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Using Orders of Protection to Deter Civil Protests

The Disturbing Case of Mary Anne Grady Flores

by NATHAN TAILLEUR

As Ithacans struggle to come to grips with the one-year sentence dealt Thursday to peaceful protester Mary Anne Grady Flores, questions have arisen concerning the Order of Protection she was jailed for having violated.

Grady Flores, who has recently been released on bail pending the appeal of her case, was arrested on February 13, 2013 for violating a temporary Order of Protection granted to Col. Earl A. Evans of the Air National Guard, who works at the Hancock Base near Syracuse.

Evans requested that a temporary order be placed against Grady Flores and other protesters after they took part in rallies to protest the use of drones in US warfare operations overseas. The Onondaga District Attorney’s office moved forward with the request and it was granted by Dewitt Town Justices Donald Benack and Robert Jokl in October 2012.

What is a temporary order of protection?

Temporary orders of protection are typically issued under the NYS Family Court Act or Criminal Procedure Law in cases of violence or threatened violence between intimate partners. If the accused and the accuser are not intimate partners, they usually have at least some familiarity with one another. New York State Court Acts state that temporary orders of protection should be granted by judges for “good cause shown” – a criterion which is not otherwise defined in the legislation.

Temporary orders of protection are designed to grant relief to those in imminently explosive situations – situations in which someone has the potential to personally suffer some great physical or emotional harm.

Because they are designed for situations of emergency, New York State legislation allows them to be granted in ex parte judicial proceedings – that is, proceedings in which the accused (the person whom the order of protection is going against) has not yet had an opportunity to appear and defend themselves against the accusations.

In an interview with the Ithaca Voice, Tompkins County Court Judge Joseph Cassidy explained that ex parte proceedings violate, in some ways, the general principles of due process. However, he says that these types of proceedings are appropriate for temporary orders because of the dangerous and urgent nature of many domestic violence situations.

“It’s a balance between kind of the classic rights of the person who’s going to have this order of protection against them and the reality that a person might be in great danger,” Cassidy said.

Was the order against Grady Flores valid?

As is the case with family offenses, temporary orders of protection for non-family offenses are designed to help those in imminent danger. The question for any judge considering whether or not to give a temporary order of protection is, then, is the party that is requesting protection being put in imminent danger by the party whom the order of protection is going against?

Earlier this year, State Supreme Court Justice Brunetti overturned a temporary order of protection granted by Judge Gideon in a peaceful protest case very similar to Grady Flores’. In his ruling, Brunetti argued that that when a party is not him/herself a victim of the minor offenses commonly associated with peaceful protest– Obstructing Governmental Administration, Disorderly Conduct –he/she is not eligible for an order or protection.

Because Col. Evans was not personally being put in any danger due to the Grady Flores’ protesting, there were no grounds for Col. Evans’ request. It is troubling that the Onondaga District Attorney’s office elected to go through with Evans’ request – apparently thinking that this was a case to which the Order of Protection Statute applied.

How was the order granted in the first place?

There is no provision in New York State Court Acts enabling accused parties to contest ex parte temporary order of protection rulings. The basic right of the accused to “face their accuser” does not apply to these cases.

That’s what made it possible for Grady Flores and the other protesters to have orders of protection placed against them by someone they’d never seen before. It also means that Grady Flores and the other protesters involved did not have a chance to appear in court to defend themselves against the order of protection prior to its being granted by Justices Benack and Jokl.

In his commentary on the NYS Family Court act, Prof. Merril Sobie of Pace Law School writes that, “given the possibly extreme repercussions to the respondent, the lack of statutory due process following the issuance of an ex parte temporary order is both surprising and troubling.”

Quite so.

And Prof. Sobie’s concerns are especially problematic in the case of non-family temporary orders, where respondents may not even know or be able to recognize their accusers.

The Grady Flores case illustrates that there needs to be, in NYS Courts, a clear path by which to contest a temporary order of protection, especially in the case of non-family offenses. Had there been a clear path for Grady Flores to contest Evans’ order (on any of a multitude of compelling grounds which would have been available to her) she might not have been placed at the mercy of Judge Gideon in the first place.

What are the implications of the use of orders of protection in civil disobedience cases?

The NYS penal code is written to protect peaceful protesters. Sit-ins and other forms of protest are not “criminalized” – the most one is chargeable for is trespassing or disorderly conduct, minor offenses which don’t leave one with a criminal record and have maximum penalties of small fines or 15-day jail sentences.

The issuance of an Order of Protection to deter routine cases of protest inappropriately raises the stakes of peaceful civil disobedience – making it punishable as Criminal Contempt (a class A misdemeanor with a maximum 1 year jail sentence).

It is the discretion of the judge to give offenders the maximum sentence allowable by law. However, we have to ask whether the book that Judge Gideon threw at Grady Flores was heavier than it should have been.

Nathan Tailleur is a columnist for the online news source The Ithaca Voice. He is a recent graduate of Cornell University and currently works for the Mental Health Association of Tompkins County.