Why Your Military Protective Order is Illegal: A Guide

Military Protective Orders (MPOs) are increasingly abused in the military justice system. If you are reading this Article, you likely know that it takes a Commanding Officer (CO) about 4 minutes to cut and paste, sign, and hand over DD Form 2873 to ban a service member from seeing his or her children, spouse, or even home for as long as that officer thinks it’s a good idea. It can last months – even years – on end as an accused servicemember awaits trial. No Hearing. No neutral Review. No burden of proof. Just the whim of the CO, bolstered by his legal or senior enlisted advisors.

An MPO is essentially the military counterpart to a civilian Temporary Restraining Order and Permanent Restraining/Protective Order- all wrapped in one. Except, the civilian procedural requirements are essentially nonexistent in military practice. That’s a scary proposition in a senior officer and enlisted corps where independent judgment, common sense, and moral courage in military justice matters are increasingly taking a back seat to self-protective careerism and knee-jerk prosecution. In the current political environment, little incentive exists for a commander to afford due process and the presumption of innocence to an accused service member.

Certainly, MPOs are recognized by 10 U.S. Code § 1567, and, in theory, MPOs are an important emergency tool to protect potential victims of a servicemember’s violence when there is actual evidence of an “immediate threat.” A military commander is often in a unique position of control over the member to effect this protection. A night, two nights, maybe even a week is appropriate in some circumstances where there is reasonable basis to believe a servicemember’s family members may truly be in emergent danger. If that can be shown in your case, then an MPO SHOULD be in place, at least temporarily.

However, there’s been a terrible overcorrection. Extended or indefinite MPOs are now the norm, issued as a matter of course. MPOs are often issued to “protect” the interests of two people: the commander and his legal advisor. “Just to err on the side of caution” or because “It’s probably a good idea.” Or worse, the Order is maintained as a way to punish an accused subordinate that they have now disavowed based on the mere fact of an allegation, while ignoring facts that show the opposite.

MPOs are regularly used as tools for those given to malicious and vindictive claims. (case-in-point, below) Other times, there is no accuser at all. Just a Command unilaterally extending its authority. The paternalistic order persists for months on end until trial, even when the original claimant recants or repeatedly petitions the CO to lift the MPO.

These types of ongoing MPOs keeping you from your family are illegal. You can fight them. I will discuss:

1. Why they are unconstitutional,
2. What authority you should show your Commander in a Request Mast or Article 138 complaint, and
3. How you can take legal action if your Command doesn’t correct themselves.

I’ll analyze MPOs from the perspective of the Marine Corps’ system, but nearly all of the authority and steps discussed apply across all branches.

First, a Success Story

If you want to see what real consequences look like for prosecutors and Commanders for these MPOs, I’ve included below the 2013 California Central District Federal Court order in the Case of SSgt Rios, USMC v. Secretary of the Navy Ray Mabus, et al. When I was a Marine Corps defense counsel, I had a combat-hero client that prosecutors had attacked with pages of baseless charges. The prosecution was malicious and zealously pursued by attorneys that had no business near a courtroom. One of the charges included a claim that this Marine had abused his son. Who made the claim? His ex-wife who was facing her own felony trial for the same incidents of domestic violence in Orange County, CA. And she knew the military system well. My client was and is a great father. He was even awarded 100% custody by the State after his wife was arrested for her crimes. Yet, not only did the Commander add more charges to the case after her unsubstantiated claims, but he drummed up an MPO at the behest of his prosecutors. This MPO allowed the military to put the child back in the arms of the mother. She was subsequently in two serious car accidents while on prescription medication with the child in the car, by the way. The MPO went on for months. 16 Months. The Government refused to lift the Order despite our repeated efforts.

Since my co-counsel and I were still in uniform, we personally could not sue the military. So we enlisted the help of a fine San Diego-based Family Law attorney, Mr. Nicholas Grey, to help us take the CO, General, and the Secretary of the Navy to Federal Court in the Central District of California. Our Staff Sergeant won, and the Court granted an injunction, ordering the MPO to be removed. Our client’s son was back in his custody that week. As for those pages of charges the Government levied, he was fully acquitted of each and every charge at his General Court-Martial a few months later.

