Life has a funny way of slowing you down. One moment you’re on the top of the world, winning the Heisman trophy at the age of 20. The next moment you’re 22 and hear your name being called during the first round of the NFL draft. In the blink of the eye you’re 23 – completely out of control, on the brink of being cut from your team due to substance abuse issues, and hit with a two-year restraining order that prevents any contact whatsoever with your estranged girlfriend. So it goes.
This situation of highs and lows describes Johnny Manziel’s roller coaster life for the past three years.
Last week a Texas judge entered an Order of Protection (“Restraining Order”) against Johnny Manziel. The Order prevents “Johnny Football” from having any contact, or coming within 500 feet from his former girlfriend. Manziel was also ordered to pay $12,000 in legal fees and cannot own or possess a gun while the order of protection is effective for a period of two years.
A report released by the Fort Worth Police alleges that Manziel struck his girlfriend on several different occasions. Additionally, the report states that Manziel threatened to kill himself and the woman. Based on these facts, the woman asked the court to issue an Order of Protection based on her belief that Manziel is “likely to commit family violence against me if the protective order is not granted.”
Manziel’s situation is similar in many respects to many people who file a Petition for Order of Protection in Albuquerque, New Mexico.
In New Mexico, an Order of Protection is filed under the Family Violence Protection Act. This Order of Protection is commonly filed by one’s partner after the relationship turns sour.
For any of the reasons listed below, one’s former partner may engage in behavior that New Mexico courts consider “abusive.” In New Mexico, a family member or person in a continuing relationship can file a Petition for Order of Protection asking the Court to grant an Order of Protection (“Restraining Order”) that prevents the alleged abuser from having any contact with the alleged victim.
According to the Family Violence Protection Act, the necessary “Act of Abuse” includes: (1) Physical harm, (2) Severe Emotional Distress, (3) Bodily injury or assault, (4) Threat causing immediate fear of bodily injury by any household member, (5) Criminal Trespass, (6) Criminal Damage to Property, (7) Repeatedly driving by a residence or work place, (8) Telephone harassment, (9) Harassment, or (10) Harm or threatened harm to children.
The process begins when the alleged victim (“Petitioner”) files a Petition for Order of Protection. In Albuquerque this Petition is filed with the Domestic Violence Division of Second Judicial District Court, between the hours of 9:00 – 11:00 AM & 1:00 – 3:00 PM. The Petition for Order of Protection should include all of the information and facts demonstrating that one of the “Acts of Abuse” described above has taken place.
The Petition is then reviewed by a District Court Judge. This Judge generally leans on the side of caution and finds that the Petition contains specific facts providing the Judge with reason to believe that an act of domestic abuse has occurred.
At this point a Temporary Order is entered ex parte (i.e. without a Hearing) that prevents the accused individual (“Respondent”) from having any contact with the Petitioner. This Temporary Order remains in effect until a Hearing is held. A Sheriff then personally serves the Respondent with the Temporary Order and Order to Appear – free of charge.
The Order to Appear puts both parties on notice about the time and date that a Hearing will take place, and the appointed Special Commissioner. According to New Mexico law, this Hearing must take place within 10 days from the date that the Temporary Order is issued. At this Hearing the Petitioner and the Respondent go before the randomly assigned Special Commissioner. At this time, both parties’ have the opportunity to present their respective cases, including any evidence surrounding the alleged acts of abuse that are outlined in the Petition.
After the Special Commissioner hears all of the evidence, the Commissioner then decides if by a “Preponderance of the Evidence” the Petitioner has demonstrated that an act of abuse has taken place. If so, the Commissioner will extend the Temporary Order by entering a Permanent Order of Protection. In this respect, “Preponderance of the Evidence” means “more likely than not.” In other words, based on all of the evidence that is presented during the scheduled hearing, the Commissioner will decide if it is “more likely than not” that the claimed act of abuse occurred.
The standard of “Preponderance of the Evidence” is different from a criminal trial where the Defendant must be found guilty by a much higher burden of proof –“Beyond a Reasonable Doubt.” The legal standard is different with an Order of Protection because the case is brought in a civil court, whereas a criminal case is brought in criminal court. Additionally, although the court uses the term “permanent,“ a “permanent” order of protection generally only extends the Temporary Order for a period of six months to one year – which is a bit shorter than the two-year Order of Protection that was recently entered against Johnny Manziel.
Similar to Manziel, an Order of Protection that is issued in New Mexico can also take away one’s right to own or possess a gun while the Order is in effect.
According to federal law it is illegal to possess a firearm while you are subject to a restraining order that meets the following conditions: (1) The Order was issued after you had notice, and an opportunity to be heard; (2) The Order restrains you from harassing, stalking, or threatening an intimate partner; and (3) The Order includes a judge (or hearing officer’s) finding that you are a threat to the safety of an intimate partner, or you are prohibited from the use of force against an intimate partner. See 18 U.S.C. § 922(g)(8). In other words, under federal law, you cannot possess or own a gun if you are currently subject to an Order of Protection that meets the requirements listed above.
An Order of Protection being entered carries a number of other potential drawbacks. These drawbacks include employment consequences resulting from the loss of special clearances and the right to bear arms. Additional burdens include potential evictions from rental units, inability to receive federal loans, and issues with Custody and Time-sharing arrangements based on a possible “substantial and material change in circumstances.”
Violation of Restraining Orders are treated harshly in New Mexico. The first violation is a full misdemeanor that is punishable by up to 364 days in jail and/or a maximum fine of $1,000.
A second violation requires one to serve a minimum of 72 consecutive hours in jail. Additionally, this sentence cannot be suspended, deferred or taken under advisement.
A third violation is a felony level offense, with a maximum sentence of three years in prison.
