Is the recipient of a restraining order protected by the anti-SLAPP statute when she contacts police to report her concern that the restraining order has been violated? What if it turns out that there was no violation, and charges were filed erroneously and later dismissed? In a recent case, the Massachusetts Appeals Court decided this issue.
In 1997, a few years after obtaining a divorce, the ex-wife sought and received a restraining order against her ex-husband. It prohibited the ex-husband from contacting the ex-wife in any manner. The only exception was for notifications of court proceedings by mail, by sheriff, or through other means. The ex-husband unsuccessfully sought to have that order modified or vacated on several occasions. In 2014, the ex-wife reported to the New Bedford police that the ex-husband contacted her by mail in violation of the restraining order. Upon investigating, New Bedford police arrested the ex-husband and charged him with criminally violating the order.
The court later found no evidence of a violation of the restraining order, and it dismissed the charges. The ex-husband defended by noting that his mailing to the ex-wife (the basis of the purported violation) actually contained court filings, which the exception to the restraining order covered. The ex-wife noted that the court filings bore no official court stamp; by contrast, all other filings previously filed by the ex-husband had born a court stamp. The ex-wife called the court to confirm that the filings were official; the clerk told her that no such filings existed. The investigating officer also called and received the same information.
As it turned out, the ex-husband did file those papers with the court. The court personnel misplaced the filings and didn’t docket them until after these events transpired. As a result, the filing of the criminal charges occurred with no proven violation.
After the dismissal of the criminal charges, the ex-husband in turn filed a civil action against the ex-wife; he claimed that she caused his arrest without probable cause. The ex-wife filed a motion to dismiss under the Massachusetts anti-SLAPP statute; she claimed that the lawsuit was based entirely on her protected petitioning activity.
The Massachusetts anti-SLAPP statute provides a special motion to dismiss for parties who face a lawsuit based on their protected petitioning activities. “When a person reports suspected criminal activity to the police, she is engaging in constitutionally-based petitioning activity for purposes of [the anti-SLAPP statute,]” the Court explained. In this case, the statute protects the ex-wife’s activities in reporting the suspected criminal activity to police.
“[W]e conclude that [the ex-wife’s] conduct in reporting her concern to the police was petitioning activity under the anti-SLAPP statute and, in the circumstances of this case, the retaliatory civil suit filed against her was based entirely on her petitioning activity and therefore should have been dismissed.”
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