states have different rules, statutes, codes and regulations. I am an animal rights
attorney in California and cannot give advice on out-of-state law. However, I
can give a basic outline of the process that goes on when activists are served
with restraining orders. Because the laws differ from state to state, I have attached
a list of legal links that will take you to your state so that you can look up
your states specific laws on this issue.
relatively new and popular way of trying to restrain freedom of speech and expression
is to serve activists with Temporary Restraining Orders, otherwise known as TROs.
We have seen this done to our brothers and sisters in the past by shopping malls,
laboratories, and insurance and investment groups.
The basic goal of the
Plaintiff (the person, group, company or corporation suing you) is to restrict
activists from exposing the truth about the Plaintiffs practices. This is
done quickly and surely by means of a Temporary Restraining Order. A TRO is an
emergency remedy of brief duration which may issue only in exceptional circumstances
and only until the trial court can hear arguments or evidence on the subject matter
of the controversy and otherwise determine what relief is appropriate. It is basically
an order which is issued to maintain the status quo pending a hearing on an application
for an injunction. An injunction is a court order prohibiting someone from doing
some specified act or commanding someone to undo something wrong. Generally, it
is a preventive and protective remedy aimed at future acts, and it is not intended
to redress past wrongs. When an injunction is issued against you, it means you
cannot do something for the specified time. An example would be if a mall got
the court to order a permanent injunction against you to restrict you from entering
mall property for the purposes of protesting. A permanent injunction is not really
permanent; it lasts three years. But, after three years, the complaining party
can re-apply for another one, and another one, and another one
us say, for example, that a group of animal rights activists is protesting Macys
fur salon outside of Macys, inside a shopping mall. The mall owners want
them to stop, so they have their lawyer draft a very simple document called an
Ex Parte Temporary Restraining Order and Order to Show Cause why a Preliminary
Injunction Should not Issue. This sounds really confusing, but all it really
means is that the mall wants to go to court immediately, without having to give
the activists the statutory notice; thus, they want an ex parte hearing.
All they have to do to go in ex parte is give the activists 24 hours notice or
reasonable notice that this is what they are doing. (The statutory notice, or
required period of notice that must be given before a court hearing, varies from
state to state. In California, for example, the defendant must be given notice
by 10:00 a.m. the previous court day.)
The malls representative will
then go to the hearing and ask the Judge that a TRO be granted against the activists
to restrain them from entering mall property, pending a hearing on the Preliminary
Almost always, a Judge will grant a TRO. Then, the Judge will
set a hearing date for the Preliminary Injunction. Alternatively, a lawsuit will
be served on the activists wherein the lawsuit will request Injunctive Relief
(i.e. that the activists be permanently restrained from entering mall property).
Once the Judge grants the TRO, all parties must be served
with the TRO for it to take effect against them in particular.
are typically served with TROs at demonstrations or in court. Sometimes, activists
are followed to their cars or followed home by process servers. Always beware
of people holding a bunch of paperwork. Do not respond if a suspicious individual
comes up to you and asks your name. If you respond to your name and he or she
begins to serve you, you are served, regardless of whether or not he or she throws
it at your feet or you run away.
Once you are served, you are bound by the
court order. Therefore, if you are restricted from entering mall property and
you do so anyway, you can be arrested and/or held in contempt of court. This is
not advisable. The best thing to do is to abide by the order until you can have
your day in court.
How Do You Have Your Day In Court?
whether or not you were given notice that there was to be a hearing on a TRO.
If you were not given notice, this is a serious concern for the court, unless,
of course, the absence of notice falls under some statutory exception, which may
vary from state to state. However, I would challenge the notice issue, so that
you can go back to court and be heard on why there should be no TRO.
Even if they improperly failed to give you notice and another hearing is held,
chances are good that the TRO will still be granted, so it could be a waste of
time. If time and money are major issues, I would wait until you are served with
the lawsuit and/or Preliminary Injunction.
3. File an Opposition to the
Preliminary Injunction, and if it is a lawsuit, Demurrer or do a Motion to Strike
before you answer. (you will have to consult an attorney or do some legal research
on your own to figure out how to do these; but they are relatively easy. With
a good sample to go from, anyone can do it)
Take Offensive Action Immediately
Plaintiffs (i.e. the mall) think they can scare activists away with silly, frivolous,
and unconstitutional TROs, Motions and lawsuits. What would be more frustrating
to them than for the activists to continue to protest Macys, while being
very careful not to violate the Restraining Order?
or example, the Order
will probably say something like, XYZ Animal Rights Group and anyone acting
in concert with them or as their agents or on their behalf may not enter mall
property for the purposes of protesting Macys. Okay, so dont
enter mall property, but stand on the sidewalk in front of the mall. There are
also plenty of other, very effective ways of protesting the store that dont
involve entering mall property.
Obtain a Lawyer
for fighting a TRO, you really need someone experienced at this type of thing.
A lawyer will be invaluable for protecting your rights. Although it doesnt
always work out perfectly, it is also good for the Plaintiff to know that you
have a legal team and that you wont back down.
of the first things the Plaintiff will do is try to settle the case with you.
They want to do this because their only intention in the first place was to get
you off of their property. Therefore, even though the lawsuit may say that they
are also seeking money damages, they could really care less about the money-they
know activists are poor!
They will tell you that they will drop the lawsuit
if you sign a settlement agreement whereby you agree not to enter the mall unless
you fill out the proper permits, etc.
This is the time when you need the
advice of a competent attorney. The attorney will be able to assess the validity
of the Plaintiffs case against you, and will aide you in making the best
decision, not just for yourself, but for future activists as well.
important thing to remember is that the mall wants you and whoever else may cause
trouble off of the mall property for good. So, they will word the settlement agreement
in such a way so as to restrain any other activists in the future from entering
as well, without succumbing to their unconstitutional provisions. (such as: an
individual or group, and anyone acting in concert with them, or on behalf of such
individual or group, or anyone associated with such individual or group, their
agents or assigns, can only enter mall property for the purposes of protesting
if they first apply for a permit to do so, which costs $50.00 and if it is granted
there can only be a maximum of three protestors who must stand at least 200 feet
away from the store, and cannot pass out flyers or leaflets.) Therefore,
if you sign any settlement agreement, you may be signing away future activists
right to protest-so be careful!
The major point
to keep in mind through all of this is to never back down! Almost always, these
lawsuits either get dropped, or a reasonable settlement is reached.
remember that this is a civil matter, not a criminal matter. Therefore, the tactics
that you might use in criminal court will not always work in civil court. For
example, in criminal court we like to bombard the state with tons of paperwork,
discovery requests, motions, phone calls, and anything else that will cause them
to think twice about continuing the case. However, this tactic does not work in
civil court when you are up against a major mall whose law firm is one of the
largest firms in that state. The paperwork they will do on that case is chump
change for them. They could care less if they have to go to court more or do more
Be smart. Do your legal homework. And never give up the fight.
This is not end of the world. Activists have been sued many times in the past
and are still just as, if not more, effective.
Keep in mind the RICO suit
brought by Stephens and HLS which was just dropped against SHAC and various other
animal rights organizations and individuals. It just goes to show that if you
arent intimidated by fancy law firms and paperwork, these corporations have
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