In August 2009, Herschel Shirley was found guilty of violating a civil protection order taken out by his ex-girlfriend, Tashi Brown, by trying to reach her by phone. He appealed, arguing that Brown had already agreed to meet with him in an attempt to reconcile, and that the trial court should have considered her consent as a defense.
The District of Columbia Court of Appeals ruled (PDF) against Shirley yesterday, finding that only the court can decide when a civil protection order is no longer in effect, regardless of what the parties involved may agree to or do.
The court noted that the civil protection order in this case stated in bold, capital letters that “ONLY THE COURT CAN CHANGE THIS ORDER.”
A District of Columbia Superior Court judge granted Brown a civil protection order in 2008, but the couple continued to try to “work things out,” according to the opinion. Brown then accused Shirley of becoming violent and threatening her on one occasion – an allegation Shirley denied – and of attempting to call and text her after they separated.
Shirley was found guilty of criminal contempt of the protection order for the attempts to call and text Brown; he was acquitted of the threat charge. On appeal, Shirley argued that because Brown had already agreed to meet and talk to him, any later communication couldn’t be in violation of the protection order.
The judges disagreed, writing that since the protection order explicitly noted that only the court could modify the terms, Brown couldn’t change it even if she wanted to without first going through the court.
The appellate judges wrote that while “it was a petitioner’s conduct that placed a respondent in technical violation of a stay-away order,” he was being held in contempt for calls and texts he made after, not the meeting itself.
“The evidence belies any theory that Brown foisted herself upon appellant without his consent and willing participation, as it was appellant who initiated the text message and telephone calls that underlie his contempt convictions,” the judges wrote.
Herschel’s lawyer, Washington solo practitioner Chantal Jean-Baptiste, said she is disappointed, but understood the court's desire to abide by its own policies.
"I think its unfortunate for individuals like Mr. Shirley who basically [are in] relationships that people try to work on. I think that complicates things somewhat, but I do understand the court’s reasoning," she said.
Ariel Waldman, senior counsel to the city's attorney general, said that his office is pleased with the ruling.
"OAG will continue to work to ensure that court-ordered protections for residents from stalking or harassing by others are enforced,” he said.
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