Santa and Restraining Orders

Today we got a very interesting question in the comments on our classic post on Santa Claus and the law.  We decided that the question was still fair game for this year since for many people it’s technically still the Christmas season.  Heck, if you’re Russian Orthodox then Christmas is still 12 days away, and for the 14,000 adherents of the Armenian Patriarchate of Jerusalem it’s 24 days away.  But enough about non-Gregorian calendars.  Let’s talk about getting a restraining order against Santa.

Ann writes:

Could an individual get a restraining order against Santa for stalking them? He does, after all, watch people all the time (both when awake and asleep), and keeps notes on them in the form of a list determining if they are good or bad in his estimation. And what would happen if one parent in the house got the peace order, but the other was helping the kids write their letters to Santa?

Restraining orders—also called protective orders in this context—can be issued in many kinds of cases, most commonly stalking or domestic violence.  We’re assuming that Santa’s relationship with Mrs. Claus is a peaceful one, so we’ll limit the discussion to stalking.

I. Criminal Stalking

A protective order is a civil remedy, but it’s often tied to criminal behavior.  New York law defines stalking in the fourth degree this way:

A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct:
1. is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted; or
2. causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person’s immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct; or
3. is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person’s place of employment or business, and the actor was previously clearly informed to cease that conduct.

We don’t think Santa’s behavior would meet this standard.  People couldn’t have a reasonable fear of material harm because Santa has an unbroken record of hundreds of years of peaceful activity.  It could be enough that he has actually caused material emotional harm to someone, except that the harm would have to be caused by contact or communication initiated by Santa.  The problem here is that Santa doesn’t initiate communication; instead people write letters to him.  Arguably he initiates indirect contact by entering people’s homes, but there’s no evidence that he enters homes where he is unwanted.  In fact, staying up late to ‘catch’ Santa is traditionally considered to cause him not to visit.  And of course visits from Santa Claus have rarely, if ever, caused someone to lose their job.

We won’t go into the details of the higher degrees of stalking, but suffice to say that if Santa doesn’t meet this standard then he wouldn’t meet the higher ones.

All is not lost for our hypothetical plaintiff, however.  As mentioned, a protective order is a civil remedy.  So what about a pure civil case with no underlying criminal behavior?

II. Civil Suits

As discussed in our prior post, Santa probably couldn’t be sued for trespass, but could he be sued for invasion of privacy?  When we say invasion of privacy what we really mean is the tort of intrusion.  The Restatement (Second) of Torts, gives three elements for intrusion: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff’s solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person.  See Mauri v. Smith, 324 Or. 476, 483 (1996) (applying the Restatement definition).  Santa definitely meets the first two elements: he intentionally intrudes, physically or otherwise, into a person’s private affairs or concerns.  It’s questionable whether this would be highly offensive to a reasonable person, however, since Santa’s been doing it for hundreds of years without too many complaints.

But let’s suppose the plaintiff was successful or that the plaintiff was able to get a preliminary injunction against Santa while the suit proceeded.  Such an injunction could include an order for Santa not to enter the plaintiff’s property or keep the plaintiff under observation.  If Santa violated the order then he could be found in contempt.

According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006).  The standard for a preliminary injunction is similar but requires that the party seeking the injunction have a substantial likelihood of success in the case.  As mentioned, we don’t think our hypothetical plaintiff has much chance of success, but let’s assume they pull it off somehow (maybe Santa fails to show up and they get a default judgment).

The first two factors are closely related.  An injury can be irreparable if retrospective relief (e.g. a payment of money damages) is inadequate and instead the injury requires ongoing, prospective relief.  In this case the plaintiff may have no monetary damages but still needs to prevent a recurrence of the injury.

The balance of the hardships could also weigh in the plaintiff’s favor.  Since Santa gives toys away for free, it’s very easy for him to give toys to one less person.  Heck, since suing Santa would probably be a one way ticket to the naughty list anyway, he probably wouldn’t have much of a complaint against an injunction, apart from the negative publicity.

