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Military Protective (Restraining) Orders

Conditions on Liberty

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In the civilian justice system, a "restraining order" or "protective order" is issued by a judge when a party petitions the court for protection from another individual.

The United States Military Justice System has its own version of "restraining orders," more commonly referred to as "military protective orders," but which are officially "conditions on liberty."

Rule 304 of the Manual for Courts-Martial (MCM) allows commanders to impose "pre-trial restraints" under certain circumstances. Pretrial restraint is moral or physical restraint on a person’s liberty which is imposed before and during disposition of offenses. Pretrial restraint may consist of restriction in lieu of arrest, arrest, confinement, or conditions on liberty.

Restriction in lieu of arrest. Restriction in lieu of arrest is the restraint of a person by oral or written orders directing the person to remain within specified limits; a restricted person shall, unless otherwise directed, perform full military duties while restricted.

Arrest. Arrest is the restraint of a person by oral or written order not imposed as punishment, directing the person to remain within specified limits; a person in the status of arrest may not be required to perform full military duties such as commanding or supervising personnel, serving as guard, or bearing arms. The status of arrest automatically ends when the person is placed, by the authority who ordered the arrest or a superior authority, on duty inconsistent with the status of arrest, but this shall not prevent requiring the person arrested to do ordinary cleaning or policing, or to take part in routine training and duties.

Confinement. Pretrial confinement is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of offenses. There are very strict limits on whether or not confinement is authorized. See our Pre-Trial Confinement article for more information.

Conditions on liberty. Conditions on liberty are imposed by orders directing a person to do or refrain from doing specified acts. Such conditions may be imposed in conjunction with other forms of restraint or separately. A "Military Protective Order" falls under the category of "Conditions on Liberty."

Unlike the civilian justice system which requires a judge to grant a protective or restraining order, in the military any commissioned officer can impose a condition on liberty on any enlisted member. Only a commanding officer of who's authority the member is subject can impose a condition on liberty on a commissioned or warrant officer. The authority to impose a condition on liberty on a commission or warrant officer cannot be delegated.

However, a commanding officer may delegate to warrant, petty, and noncommissioned officers authority to impose conditions on liberty of enlisted persons of the commanding officer’s command or subject to the authority of that commanding officer. For example, it is quite common for commanders to delegate the authority to impose conditions on liberty to their first sergeants.

Authorities cannot impose conditions on liberty on a whim. In order for the protective order to be valid, there must be "reasonable belief" that:

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