Restraining David Letterman

Colleen Nestler, a resident of Santa Fe, N.M., alleges that late night TV host David Letterman has communicated with her in coded words in his broadcasts, has tormented her and driven her into bankruptcy, and has promised to marry her. So far, nothing terribly unusual as regards the problems celebrities face from fixated fans; Letterman himself long endured the attentions of a female stalker suffering from mental illness, Margaret Mary Ray, who repeatedly was arrested for entering Letterman’s property. This time, however, the law has taken a different attitude: according to the Santa Fe New Mexican, Judge Daniel Sanchez of the district court in Santa Fe late last week granted Ms. Nestler a temporary restraining order against Letterman, which the entertainer’s lawyers are now attempting to get lifted. Ms. Nestler’s application for the order

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….

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

(Jason Auslander, “Letterman lawyers: End Santa Fe claim”, Santa Fe New Mexican, Dec. 21) Discussion: Volokh, TalkLeft, and a hundred others. On judges’ over-readiness to grant restraining orders in cases of alleged domestic violence and its threat, see this set of links. Updates Dec. 23 (discussion); Jan. 2 (judge lifts order).

12 Comments

  • Unfortunately, this is an all too often occurrence. A colleague of mine defended a case where the plaintiff’s claims clearly indicated she suffered from paranoid delusions; she alleged the defendant engaged in conduct that was not possible under the laws of physics. The real problem lies with the failure to hold some kind of hearing for the request of a temporary order; even though the hearing is ex parte, at least the court would be able to assess the credibility and sanity of the plaintiff.

  • This is indeed rather silly, but, considering that David Letterman is never within 3 yards of her anyway, does not think of her anyway (or at least, didn’t before this…), and does not mentally harass or hammer her, I’d say, basically, no harm, no foul. It could well have been the judges intent to help her with her mental problems…

    It would certainly have been polite to actually contact David Letterman about it, first, though, and and ask his permission to grant something so silly.

    Of course, it does illustrate some of the larger problems with restraining orders. Unfortunately, they are so poorly enforced as be meaningless, anyway, except in cases where they don’t matter and/or are frivolous to begin with (situations where the “victim” could possibly sue the REAL victim for violating that restraining order, for example, in which case, usually, it should not have been granted in the first place).

  • This case illustrates that judges just rubber-stamp restraining order requests in violation of due process.

    Frivolous restraining orders aren’t harmless or meaningless — they have terrible consequences in child custody and other divorce-related litigation brought by the false accuser against the innocent accused.

    And loads of restraining orders are based on false allegations.

    And legal rights are permanently affected by restraining orders. For example, federal law bans objects of restraining orders from possessing long-held firearms, meaning a falsely accused hunter or security guard has to give up his guns and lose thousands of dollars worth of property.

    This patent abuse of process in the Letterman case is typical of how frivolous domestic
    violence claims are upheld by cowardly judges.

    Most judges, desiring to appear sensitive to domestic violence victims,
    grant more than 99 percent of all temporary restraining orders that are filed. (And it costs nothing to seek a domestic violence TRO, unlike
    every other kind of civil process, which requires a filing fee).

    They’re terrified that in the freak event that they deny a poorly-supported TRO motion, and the defendant then goes nuts in response to the TRO motion and kills the complainant, they’ll be
    demonized on TV and in the press or even, in rare cases, removed from
    the bench for “insensitivity.”

    Domestic violence TRO’s are granted without any opportunity for the
    innocent accused to tell his or her side of the story.

    Such TRO’s have been called the “poor woman’s divorce” because they
    enable the wife to summarily kick out her husband and gain control of the house and family car without even going through the procedural
    safeguards needed for a divorce.

    I myself have talked to men who were wheelchair bound or otherwise physically disabled from posing much risk of harm who were falsely
    accused and then made subject to ex parte domestic violence TROs.

    This episode reminds me of Tonya Harding. She was previously convicted of a
    violent felony for conspiring to attack a figure-skating rival. And she was previously also charged with domestic violence herself.

    Yet she managed to get her injured boyfriend arrested for domestic violence after first telling 911 operators falsely that she was beaten by masked intruders and then admitting that story was false and instead changing her story to accuse her boyfriend.

    The prosecutors believed her, despite her own conceded initial lie
    about the very incident question, and history of felonious and domestic violence, and charged the boyfriend despite his denials.

    There’s an awful lot of sex bias in handling domestic violence cases,
    almost always against the male. Women who kill their husbands without
    provocation get only 7 years, according to the federal Bureau of
    Justice Statistics, compared to 17 years for men who kill their wives.

    For evidence of the bias against men, see the statistics cited in the
    amicus briefs in U.S. v. Morrison, 529 U.S. 598 (2000) filed by the
    Independent Women’s Forum and Women’s Freedom Network.

    (I am a lawyer, but not a divorce lawyer. I should not have to point this out, but since you might otherwise wonder, I have never been accused of domestic violence, nor have I been divorced).

    Hans Bader
    202-331-2278

  • “And legal rights are permanently affected by restraining orders. For example, federal law bans objects of restraining orders from possessing long-held firearms, meaning a falsely accused hunter or security guard has to give up his guns and lose thousands of dollars worth of property.”

    If that’s true, then I completely retract my earlier statement, and in fact, I would view this as the singular greatest travesty in American justice of which I am aware.

    One can be denied one’s property and Constitutionally guaranteed rights with NO process (much less “due” process)?!? Please tell me that’s not so!

  • You get no opportunity to tell your side of the story, and thus effectively get no process, before being kicked out of your house by an ex parte restraining order.

    But with respect to firearms, it’s not NO process, but rather, close to no process.

    I should have clarified that under federal law, people subjected to state court restraining orders typically only lose the right to possess firearms if they were given the opportunity in state court for a hearing before such an order was issued or continued.

    Not that a hearing is very meaningful. Judge Skillman of the New Jersey Appellate Division has repeatedly written opinions criticizing the prevalent practice of New Jersey trial judges allowing complainants to bring a fresh set of brand-new domestic violence allegations to the hearing after the prior allegations raised in the original, ex parte petition for a temporary restraining order, which was issued prior to the hearing, turn out to be baseless.

    Amazingly, judges grant such restraining orders, even when the new allegations are inconsistent with the ones used to obtain a temporary, emergency, ex parte restraining order.

    So even with a hearing, it’s often trial by ambush, with no real opportunity to defend oneself, for the defendant.

    If a defendant does win an appeal on the due process issue, his “victory” is often a pyrrhic one. After reversal, the case is just remanded back to the very same trial judge, who, displeased by the challenge to his decision and ensuing reversal, often comes up with a new rationalization for the same restraining order.

  • I’m sorry, but Dave has been known for traffic tickets, etc., and whenever he is pulled over, the officer will have to bring up the fact that ‘there is/was a restraining order against him??
    I’m sorry,.. I don’t have the knowledge, nor the speech of such legal-ease,..
    I just hope Paul & he “tear this one up” tonite,… but only by ‘coded words’.
    And the judge,…only by ‘mental harrassment’.

  • Restraining Letterman, frivolously

    From “Vic” in the Volokh comments, on the furor over that temporary restraining order against David Letterman [typos cleaned up]:I think this illustrates the problem with trying to enumerate how many lawsuits are frivolous. Most…

  • Hans Bader, I AM a family law attorney and you accurately assessed the problems with these restraining/protective orders. All too often, restraining orders are used a tactical weapon in custody and divorce cases. Unfortuantely, I’ve had to advise my clients in contentious custody cases to prepare for the real possibility that the other parent will file a petition for a protective order, as this has come to fruition too many times.

    As to the due process argument, appellate courts have held that so long as a final, evidentiary hearing is held within a specific time frame (at least in one state its THIRTY days and the defendant must request it) the due process violation is so brief as to be de minimus. I’m sure this gives great comfort to a defendant who has been evicted from his/her home or a parent who is prohibited from seeing or contacting his/her children until the final hearing.

    As to enforcement, I disagree with Deoxy’s comment that its meaningless. If a plaintiff alleges that a defendant has violated the order, then the defendant is subject to quasi-criminal contempt proceedings; he/she can be arrested and jailed pending a hearing and, if found guilty, incarcerated. On the other hand, if a plaintiff contacts the defendant, there are no consequences because the order only restrains the defendant.

    While the state has a legitimate interest in protecting its citizens against domestic violence, the system itself is being abused.

  • Certainly the woman is crazy, but is there any truth to her claim?

    What the general public does not realize, is that all broadcast stations and many specific television shows are playing the Mooks and shearing the Sheeple.

    Every broadcast network tries to collect as much information as possible from the public, about its programs. There are many ways that this is done. Numerous television shows will also separately collect, analyze and use feedback from the public. Every word of every letter or email sent to a television station or program is scrutinized. Details as to likes and dislikes are gleaned, and the information is used to provide direction, as well as develop new material. Personal anecdotes from the viewers are captured and the core messages of these mini stories are likely to be incorporated into the show.