The public interest is generally favored by enforcing privacy rights.  Arguably the public has an interest in policing morality (see, e.g., various stories about converting Scrooge-type characters to the Christmas spirit), but we doubt the courts would favor Santa’s “self-appointed arbiter of right and wrong” approach. So all four factors argue in favor of an injunction.

However, this four-factor analysis changes if, as Ann asks, “if one parent in the house got the peace order, but the other was helping the kids write their letters to Santa.”  In that case, where one parent (and presumably the child) wanted Santa to monitor the child’s behavior.  In that case there’s a significant hardship for Santa: if the child is good then he can’t toys to a child that wants them (and according to Santa, deserves them) .  And now the public (in the form of these third parties) has a strong, well-defined interest in allowing Santa to monitor the child’s behavior and give those gifts.  The first two factors still weigh in the plaintiff’s favor, but now they must be balanced against the other two.

III. Conclusion

Although Santa probably isn’t breaking any criminal laws, he could potentially be enjoined from monitoring someone who didn’t want to be (NB: children whose parents want Santa to keep tabs on their kid probably wouldn’t be able to bring a suit against Santa, since their parents can consent to the observation).  Of course, we doubt Santa would ever do that, which may explain why it remains a hypothetical question even in this litigious age.

18 responses to “Santa and Restraining Orders

  1. Christopher L. Bennett

    I wonder, though: Is Santa really a self-appointed arbiter? Consider how many countries’ governments indulge his passage through their airspace, or even actively monitor his flight plan on Christmas Eve. I wouldn’t be surprised if Santa had some kind of off-the-books arrangement with the major governments of the world to keep watch on their children, somewhat analogous to Batman’s unofficial relationship with the Gotham PD. (New post idea: “Is Santa a State Actor?”) Of course, any government that tried to talk him into using his surveillance powers for nefarious purposes such as youth indoctrination or social control would get so much coal in their stockings…

    • If Santa is a state actor, does he violate the 4th (warrantless wiretaps to the extreme), 1st (he doesn’t come for Jewish families), and at a stretch, 3rd ammendments (if an argument could be made that he has a connection to the military, one is expected to give him food and drink as he makes his rounds, or else be left out)

      • @Pat Very interesting thoughts, but I think the answer is no to all three.

        Regarding the 4th, it is simply not an issue where there is consent. As this post mentions, Santa would probably have no issue not watching someone if their parents withdrew consent.

        Regarding the 1st, this is trickier. But while Christmas has strong ties with Christianity, there are many who have Christmas (or Holiday Season) celebrations who are not necessarily Christian and Santa would have no hesitation visiting them on Christmas eve with toys at the ready if he were invited regardless of the religion of the family. Now many families may opt out for religious reasons but that is them exercising their religious rights freely, precisely what the 1st was meant to protect.

        If Santa is actually receiving government funding then we might still have a 1st ammendment issue based on the use of the money, but the indications are his funding is not governmental, and even if it was partially governmental the government provides money to many institutions with religious ties so long as the purpose of that many fits a valid governmental object.

        The 3rd is a non-issue as you correctly point out its a stretch. The first point is that he probably doesn’t have a connection to the military. If we assume arguendo that he does, it is still a stretch to say that providing milk and cookies is the type of quartering that the 3rd ammendment was afraid of.

        This is all reinforced by the fact that it is voluntary. Santa seems willing to visit those who do not leave appropriate food and drink, and even if it were a precondition the government is generally free to attach reasonable preconditions to receiving certain types of government services. The 3rd after all prevents someone from being ordered to quarter troops in their home, it doesn’t say they can’t voluntarily negotiate with the government to quarter troops in their home in exchange for compensation.

  2. When Santa makes toys for children is that a copyright violation, if the toy is something like a video game that contains copyrighted material? Is it trademark infringement? Would the fact that everyone knows Santa makes toys excuse the trademark infringement since he’s not trying to pretend the toys come from the original source? (It seems like it’s the equivalent of making something with a fake brand name but attaching a big ‘not really’ sticker to it. Is that trademark infringement?) Is the copyright infringement affected by the fact that the North Pole seems to be a sovereign country that hasn’t signed the Berne Convention? What if Santa makes a toy containing a warranty card, and the kid mails it in to the company named on the warranty card, has Santa committed an additional crime?

