258E Order – Harassment Restraining Order

• Steven Topazio wrote this June 5, 2023 at 3:09 pm

The client received notice of a hearing on a 258E Order – Harassment Restraining Order, which a judge issued without the defendant’s presence. However the court scheduled a hearing within 10 days and the defendant, after being notified that he has the right to oppose the order in court, hired Attorney Topazio to represent him.

The Harassment Prevention Law, commonly called Chapter 258E, is there to protect you against someone who is harassing, stalking or sexually assaulting you, no matter what your relationship with them might be, if you can establish three separate events where you are put in fear of imminent bodily harm.

The client, a property manager of a housing complex, had been arguing with a tenant who was illegally parking in the property’s parking lot. The tenant had been warned several times not to park in the parking lot without the proper parking permit as the lot was patrolled by a tow company that would tow cars that did not display the proper parking permit. When the tenant parked a rental car in the lot, it was towed, and she accused the property manager of harassing her. A verbal altercation between the parties followed where harsh unflattering words were spoken by the client, but no threats were made.

Verdict: At the hearing Attorney Topazio elicited testimony that despite the towing, his client never placed the petitioner in fear of imminent bodily harm and pointed out to the Judge that although offensive, unflattering comments may have been said, they were not sufficient basis to issue a 258E Order for Harassment Prevention. Attorney Topazio cited case law which stated, “The definition of ‘harassment’ in c. 258E was crafted by the Legislature to ‘exclude constitutionally protected speech,’ . . . and to limit the categories of constitutionally unprotected speech that may qualify as ‘harassment’ to two: ‘fighting words’ and ‘true threats.'” The court agreed and vacated the 258E Order.