    This is referred to as reflecting. Reflecting back to the fans, that which they divulge in their communiqués. It is a strategy very similar to the ‘cold reading’ technique performed by tarot card readers. The Mark is not aware of how much they are revealing, or to what purpose their entanglement might be used.

    There are practical reasons for generating and perpetuating communications with viewers. It is difficult to know public sentiment while preoccupied with a daily show. Anything the public has to say may be used in creating content. It is difficult to continually come up with new ideas and things to say without regular input from the audience, as well as other sources. It is easy to become stale in a relatively brief period of time and the ratings will immediately reflect it.

    However the application of such practices can and does lead to collateral damage. The Mark or Mook is being lead-on. There are ample teasers in the form of buzzwords, gestures and visuals which are intended to excite the interested person or persons. Instigation, antagonism and other forms of provocation are often used to whip up the target. Taking their cue from ubiquitous good cop bad cop scenes, the program creators push whatever buttons they can detect.

    Creating conflict between a show and individuals or certain groups or other shows is all part of hightening the drama. It contributes to creating a sense of edginess which translates into ratings and dollars. The dance they dance can be dangerous for mentally unstable individuals, from within the viewing public.

    The cast members and writers of sophisticated daily television programs share ideas and information. They collaborate. Writers who work for multiple programs bring with them the knowledge and ideas generated by their other gigs. The friendships that develop among members of different shows, mostly on the same network, are used to assist each other in various ways, such as promoting each other’s projects and programs and playing the Mooks.

    It is all part of creating buzz, and it is easy for the dramatis personae and crew to transgress. The heady buzz created in the pursuit of ratings and dollars makes it easy to break ethical standards. Unfortunately for an unsuspecting few, the fantasy of television can become their reality and the result is devastating. The only real question that remains is whether the network programs are culpable, or not.

  • Update: judge lifts Letterman restraining order

    New Mexico state judge Daniel Sanchez last Tuesday agreed to a request by David Letterman’s lawyers to lift a restraining order previously entered on behalf of a Santa Fe woman who had accused the TV…

  • Kasaa – if you think any of that is applicable to this woman, you have problems almost as bad as hers.

    And my comment on “enforcement” earlier was in regards to how effective restraining orders are in actually preventing violence… that being “completely and utterly useless”.

    “Restraining orders” are only good to beat up on someone who is willing to follow them. A person who is actually violent and willing to cause harm to someone (itself already quite illegal) isn’t going to be “restrained” by a piece of paper. The whole concept is just stupid to begin with, not to mention its actual application and usage these days.

  • The Letterman case is a typical example of the how domestic violence laws are used to get a jump on divorce litigation.
    Unfortunately the media coverage of this event has been nonexistant, while we clammer about our president invading our privacy rights with the Patriot Act.
    These laws which govern Judicial policy regarding restraining orders is the Violence Against Women’s Act. This act is the most UnConstutional piece of law that was ever written in the US history.

    It carries further devastation then the terrorist attacks our country has sustained because it has taken its toal on the basic fabric of our society….:the family unit”

    In the name of protecting battered women these laws have been morphed into attributing domestic violence to any act or thought which the apparent victim feels is upsetting.

    These restraining orders are issued ex’parte (without the defendant present), with out proof required, without evidence or what most Americians understand as “probable cause”.

    There is no requirement that a judge find probable cause when issueing a domestic violence restraining order. So do not blame the Judges for the abuse of process that takes place by the thousands across the country every day.

    A judge has to make a finding of facts and provide a basis of law for the issuance of a restraining order, but not in the traditional sence. Since a feeling of the complaintant is the new legal basis and we cannot deny a women her feeling, then they must issue the restraining order.

    Just review the laws in your state and read what the women center advocates tell the general public.

    Most judges see through the abuse of process, but have no choice. The police also have no choice when called on a domestic matter. There does not have to be injury or altercation, just a proarrest policy mandated by our legislature that takes all the discression out of the hands of police officers. The VAWA was signed into law without our legislature knowing what effect it has on the Americian families.

    In retrospect the domestic violence laws have become a method of the legal professionals having full unlimited access to the family units net worth , all under the guise of halping battered women.

    In order for this to change we must make the public aware of how these laws are being misused and prosecute the parties who make false accusations for financial gain.

    We as Americians must realize that the current domestic violence laws do not protect people, but only make most situations worse for the families. We already have laws against assault, so why do we really need domestic violence laws?