife. The most memorable was probably the peach pit. Would other people be depressed at the sight of a peach pit? Most would not. But what if Ross found a peach pit in his apartment? At his desk at the museum? In his car? He would be led to believe the ex-wife was leaving them on the purpose. Is he feeling threatened? Maybe, maybe not. What if the ex wife was violent and Ross had a restraining order previously ordered due to a family violence case wherein the ex wife was violent? Now, reasonable people would start being concerned for poor Ross.

You need to show that anyone in that position would feel threatened, and you can get the judge (or jury) there by showing incidents of past violence, for example.

Was the wife at the restaurant scared? Sounds like it. Was it worth a restraining order? The court says no, because there was no violence and he left. Was he angry? Sounds like it. Was it directed at her? Hard to say. That gray area is why there is no restraining order.

%d bloggers like this: