Official federal representation against state restraining orders following the Armed Forces Domestic Security Act of 2002

Army Lawyer, March, 2007 by Joshua M. Toman

Introduction

Captain (CPT) Samuel Adams concludes the final pre-deployment formation for Headquarters and Headquarters Company (HHC) at 1530 on Thursday and heads to his office. Before reaching it, he notices a military policeman (MP) and a deputy from the sheriff's office coming up the sidewalk. Judging by their demeanor, it is obvious this is not a social visit. The deputy informs CPT Adams that he is being served with a temporary restraining order (TRO) from the local county court. Captain Adams reads the TRO which clearly states that he cannot disregard the order until the county court modifies or revokes it. The order also states there is a hearing at the local courthouse tomorrow, Friday, at 0900. The order specifically prohibits CPT Adams from contacting or approaching Private (PVT) Norman Bates, the protected party, or being within 500 feet of PVT Bates's residence or place of employment. Private Bates is assigned to the HHC and works in the supply room adjacent to CPT Adam's office; and PVT Bates lives in the barracks directly above CPT Adam's office.

Private Bates alleges several things in the request for the order: CPT Adams is stalking PVT Bates both on and off-post; CPT Adams is having third persons harass PVT Bates; CPT Adams is repeatedly visiting PVT Bates's place of employment without being invited; CPT Adams has verbally harassed and threatened PVT Bates in the presence of others; and CPT Adams has access to firearms. The TRO was sworn out today, which was the first day PVT Bates was allowed to use pass privileges in nearly a month. Private Bates had recently received both a company grade and a field grade Article 15 based on various acts of misconduct. (2)

The MP assures CPT Adams that the TRO is not a joke and then escorts him 500 feet away from the HHC, even though the company will be deploying at 0600 on Saturday, less than 40 hours away. As the MP and deputy leave, a bewildered CPT Adams calls the installation's office of the staff judge advocate (OSJA). When the non-commissioned officer in charge (NCOIC) of legal assistance answers the phone, CPT Adams hurriedly relays that he has been served with a county court TRO ordering him to stay away from one of his Soldiers, PVT Bates. Before CPT Adams can explain that PVT Bates is a disgruntled Soldier, the NCOIC interrupts. The NCOIC tells CPT Adams that state orders are not valid on federal installations, but if CPT Adams is worried about it, he will have to hire a civilian attorney because it is a state court issue on what appears to be a personal matter.

The NCOIC gives CPT Adams the telephone number for Chris Cox, a former Army judge advocate who has a civilian law office across from the county courthouse. Captain Adams makes the call and Mr. Cox patiently listens to all the details. Mr. Cox tells CPT Adams to bring his checkbook, the TRO, and PVT Bates's performances files, and come down to his office immediately. At the hearing the next morning, Mr. Cox argues that the allegations are unsubstantiated; CPT Adams has broad discretion "to maintain the order, security, and discipline" (3) in his unit; and that even federal judges are hesitant to interfere (4) with official military functions (5) as seen in this case. The judge rescinds the TRO, ruling that the basis of the TRO was unfounded and CPT Adams was performing official duties. Captain Adams deploys the next morning, but eventually hears that he may have been entitled to official representation because of the official nature of the circumstances surrounding the TRO. Regrettably, after numerous memorandums, requests, faxes, e-mails and phone calls, CPT Adams learns that he will not be reimbursed for his legal fees.

This article presents three issues relating to TROs: (1) Do state-issued protection orders have any force or effect on a military installation or upon official military functions performed off the installation?; (2) How do commanders, leaders, or supervisors get official Federal legal representation?; and (3) What must judge advocates (JAs) do to determine the scope of employment and assist in the request for representation process? A recent case addressed these issues when a company commander paid $1,000 to a civilian attorney to quash a TRO. (6) The commander later sought reimbursement from the U.S. Department of Justice (DoJ). (7) Since state protection orders must be enforced on military installations and may impact official duties off the installation, it is crucial for JAs to be familiar with the request for representation process. (8) As seen in the opening quote, the purpose here is to educate readers on the issue and mark the trail to the relevant regulations in order to prepare JAs for when these issues arise on the installation.

Background on Protection Orders

The Violence Against Women Act (VAWA) (9) requires states to give full faith and credit to all valid state protection orders, both civil and criminal, no matter where the order was issued. The rationale behind the VAWA was that persons who cross jurisdictions to pursue their victims are more likely to engage in violent behavior. (10) Congress, therefore, felt it was imperative that such persons would be arrested for violating the terms or conditions of a protection order anywhere in the United States. Protection orders are defined as "any injunction or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person." (11) These orders can be obtained ex parte in most jurisdictions and remain in effect until they are modified by the court or expire. (12) However, the VAWA, did not encompass the entire United States because many military bases fall under exclusive federal jurisdiction, (13) and therefore do not have the same enforcement obligations regarding state protection orders. (14)