Temporary Restraining Orders and Preliminary Injunctions
from No Compromise Issue 19
 

A Basic Primer by Shannon R. Keith, Esq.

Introduction

All 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 state’s specific laws on this issue.

The Beginning

A 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 Plaintiff’s 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….

Let us say, for example, that a group of animal rights activists is protesting Macy’s fur salon outside of Macy’s, 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 mall’s 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 Injunction.

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).

The Procedure

Once the Judge grants the TRO, all parties must be served with the TRO for it to take effect against them in particular.

Activists 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?

1. Determine 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.

2. 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

The 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 Macy’s, 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 Macy’s.” Okay, so don’t 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 don’t involve entering mall property.

Obtain a Lawyer

Unfortunately, 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 doesn’t 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.

The Settlement

One 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 Plaintiff’s case against you, and will aide you in making the best decision, not just for yourself, but for future activists as well.

One very 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!

Conclusion

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.

Also, 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 paperwork.

Be smart. Do your legal homework. And never give up the fight.

Remember: 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 aren’t intimidated by fancy law firms and paperwork, these corporations have no power.

All State Resources
» http://www.municode.com/Resources/online_codes.asp (all states’ municipal code resources)
» http://lawcrawler.findlaw.com/scripts/lc.pl?entry=state+statutes&sites=findlaw (all states, state statutes, lawyers and other state resources)
» http://www.law.cornell.edu/ (federal and constitutional law)
» http://www.lawsource.com/also/ (all states-best resource for state codes, statutes, local laws and state constitution)
» http://www.legal.gsa.gov/ (federal law)
» http://www.lexisone.com/legalresearch/legalguide/states/states_resources_index.htm (this link contains rules of court and forms for all states)
» http://law.freeadvice.com/resources/statelaws.htm
(all states’ resources, including state courts, state statutes, small claims court)