What is an injunction? A closer look at what it is and what is involved in asking, issuing one.

While the word ‘injunction’ sounds like it might be part of a vintage “Schoolhouse Rocks” episode, it is actually legal document that can change the course of litigation in the courts.

An injunction is temporary relief that requires a person or party to cease and desist from doing a certain action until the courts rule on the merits of the case. The court may issue a protective order, including restraining orders or injunctions, to preserve the availability of property subject to civil forfeiture and to protect the interest of the United States in property subject to forfeiture.

An injunction is an extraordinary remedy that courts use in special cases to alter or maintain the status quo, depending on the circumstances, particularly where the defendant must stop its course of action to prevent possible injustice and irreparable harm to the plaintiff. Injunctive relief is a discretionary power of the court, in which the court must balance the irreparable harm and inadequacy of damages if it were not granted against the damages that would result if an injunction was granted.

An individual who has been given adequate notice of an injunction but fails to follow the court's orders may be punished for contempt of court.

Deciding whether or not to file an injunction and pursuing it requires a lot of thought and planning and is not something taken lightly by the legal system. Choosing whether to grant temporary injunctive relief is up to the discretion of the court. A U.S. District Court judge issues the injunction or order under the seal of the clerk of the court.

According the U.S. Marshalls, there is are territorial limits for an injunction, normally limited to execution within the issuing district, but may extend outside the district or state upon order of the court if the court has personal (in personam) jurisdiction over the named individual or under statutory authority, such as in trademark and copyright cases. However, the parties may only challenge the court's personal jurisdiction.

The injunction or order is served by a U.S. Marshal or another person, presumably a law enforcement officer, specifically appointed by the court in accordance with Federal Rule of Civil Procedure 4.1(a).

Unless otherwise directed to the U.S. Marshal, the Marshal has no responsibility or authority to assure compliance with the order. If the party served fails to comply with the order, the requesting party or the court may pursue legal action.

To ensure an injunction is followed, the individual effecting service will provide proof of service by recording on the injunction a description of the action taken according to the instructions contained in it. The instructions may require that an inventory be done, including the proper value of the property seized, or other such steps.

There are three types of injunctions: Temporary restraining orders, preliminary injunctions, and permanent injunctions. Temporary restraining orders (TRO) and preliminary injunctions are equitable in nature.

A TRO is a short-term measure in effect until the court is able to issue something more enduring, such as a preliminary injunction. For example, a temporary restraining order can be issued without notice by a federal court, but cannot exceed ten days without additional court proceedings. Temporary restraining orders may be issued without a court hearing and without informing the opposing party. Temporary restraining orders are often issued by state and local courts to prevent contact between parties, where the defendants’ actions could seriously harm the plaintiffs.

For example, in 1981, a federal court, issued a temporary restraining order against the Los Angeles Unified School District in an effort to stop the school district’s plans to dismantle an organized busing plan, fearing that the school district’s plans would harm the students.

Unlike TRO, temporary injunctions are slightly more enduring in effect than TRO, and requires a court proceeding and usually requires a notice to the opposing party.

In determining whether to grant or deny a preliminary injunctive relief, the courts generally look to several of the factors including: the plaintiff's likelihood of prevailing on the merits; a showing of irreparable injury to plaintiff if relief is not granted; the threatened injury to the movant is demonstrated to outweigh whatever damage the proposed injunction may cause the opposing party; and the balancing of equities.

A court cannot grant a preliminary injunction without notice to the other party and a hearing. A preliminary injunction lasts until a further order of the court, which could happen while the case is still ongoing, or after a trial on the merits. This could be months, or even years.

Balancing Test for Preliminary Injunctions

Since a preliminary injunction can restrain a party’s actions for a long period of time, the U.S. Supreme Court has set a high burden of proof for a plaintiff seeking an injunction, and identified a four-part balancing test in the case, Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008).

First, a party seeking a preliminary injunction in a federal lawsuit must demonstrate that they are likely to succeed on the merits of their underlying cause of action.

The plaintiff must next establish that irreparable harm is likely if the court does not grant the preliminary injunction. This requires evidence of “a real and immediate threat of future injury by the defendant.”

Once the plaintiff has established that they are likely to succeed on the merits, and that irreparable harm is likely to occur without an injunction, they must show that the balance of both equities and hardships is in their favor. This requires more than just weighing the pros and cons of the proposed preliminary injunction. In a general sense, “equities” refers to the plaintiff’s interest in obtaining an injunction, and “hardships” refers to the burden that an injunction would place on the defendant.

Finally, the plaintiff must show that a preliminary injunction would be in the public interest. This is often a highly subjective standard, but courts can sometimes look at the statute at issue for guidance.

Permanent Injunctions require a little more from the courts before they are issued, a balancing test that courts typically use to determine an injunction. To seek a permanent injunction, the plaintiff must pass the four-step test: (1) that the plaintiff has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for the injury; (3) that the remedy in equity is warranted upon consideration of the balance of hardships between the plaintiff and defendant; and (4) that the permanent injunction being sought would not hurt public interest.

Permanent injunctions are issued as a final judgment in a case, where monetary damages will not suffice. According to the Law Institute at Cornell Law School at Cornell University, failure to comply with an injunction may result in being held in contempt of court, which in turn may result in either criminal or civil liability.