You, similarly, do not have to accept an unreasonable denial of your right to the care, custody, and visitation of your children and family. Consequences do exist for military officials that blindly or maliciously perpetuate baseless MPOs. The below analysis is not just abstract legal theory. It has teeth and can help you now.

Family MPOs Infringe Upon the “Oldest Fundamental Liberty.”

The Fifth Amendment to the Constitution prohibits any Officer of the United States from depriving citizens of their liberties without due process of law. This applies to Military Commanders and their lawyers as well, whether they want to believe it or not. The Supreme Court has ruled, “…[T]he interest of parents in the care, custody, and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). The right to privacy in your relationship with your family is a fundamental right, requiring special procedural protection. You did not give up this right when you joined the military.

“This Court’s decisions have by now made plain beyond the need for multiple citation that a parent’s desire for and right to the companionship, care, custody, and management of his or her children is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection.” Lassiter v. Dep’t of Social Services, 452 U.S. 18, 27 (1981).

Your Not-a-Trained-Family-Law-Expert Commanding Officer must be able to present actual evidence and show a “powerful countervailing interest” before you may be stripped of this vigilantly-protected right for any extended period of time. You are entitled to meaningful due process before this may happen. That requires something more than an allegation without evidence, “erring on the side of caution,” or a desire “to protect you from further allegations.” Something more than a signed form, never to be revisited.

Each day you lose the right of “companionship, care, custody, and management” with your family counts as “irreparable harm.” “Irreparable harm,” when it comes to Constitutional Rights, is an important concept for an active duty service member seeking to take legal action against a military superior. Courts must step in and prevent irreparable harm when due process requirements are not met. More on that later.

If You Don’t Get a Hearing, and Your CO Can’t Prove “Imminent Danger,” Your Ongoing Military Protective Order is Illegal.

Not only must your CO show a powerful interest and have compelling evidence, but you are entitled to an actual hearing. Quickly. The Supreme Court has said, “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). This may be hard to believe, but a counseling session with your Company Commander, First Sergeant, or Sergeant Major is NOT a meaningful opportunity to be heard. When an MPO lasts for any extended period of time, you must be given a real “hearing” and your CO, not you, has the burden of proof. Does that happen? Of course not. This is why you must challenge it.

MPOs now rest in place for months with no chance for appeal, no chance for hearing before an impartial body, review, or due process in place whatsoever. The only check or balance is the judgment of your CO.

A Federal Court of Appeals in California has affirmed that you have “a constitutionally protected right to the care and custody of [your] child and cannot be summarily deprived of custody without notice and a hearing except when the child [is] in imminent danger.” Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997).

So, what is Imminent Danger?

“Imminent Danger” means an emergency. When you have an MPO lasting weeks on end, months, or even one week, do you really think your CO or his lawyer advisors can justify an ongoing emergency for each of those days? Not likely. Just to give you an idea, that same court in Ram v. Rubin ruled that it was very possible that a 4-day temporary protective order keeping a father from his child without a hearing was unreasonable. 4 days. And that was California Social Services who took the child in Ram. Not a military officer with zero family law expertise. How long has your MPO lasted without notice, hearing, or review?

It should now be very obvious that when the CO says that he is simply “Protecting you from further allegations” with an MPO, it is unconstitutional. The justification of “erring on the side of caution” without any real evidence is unconstitutional. The justification, “We will just keep this MPO in place while we investigate,” is unconstitutional. They have to show “imminent danger.” They must prove that YOU are an imminent danger to someone else. A demonstrated emergency.

The Military Does Not Have the Structure to Provide the Required Due Process in this State Family Law Matter

When the military assumes functions beyond its boundaries, civilian courts will strike the actions down. Don’t believe me? Here’s the Supreme Court again: “Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.” Rostker v Goldberg, 453 U.S. at 71, citing Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953). MPOs are at the distant periphery of the military’s “primary business…to fight or be ready to fight wars should the occasion arise.” Id. at 70.

