10 U.S. Code § 1567a is titled “Mandatory notification of issuance of military protective order to civilian law enforcement.”
This provision was enacted as part of the 2019 National Defense Authorization Act in response to reports that civilian law enforcement were unaware of and could not enforce military protective orders (MPOs) issued by military commanders. A MPO is akin to a civilian injunction that places limits on contact and liberty. A MPO can forbid a service member from having direct contact or contact through third parties with specific persons. It can forbid a service member from going to a specific place and possessing personal firearms. A MPO is now issued using DD Form 2873 dated February 2020.
The biggest impact of 10 U.S. Code § 1567a is its application by the Department of Defense – the Marine Corps, Army, Air Force, and Navy. By DoD and makeshift service regulations, all MPOs are to be entered in the National Crime Information Center (NCIC). NCIC is the expansive database run but the Federal Bureau of Investigation that can be accessed by any civilian (federal and state) or military law enforcement agency. It’s the same system where arrests, convictions, and warrants are entered. NCIC is the system that the police are accessing from their car computer during the traffic stop or that dispatch is accessing over the radio when they are calling in the license.
There are numerous problems with MPOs – the lack of any real due process; the extensive duration of the MPOs; the idea that military commanders are suited to resolve domestic issues in cases involving spousal or child abuse; the lack of inexperience of military commanders to determine whether or not the circumstances (and more importantly, the facts) call for the issuance of MPOs. The reality is that MPOs are being issued by military commanders without a proper evaluation of all facts and circumstances. Rather, MPOs are issued as a standard operating procedure or at the request of an alleged victim of domestic violence or sexual assault. This is a real problem, but I expect it to get worse.
The DD Form 2873 on its face indicates that the MPO never expires. So it is put into NCIS and it never expires. It can be removed from NCIC by a properly completed DD Form 2873-1, Cancelation of Military Protective Order that is provided to the military law enforcement that originally entered the MPO into NCIC. But here is the problem – unlike civilian courts that issue injunctions that last more than days only after an adversarial hearing (think due process!) and that have entire staffs dedicated to entering and removing those injunctions from NCIC, military commanders don’t have that support nor is tracking and updating MPOs a high priority for a commander. This doesn’t even account for the frequent changes of command!
Years from now I have no doubt that honorably discharged service members or retired service members who were issued a MPO years prior will find out that the MPO still lives in NCIC and prohibits the possession or purchase of a firearm. Or the MPO will come up during a background check for a job. And in most of the cases the MPO should have never been issued in the first place.
The worst part of what has yet to come is that there is good mechanism for removing information from NCIC. The burden will be on the service member to show that he is entitled to have the MPO removed. I can see it being an extremely burdensome procedure to try and convince military authorities they need to remove a MPO from years earlier.
Attorney Patrick Korody is a former active duty Navy JAG. He defends service members facing sexual assault and other UCMJ crimes all over the world. He maintains an office in Jacksonville, FL where he also practices state and federal criminal defense. And, as you can tell, he very much dislikes military protective orders.