The debate over protection orders

It was streamlined for victims; now some think burden of proof too low

Virginia Black
South Bend Tribune

A man who was shot in a work dispute learned a few days later that a judge granted a protection order against him -- requested by the man who shot him.

A father already chafing against restricted visitation with his toddler daughter after an argument with the mother of his child cried foul when, a few months later, he was slapped with what he calls an unfair protection order.

A young woman who told police her car was vandalized by an ex-boyfriend was surprised when a letter arrived in the mail, telling her a protection order had been granted against her. It was sought by the ex's new girlfriend.

"I just feel like you shouldn't just be able to say whatever you want," the woman said, "and have something like this on your record."

A legal remedy meant to help protect those afraid for their safety -- the protection order -- has become easier to seek and more quickly available to law enforcement. Such an order forbids one person from harassing, stalking or going near another.

Over the last decade, the process has been tweaked to help victims more easily file petitions, for free, requesting the civil-court documents that can save lives, authorities say.

But others contend the relatively low burden of proof needed for a judge to grant a protection order without even a court hearing is unfair and could potentially affect job seekers, their names online for all to see, even if an order is ultimately dismissed.

The 2012 brutal death of Mishawaka resident Trina Winston -- whose husband had a history of domestic violence against her -- led to an uptick of petitions that year, to 1,119.

Otherwise, St. Joseph County's numbers of granted orders in the last five years have teetered between 912 in 2009 and 1,037 in 2013.

More than 87,000 active orders are in the Indiana registry. The numbers of new petitions statewide has grown from 60,548 in 2009 to 68,339 in 2013.

Indiana law allows a judge to grant a protection order petition without a hearing -- called "ex parte," St. Joseph Circuit Court Judge Michael Gotsch explains. He or she can also deny the petition outright based on merit, or schedule a hearing.

A little more than half the time, the petitions are granted ex parte. They're dismissed about 5 percent of the time, he guesses, and hearings are ordered in the rest.

"I don't think anybody is doing these in a cavalier manner," Gotsch said. "We understand the ramifications of what happens here. We have to make sure the least of us is protected."

'They give these out like candy'

But some people against whom the orders were granted ex parte argue they should have had their day in court first.

  • Brandon Opaczewski of South Bend was involved in a dispute with the mother of his baby in February 2013 in which police were called. According to police and court records, the 35-year-old left their home that night and was not arrested.

But the Department of Child Services opened a case. And although Opaczewski told a reporter he disagrees with DCS' characterization of events, he was nonetheless participating in counseling and supervised visitation of his daughter.

In September, his former girlfriend was granted a protection order ex parte. Opaczewski said he did not know of it until he received a copy in the mail.

He and his attorney contested the order in November, and a judge ultimately dismissed it. But the young man's name is still in the state Protection Order Registry online, marked "dismissed."

Opaczewski was applying for a spot in the next training class for Clay Fire Territory and worried the protection order would bar his entry. He was accepted, but he worries that what he considers an untrue allegation will affect future employment.

  • A 25-year-old South Bend woman stood in Magistrate Larry Ambler's Mishawaka courtroom in October to protest a protection order.

She asked that The Tribune not use her name because she worries it would hurt her chances at jobs.

She told the judge the woman who was granted the order ex parte was an ex-boyfriend's new girlfriend, whom she did not even know. The other woman did not show up for a hearing the defendant requested.

"I don't think it should ever have been in effect," she told Ambler. "All of this happened over a guy. This was the first time I ever saw her."

The young woman told the judge she's in nursing school and ready to look for work in local hospitals, which she's afraid won't consider her with a protection order on her record. Ambler dismissed the order.

  • The scene in Magistrate Andre Gammage's courtroom in December was more unusual than most: William Trozzy of Mishawaka stood before the judge on crutches, his right knee bandaged.

A man who had been granted a protection order ex parte -- standing to Trozzy's left -- was the man who, even by his own account, had shot Trozzy.

Trozzy told Gammage he disputed the order and, instead, asked for a protection order against the man who shot him. (The Tribune is not naming the shooter because he has not been charged with a crime.)

A protection order can carry a variety of conditions, but they are usually in effect for two years and bar those who are named from owning a weapon.

"He shot me, he knows where I live, he knows where I drop my kids off at school," Trozzy told the judge.

But the protection order was not dismissed, and Trozzy was advised he could file his own petition against the other man.

Trozzy told a reporter and police he had done work for the man several times before and had trouble collecting his pay. So when the two were arguing over pay on Nov. 17, he said, the other man pulled out a gun.

"He says, 'I will shoot you. I will kill you right here!'" Trozzy said.