The military does not and should not dive into the depths of civilian Family Law. Neither military units nor military courts have family law court services; adequate child and social services; specialized family law staff, systems, or tribunals; or specialized advocates, attorneys, and procedures. State Courts maintain these systems to ensure the necessary due process in Family Law and Restraining/Protective Order processes.

Marine Corps leaders are hands-down experts in warfighting, not the intricacies and nuances of Family Law, sociology, and psychology. Military Commanders and their staff lawyers are not trained or equipped to properly and independently analyze the facts and determine risk factors in parent-child relationships, especially when no hearing or mechanism is given to the suspected servicemember to present his side of the case or attack the credibility of the “evidence” that was used to issue the MPO.

The Supreme Court is clear that the Federal Government (your Commander) should not order your domestic relations. If ever necessary, it’s the job of the State you are in: “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In re Burrus, 136 U.S. 586, 593-594 (1890).

Family Law judges specialize and are trained in exactly this sort of analysis. They have Child Protective Services and Family Court Services to dig into the true facts and circumstances. Judges may even appoint a guardian ad litem to represent the child’s interests. They have actual Temporary and Permanent Restraining Order hearings that involve all of these services and allow a defendant to defend himself.

If true ongoing “imminent danger” evidence existed, requiring weeks, months, or years of deprivation, civilian authorities would almost certainly be involved in the form of a permanent Restraining or Custody Order. MPO processes are not intended, designed, or capable of that type of ongoing family restraint.

MPOs Can NOT Replace Civilian Restraining Orders

Yet, Commanders get away with it all the time. Even 10 U.S. Code § 1567(a), requires commanders to notify state officials of the MPO and the names of the parties involved each time an MPO is issued. (I’ve never actually seen compliance with this Requirement). Congress intended for MPOs to serve an emergency purpose, just long enough to allow the experts in these matters to monitor and take action, if necessary.

And if there was any doubt, the Secretary of Defense’s 2004 memorandum that issued the current MPO form, DD FORM 2873, stated, “Commanding Officers shall issue MPOs when necessary to safeguard victims, quell disturbances, and maintain good order and discipline while victims have time to pursue protection orders through the civilian courts, or support existing civilian orders of protection.” (emph. added)

So, not only are nearly all MPOs longer than a week, month, or year unconstitutional, they are contrary to the intent of the U.S. Code and the Department of Defense’s own policy.

But every day in the military, some Commander takes all of these functions upon himself, signs an indefinite MPO, and the servicemember has no way to be heard. That’s wrong. It is outside their expertise and mission. It is against the law.

Marine Corps MPOs are Regularly Maintained in Violation of the Marine Corps’ Own Internal Policy and Regulations

The Marine Corps has made an attempt to provide some due process with respect to MPOs. However, Marine Commanders seldom even use this process when maintaining MPOs.

Marine Corps Order (MCO) 1754.11 appendix F, “Family Advocacy and General Counseling Program” is among the authority that governs Marine MPOs. This order provides for policy and procedural guidance on orders that last any meaningful period of time. It discusses that, after plain, emergent “imminent danger,” proper professionals are best situated to oversee the matter.

To fulfill the purpose of proper professional oversight and determination, MCO 1754.11 provides for an “Incident Determination” process whereby a multi-disciplinary committee “decides which cases meet certain criteria requiring entry into the Family Advocacy system.” An Incident Determination Committee (IDC) meeting is provided in Section 5-7-5-11 of 1754.11. A Marine is provided further due process guarantees in the form of an IDC review committee, again under Section 5-7-5 of that order.

Do you think this process is used? Do you think your CO has given up control of the MPO to an “Incident Determination Committee”? Yet, even the Marine Corps itself recognizes, even mandates, that “Incident Determination” processes should take control of the matter (from the military’s perspective) and provide their expert opinion and treatment.

Now, for all the authority listed above, use of the Incident Determination Process does not, in itself, mean you have been provided with adequate Due Process and may not still challenge the MPO. However, if a CO does not at least allow your case to be heard, analyzed, and evaluated by an Incident Determination committee, he is violating even lawful internal Marine Corps General Order.