    Would this copyright or trademark infringement be considered “for profit” since Santa gains milk and cookies for delivering the infringing goods?

    If those are crimes, would Santa (as ruler of a sovereign state) get sovereign immunity, so nothing could be done to him aside from deporting him (and he leaves the country voluntarily anyway).

    If Santa was deported on those grounds, could the FAA still legally give him clearance to enter the country anyway?

    Also, would the use of Santa Claus in any copyrighted works violate any right of publicity that Santa might have? Would companies making those works be required to write “this is a Santa impersonator” in fine print? (I was at a Moe’s and they had a picture of Obama on something with fine print saying it was an Obama impersonator.)

  3. I meant diplomatic immunity.

  4. “Is the copyright infringement affected by the fact that the North Pole seems to be a sovereign country that hasn’t signed the Berne Convention?”

    No, because Santa imports his counterfeit, copyright-infringing products into the U.S.

    “would Santa (as ruler of a sovereign state) get sovereign immunity, so nothing could be done to him aside from deporting him (and he leaves the country voluntarily anyway).”
    Diplomatic immunity is extended by the host country, it is not automatic and it can be revoked. If Santa returns after being denied entry, he may be repulsed by force. His aircraft could be intercepted and diverted to a landing outside of the USA. If he persists, it might be an act of war.

    The real problem, of course, is that Santa is known to have left U.S. currency. If it is real, where did he get it? He may have violated laws requiring registration of large amounts of cash. And if the elves made it in the workshop, well, counterfeiting is a serious offense.

  5. It would seem to me that the precedent of U.S. ex rel Mayo v. Satan is relevant here.

    • Exactly, Harold. I would wonder what court would have sufficient jurisdiction over Santa in the first place.

      • The question is whether or not you can get at assets. Satan may not have any identifiable assets, but Santa does… right up until Dec. 24, anyway.

  6. Could Santa be considered guilty of criminal stalking if he left coal for a naughty child? This could cause emotional harm, and the contact would have been actively initiated by Santa (as opposed to just the omission of leaving toys)

  7. In Georgia, a person could file for a temporary protective order enjoining Santa from being anywhere near them (to a certain radius around their home). This could stop him from even entering the next door neighbor’s house if they’re close enough!
    If Santa then violated, he could potentially expose himself to an Aggravated Stalking charge. But typically, you can’t simply violate the TPO, you got to do it violently or harassingly, which he doesn’t. I guess the only action available in Georgia then would be some kind of contempt action for violating the TPO. But seriously, what judge is going to jail Santa?

    Furthermore, how would a court ever be able to gain personal jurisdiction over him? Good luck trying to serve him that subpoena. Also, as a foreign dignitary, I don’t know that he’d even be subject to the courts’ jurisdiction.

    • What’s the standard for getting a TPO? Would Santa qualify?

      Santa is presumably not a US citizen, but I don’t know if he’s a sovereign or otherwise legally privileged person. It’s true that he lives outside the territory of any other country (i.e. at the North Pole) and apparently presides over a permanent population (the elves and Mrs. Claus), but I don’t know if he is considered to be the ruler of a state. But I’m not an expert on Santa lore. There may be some sources that consider him to be the King of the North Pole or similar.

      • In Georgia, it’s a ridiculously low bar to get a TPO. From my experience, they pretty much get handed out like candy.

  8. >>because Santa has an unbroken record of hundreds of years of peaceful activity.<<

    Well, I don't know about that. Middle Ages Santa was not the ho ho ho Santa we have today. As this documentary shows, Father Christmases can be violent and scary before they're properly trained or justly provoked. Most Santas we encounter out of the wild have of course been properly trained, but well… incidents can happen…

  9. Pingback: Answering the age old question “can you get a restraining order against Santa Claus” « Tom Simpson and the Raiders of the Lost Blog

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