Is This Some Solstice Fool's Joke?

The Santa Fe New Mexican reports:

Late last week, a Santa Fe District Court judge signed a temporary restraining order against talk-show host David Letterman alleging [sic] he has tormented a city resident for more than 10 years by using code words on his television program. . . .

In the application for the restraining order, which was filed Thursday, Nestler alleges that between May 1994 and now, Letterman forced her to go bankrupt and caused her “mental cruelty” and “sleep deprivation.”

Nestler . . . requested that Letterman, who tapes his show in New York, stay at least 3 yards from her and that he not “think of me, and release me from his mental harassment and hammering,” according to the application.

Nestler’s application was accompanied by a typed, six-page, double-spaced letter in which she said Letterman used code words, gestures and “eye expressions” to convey his desire to marry her and train her as his co-host. Her story also involves Regis Philbin, Kathie Lee Gifford and Kelsey Grammer, whom Nestler says either supported or attempted to thwart her “relationship” with Letterman, according to the letter.

Nestler wrote that she began sending Letterman “thoughts of love” after the Late Show With David Letterman began on CBS in 1993.

“Dave responded to my thoughts of love, and, on his show, in code words & obvious indications through jestures (sic) and eye expressions, he asked me to come east,” she wrote.

Then, three days before Thanksgiving in 1993, Letterman asked Nestler to be his wife during a televised “teaser” for his show when he said, “Marry me Oprah,” Nestler wrote in the letter.

“Oprah had become my first of many code names,” she wrote. “... (A)s time passed, the code-vocabulary increased & changed, but in the beginning things like ‘C’ on baseball caps referred to me, and specific messages through songs sung by his guests, were the beginnings of what became an elaborate means of communication between he and myself.” . . .

Judge Sanchez signed the temporary restraining order Thursday afternoon and set the case to be heard Jan. 12, according to court documents. In a phone interview Tuesday, Sanchez said he couldn’t comment on the order.

When asked if he might have made a mistake, Sanchez said no. He also said he had read Nestler’s application.

In his motion asking Sanchez to quash the order, Rogers said the District Court lacks jurisdiction over Letterman, Nestler never served Letterman with the necessary restraining-order papers, and she didn’t meet procedural requirements for issuing a temporary restraining order. . . .

I'm trying to get a copy of the TRO — if you have it and can e-mail it to me, I'd be very much obliged — but it sounds to me like either the newspaper or the judge got this badly, ridiculously wrong. (In some situations, judges rule in favor of plaintiffs with strange theories when the defendant fails to show up, and the defendant wins by default; but to my knowledge they have to exercise some supervisory power, especially when the defendant wasn't served, whether because of the plaintiff's omission or because the proceeding is supposed to be ex parte, i.e., without the defendant's participation.)

Thanks to Tom Elia (The New Editor) for the pointer.

UPDATE: Thanks to our indispensable law library, I've now gotten a copy of the crazy application and of the temporary restraining order, which I've posted on this site. The TRO is pretty boilerplate, barring Letterman from "threaten[ing], harm[ing], alarm[ing] or annoy[ing]" Nestler -- let's hope that doesn't implicitly bar him from using mysterious "code words" on his show -- ordering him to stay at least 100 yards away from Nestler, her residence, and her workplace, ordering him not to telephone her or contact her, and ordering him not to block her in public places or roads.

In practice, I doubt that it will affect Letterman much, since I doubt he had many plans to go to Santa Fe or to get in touch with this woman. But as a matter of principle, it's pretty outrageous (though I'm sure not unprecedented): Based on a patently frivolous allegation, and without any remotely conceivable justification, Letterman has his liberty restrained.

It also casts doubt either on the judge's competence or on his candor. Either the judge read this carefully and thinks the order is well-founded, in which case he isn't a very smart judge. Or he didn't read this carefully, and on reflection must realize that he's made a mistake, in which case his statement (assuming that the newspaper accurately paraphrased them) that he didn't make a mistake and that he read Nestler's application seems less than candid.

Related Posts (on one page):

  1. Is it Illegal for David Letterman to Own a Gun?
  2. Is This Some Solstice Fool's Joke?
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Is it Illegal for David Letterman to Own a Gun?

Now that David Letterman is the subject of a restraining order barring him from harming a nutty lady who think he is sending her secret signals, the question arises of whether it is still lawful for Letterman to purchase or possess firearms. The relevant federal law is 18 U.S.C. § 922(d)(8). It prohibits gun possession (even holding someone else's gun momentarily) by "prohibited persons." Partly in response to the O.J. Simpson murder case (in which the victim was killed with a knife), Congress cracked down on gun possession by people subject to domestic violence TROs. Thanks to the 1994 Clinton crime bill, federal law now bans gun possession by any person who:

is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child,...
Letterman would seem to fall squarely within the prohibition. The TRO states that must not "harm" or "threaten" the plaintiff. Likewise, Letterman is ordered not to block plaintiff in public places or roads. The order against harming the plaintiff would seem to be encompassed within the statutory language about any order against "engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury."

The second question is whether Letterman is an "intimate partner" of the complainant. According to the motion for the TRO--which the judge apparently considered credible enough to merit issuance of a TRO--Letterman has asked the complainant to marry him, and communicates with her constantly. The complainant alleges a long-standing relationship, with frequent communication, and Letterman being so intimate with her as to demand that she shut off all contact with other people. Such conduct, if it really took place, could arguably make Letterman an "intimate partner" of the complainant.

The federal gun prohibition statute contains an exception:
this paragraph shall only apply to a court order that - (A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
The TRO does not explicitly state that it is issued ex parte, but it does contain a finding that no notice to the defendant is required. The application for the TRO contains no evidence of service. So if Letterman never was properly served with the application, he's off the hook, and can still possess a gun. If we hypothesize that Letterman had been properly served (if that Letterman fails to comply with the court order to appear at the hearing in 10 days, to determine whether to make the TRO permanent, and the court does make the order permanent), there is one other statutory requirement. The court order must be one which:

(B)(i) includes a finding that such person represents credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;
The TRO contains no finding that Letterman is a threat to the complainant, so prong (i) does not apply. The TRO does, however, prohibit Letterman from harming or threatening the complainant, which would seem to fall within prong (ii), which requires that the court order explicitly prohibit physical force or the threat thereof against the intimate partner.

Accordingly, if the complainant has simply bothered to hire a New York process server to serve Letterman with a copy of the complaint, it would now be illegal for him to possess a firearm. If the court properly sents Letterman an order to appear at the hearing for making the TRO permanent, and Letterman fails to do so, and the court makes the restraining order permanent, then Letterman will be committing a federal felony if he every holds gun in his hands.

For years the feminist community has been exhorting the authorities always to "believe the victim" who complains of intimate partner abuse. Clearly their message has been heard in the First Judicial District Court of the state of New Mexico.

Related Posts (on one page):

  1. Is it Illegal for David Letterman to Own a Gun?
  2. Is This Some Solstice Fool's Joke?
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