“Supervised Visits” Don’t Solve the Problem

Many times, commanders will think they are being reasonable by allowing for short visits that are supervised by someone in the chain of command. That is unacceptable. The “supervised visits” do not serve to absolve the need for due process and a hearing before an impartial body to review your case and make a determination. Do not think your CO is being “reasonable” by allowing you supervised visits once a week. Your fundamental rights are still being violated without process.

Practically, What Can You Do?

First, do not simply violate an MPO you believe it to be bogus or unlawful. UCMJ Articles 92 “Order Violation” or 134 “Obstructing Justice” charges can carry serious penalties. Sometimes they end up being the only charge that the Government can actually prove against you. Talk to a lawyer first to determine the viability of your particular MPO. Then challenge it through the proper channels.

In the Marine Corps or Navy, your initial actions should likely be to Request Mast or file an “Article 138, UCMJ” complaint. All 5 branches must immediately process Article 138 complaints. Before you can take legal actions against your chain of command, you have to “exhaust” your administrative remedies. So, although you will likely not get anywhere with Request Mast or even an Article 138 complaint, you must give your Commanding Officer and Commanding General that opportunity first.

Talk to the local military counsel, civilian counsel, or us at Aaron Meyer Law, to help you with crafting a strong written complaint. Forward this Article to your attorney, if necessary. Your complaint should include much of the authority listed above.

Your CO may refuse to hear your complaint, because “It’s intertwined with the court-martial process now.” That’s B.S. An MPO is strictly administrative in nature. It is not part of the court-martial. Because it is outside the court-marital process, your attorney will likely not even be able to get the court-martial judge to hear a pre-trial motion on the MPO. MPOs are not discussed in the UCMJ or “Rules for Courts-Marital” with any substance. MPOs only matter tangentially in potential Unlawful Command Influence or Illegal Pretrial Punishment actions.

When your commanders are violating the constitution, you must inform them and demand correction at their level now. Don’t let them hide behind some facetious procedural excuse. Do not let them keep you in some administrative black hole.

Your Command Has a Proactive DUTY to Correct It

Indeed, your CO needs to know that the law provides him with an affirmative duty. His lawyers need to understand that too. Your commander cannot just hide behind that fact that everyone does it this way, or that you have not shown him why you are not a danger to anyone. The burden is on him, and he must procactively protect your rights when there is no “imminent danger.” A Federal Court of Appeals has stated, “In this situation, the state cannot constitutionally sit back and wait for the parent to institute judicial proceedings. It cannot adopt for itself an attitude of ‘if you don’t like it, sue.’” Duchesne v. Sugarman, 566 F.2d 817, 828 (2d Cir. N.Y. 1977).

Take Legal Action Against Your Chain of Command

You may have heard that you can’t sue Military officers as an active duty member. As you see in Rios v. Mabus, when it involves a constitutional right like this, you can. You have to show:

“(a) An allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations; and

(b) Exhaustion of available intraservice corrective measures.”

Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971) (Mindes has been accepted in most circuits in the U.S.)

Once your Request Mast or Article 138 complaint is rejected on an unconstitutional MPO, you have the right to take legal action under Mindes.

The Court examines the four Mindes factors to determine if judicial review of the military decision is appropriate:

1. the nature and strength of the plaintiff’s claim;
2. the potential injury to the plaintiff if review is refused;
3. the extent of interference with military functions; and
4. the extent to which military discretion or expertise is involved.

Mindes, 452 F.2d at 201-202.

When you have a standing MPO issued to keep a father or mother from their children or family for weeks or months on end with no hearing, you usually meet these factors easily.

Especially in this Holiday Season, if you have an unreasonable MPO or command action keeping you from your family, talk to counsel at your installation and have them present this authority to the commander. Do not take this lying down. Contact Aaron Meyer Law. We stand up for servicemembers being abused by misplaced authority throughout the world.

Read SSgt Rios, USMC v. Secretary of the Navy Ray Mabus