As Trozzy was holding up his hands and backing up, he said, he was shot in the knee. The other man climbed in his vehicle and drove away.

South Bend police spokesman Capt. Phil Trent said the other man told police he felt threatened and shot Trozzy in self-defense. Once the detective finishes investigating, his report will be sent to the prosecutor to determine criminal charges, if any. A judge could then issue a no-contact order between the two men.

Meanwhile, the other man requested a protection order against Trozzy, stamped two days after the shooting. He alleged Trozzy had stalked him -- the only exception to the requirement that protection orders involve intimate relationships -- but the two instances he listed on the form were not claims of stalking.

In July of last year, he wrote on the form, he had asked Trozzy about work he'd been paid for that he had not done. Trozzy became loud and upset, so the man stopped giving him work.

Then he listed the November incident, not explaining on the form or in court why he had relented and given Trozzy more work later. Asked by a reporter, the man said, "I believe in giving people second chances."

Trozzy said he lost work because of his injury, and an attorney is working with him to fight the protection order and resolve the case to cover lost wages and medical costs.

"They give these things out like candy, and this guy shot me," the 47-year-old said. "It's a crazy situation."

Gammage, the magistrate, is barred by state law from talking about specific cases. But he said about protection orders in general, "We all take these matters seriously."

'A big deal'

Mary Butiste-Jones can, without much prodding, reel off any number of disturbing situations she has seen in her more than two decades as an attorney who focuses on domestic-violence family law.

She tells of a man who strangled his children and his wife. And the guy who beat and confined a woman, holding a gun to her head. And the one who raped his wife in front of their child.

Without a doubt, she said, protection orders save lives; Indiana's moves in the last 10 years to make the forms available on the Internet to be easily filed and quickly granted -- often before any criminal action -- are steps in the right direction.

"These are the times you want the system to work," said Butiste-Jones, who works with Indiana Legal Services and has an office in the Family Justice Center to help victims. "We're not talking about frivolous things."

She acknowledges that sometimes even abusers petition for protection orders as a way to play the victim or still try to exert control, but she believes those are granted infrequently.

Butiste-Jones and Judge Gotsch point out that, like in other civil cases, a protection order need only be based on whether an allegation is more likely true than not -- not beyond a reasonable doubt, as with criminal cases.

"It's up to the judge to determine: Who do I believe?'" Butiste-Jones said. "'And what's the possible consequence if I don't grant this?'"

South Bend attorney Vince Campiti, who represents Opaczewski in his DCS case and argued on his behalf in dismissing the protection order, understands the dilemma.

Sometimes, he said, a protection order seems to be a sort of "back-door custody petition" in divorce or paternity cases. "All you have to do is put down the most egregious things you can think of."

Yet "it's clear, at least in this county, the court errs on the side of granting the protective order for the safety of the person alleging the conduct," Campiti said. "And I can't say that's wrong."

SBPD's Trent said police have noted that swinging pendulum, too. And he points out the orders -- even if they're eventually dismissed -- may linger online well into the future.

When the department is interviewing a job candidate, Trent said, interviewers offer a chance for explanation if a protection order is in a candidate's background.

A growing number of people coming to police for a background check to take to a potential employer are surprised and unhappy to see a protection order listed.

"This piece of paper is rearing its ugly head when, in fact, it was found to be completely unfounded," he said. "There needs to be some re-education for hiring departments and HRs, that just because there exists a protection order does not mean it's been thoroughly vetted."

St. Joseph County police spokesman Lt. Matt Blank said protection orders are automatically entered into the Indiana State Police and federal NCIC crime databases, and employers could possibility request that information. But most employment background checks do not include the more in-depth and investigatory NCIC information.

Elizabeth Osborn, a spokeswoman for the Indiana Supreme Court, said in an email, "If there is an error in a record or if a judge determines that a record should be removed from the system, the judge can send an order ... directing the Division to remove the information from the database."

Yet to date, she said last week, the Protection Order Registry has received only two orders for removal since the registry was mandated in 2009.

New rules passed last year to allow expungements of certain low-level criminal convictions are not clear on how that might affect orders from the protection registry, Gotsch said.

"The legislature should make some provisions" for sealing such records or expunging them, he said.

Opaczewski, for his part, thinks merely dismissing a protection order, yet leaving it in the registry, is not enough.

"It should be wiped out," he said. "It should be a big deal. It could change somebody's life."


Brandon Opaczewski shows his daughter one of her favorite toys while shopping recently in South Bend. Opaczewski sees his daughter about once a week. (SBT Photo/SANTIAGO FLORES)
William Trozzy (SBT Photo/VIRGINIA BLACK)