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.
