Guideline 3:04
General Laws c. 258E, § 9 requires that the judge review the defendant’s criminal history and history of civil restraining orders. The clerk’s office should also check the Warrant Management System.
If an ex parte order will be issued and the judge receives information from any source that an outstanding warrant exists against the defendant, the judge “shall [(1)] order that the appropriate law enforcement officials be notified,” (2) order that “any information regarding the defendant’s most recent whereabouts . . . be forwarded to such officials,” (3) “make a finding based on all of the circumstances, as to whether an imminent threat of bodily injury exists to the petitioner,” and (4) if such a threat is found to exist, “notify the appropriate law enforcement officials of such finding and such officials shall take all necessary actions to execute any such outstanding warrant as soon as is practicable.” G.L. c. 258E, § 9.
In all cases, judges should be mindful of safety concerns that may arise when attempting to serve the order on the defendant. For example, a defendant who may have access to firearms or who may have an alcohol or substance use disorder would be the type of information the police should be aware of in order to safely serve the order. If the judge becomes aware of such safety concerns, that information may be communicated to the police. This information could be noted on the Defendant Information Form that is sent with the order to the police. If a judge determines, based on the information available to the judge, that there is an imminent threat of bodily injury to the plaintiff, whether based on the nature of outstanding warrants alone, the nature of any outstanding warrants combined with the assertions of the party seeking the c. 258E order, or solely upon the assertions of the party, the judge should check the appropriate box and direct the clerk’s office, the victim witness advocate, or the district attorney’s office to notify the appropriate law enforcement officials of the situation and the circumstances that give rise to the imminent threat of bodily injury. Those officials would include, at a minimum, the police department that is responsible for serving the c. 258E order so that they can take necessary precautions when serving the order.
Probation departments are notified each day about the court activity of their probationers during the previous day. Therefore, each supervising probation officer should learn on the next court day about any c. 258E harassment prevention orders issued against their probationer and entered on the Court Activity Record Information (CARI) system. In situations of particular danger or urgency, however, it may be appropriate for the judge to order that the probation officer supervising a c. 258E defendant be notified immediately.
Commentary
The defendant’s criminal history and history of previous orders must be reviewed at the ex parte hearing for a variety of reasons. In addition to alerting the judge of outstanding warrants or other abuse or harassment prevention orders, this information is helpful in identifying situations in which the plaintiff or police may face a particularly heightened degree of danger.
The requirement that the judge notify the “appropriate law enforcement officials” about an outstanding warrant is triggered by the existence of any outstanding warrant. The “appropriate law enforcement officials” are, at a minimum, the police department to which the c. 258E order is sent for service. On the appropriate part of the order, the judge is to indicate whether or not there are outstanding warrants at the time the order issued, so that law enforcement officials can take all necessary actions to execute any such outstanding warrants as soon as practicable, as well as to safely serve the order.
Notice of the order to the probation department serves two purposes. First, the actions that constitute the basis for the c. 258E order may be sufficient to constitute a violation of the terms of the defendant’s probation. The supervising probation officer may wish to bring the allegations to the attention of the sentencing court, either by sending the defendant a notice of probation violation, or, in situations of particular danger, requesting an arrest warrant.
Second, the supervising probation department can sometimes assist the court in notifying a defendant of the issuance of the ex parte order by providing information regarding the most recent address or by notifying the court that the defendant will be in a particular court on a particular date. This is particularly useful in situations where the plaintiff does not know where the defendant can be served or when attempts at service have been unsuccessful.
It is important that an up-to-date copy of the defendant’s criminal record be obtained for each hearing; an old copy of the record may give inaccurate or incomplete information. The defendant’s criminal record should be returned to the defendant’s probation file. The printed copy of the defendant’s criminal record should not be placed in the case file.
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| Last updated: | October 20, 2025 |
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