Understanding the Proper Response and Mitigating Civil Liability for DV Incidents
A Primer for JAs
A Texas civilian plaintiff’s attorney glares at the witness and questions, “If you had done your job as a commander, Mrs. Giffa would be alive today, wouldn’t she, Major Miller?” In federal civil court in Austin, Texas, a former company commander sits on the stand for hours, defending her response to a domestic violence (DV) incident years earlier between a Soldier and his spouse.1 It is clear that she cared deeply for her Soldiers and their Families, and this case haunts her. After four grueling hours of testimony, the plaintiff’s attorney asks, “After you let Specialist Giffa return home from the no-contact order, how long do you think it was before he killed everybody?” It is a commander’s worst nightmare—having to defend their actions to a federal judge and being second-guessed by civilian attorneys who have never spent a day in the Army. How did the commander get here, in federal civilian court?
This ordeal began four years before the civil trial. On 22 February 2015, during a Sunday evening in Killeen, Texas—just two days after his commander lifted his no-contact order, Specialist (SPC) Giffa (a 92A logistical specialist with the 69th Air Defense Artillery Brigade) went to his neighbor’s home, where his wife was staying. He asked her to come home, but she refused. He left and returned to his neighbor’s home carrying the pistol he bought the day before. He then shot and killed two of his neighbors inside their home. He dragged his wife onto the front lawn and savagely beat her. When a neighbor confronted him, he shot her twice. He then dragged his wife across the lawn into their home and killed her; moments later, with his arms around her, he killed himself.
The grieving families of SPC Giffa’s victims filed a civil suit against the United States, seeking $61 million in compensation. They were not the only ones shocked by this tragic loss. Specialist Giffa’s chain of command was also stunned and confused. Less than two weeks before this believed-to-be quiet Soldier’s homicidal rampage, the Killeen Police determined that SPC Giffa was the victim of his wife’s physical abuse in a DV incident.
However, in their suit, the victims alleged that the Army—specifically SPC Giffa’s command—failed to protect Mrs. Giffa and the neighbors; they also argued that the command failed to follow Army regulations. Although a nine-day trial proved otherwise, defending this case required the testimony of the then-company, battalion, and garrison commanders. The Chief of Staff of III Corps spent two days in a federal courthouse waiting to provide testimony that was ultimately never requested. This is an ordeal that no command wants to go through. This article seeks to prevent it from occurring again.
Commanders and legal advisors want to take care of Soldiers and their Families, especially regarding DV; but, often, they are not familiar with procedures and policies applicable for DV responses. There is no uniform procedure enshrined in Army regulations, which means DV policies are often a patchwork of the rules and regulations for both Army and local authorities and are informed with state-specific laws as well. It is likely that DV incidents will rise in the next few months.2 The Coronavirus Disease (COVID)-19 pandemic has been financially and emotionally stressful and full of uncertainty, and domestic violence rates are on the rise.3 Tragic events sometimes result in civil lawsuits, and courts are increasingly likely to closely examine the Army’s actions and words in determining liability for a breach of duty—or assumed duty.
To enable consistency in applying Army policy, which mitigates the occurrence of future federal civil litigation, this article provides a basic understanding of a commander’s duties in responding to domestic violence and the Army’s potential tort liability for their actions. To do so, this article uses the tragic case of SPC Giffa as a guide. First, it discusses the Army’s potential civil liability for its response to DV through the Federal Tort Claims Act (FTCA). Next, it discusses exceptions to the FTCA which provide immunity to liability. Then, it focuses on the exceptions to the FTCA that provide immunity from liability and are part of the framework to guide command policies for DV. Obviously, the primary focus for DV response should be ensuring allegations of domestic violence are treated seriously, are investigated, and that victims are offered appropriate services consistent with existing policy. Finally, this article provides a standard operating procedure of consolidated mandatory and recommended actions in response to DV. It also provides a sample installation policy regarding DV response.
Liability for Domestic Violence Response Through the FTCA
An overview of civil litigation and the FTCA is critical to understanding how to limit the Army’s liability and prevent commanders from potentially testifying at a federal civil trial. While civil litigation should never drive policy, as the command’s focus should always be reporting instances of DV, understanding civil liability and how to minimize litigation risk is an important consideration for the attorneys that advise them.
As a sovereign, the United States may not be sued without its consent.4 For a court to have jurisdiction and allow citizens to sue the federal government, a plaintiff must show that one of the limited waivers of sovereign immunity applies.5 One such waiver of sovereign immunity is for injury or damages caused by the negligence of federal employees acting within the scope of their employment under the FTCA.6
The FTCA makes the federal government liable for its tortious acts to the same extent as a private person would be.7 Through the FTCA, an injured party can file a civil lawsuit and establish the United States 1) had a duty, 2) breached that duty, and 3) caused the harm which resulted in 4) damages.8 Therefore, victims of DV could—and in fact do—file lawsuits, alleging the Army violated its duties which resulted in the DV incident. As they potentially testify in a federal court about their decisions, actions, and inactions, this litigation subjects commanders to national scrutiny and exposes the Army to litigation costs and possible damages.
FTCA Exceptions Provide Liability Immunity and Can Inform Policy and Training
Having explored the basics of the FTCA, it is time to turn toward its applicable statutory exceptions in the context of domestic violence response. A brief discussion of the two exceptions most applicable to DV response—the intentional tort and discretionary function exceptions—is required to inform brigade judge advocates (BJAs) and staff judge advocates (SJAs) when advising commanders and drafting local DV response policies. This will ensure the command’s response comports with Army regulations, which minimizes the risk for future civil litigation.
The Intentional Tort Exception: Immunity from the Criminal Acts of Service Members
Though the federal government is generally treated like a private person under the FTCA, the government enjoys additional protections from civil suit.9 The FTCA carves out several broad exceptions to the waiver of sovereign immunity, such as when federal employees exercise discretion in their decision-making.10 Notably, the government is also not liable for the criminal actions of federal employees that constitute intentional torts—specifically, assault, battery, false imprisonment, false arrest, abuse of process, libel, and slander.11 The United States can invoke an exception by filing a motion to dismiss at the outset of litigation, asserting sovereign immunity remains and that the court must dismiss for a lack of jurisdiction.12 This invocation for lack of jurisdiction terminates the litigation without either discovery or a trial—a tremendously powerful tool for the United States.
Courts, however, are increasingly likely to delay dismissing a case outright. They continue the analysis and thoroughly consider whether the Army had a duty to protect people—by policy or its assurances—independent of the intentional tort exception, and will seek to determine whether the Army breached its duties.13 Specifically, courts consider the words of commanders to determine whether the Army assumed a duty to protect a DV victim. While the Army generally has neither a duty nor the ability to protect an individual from future violence, a sympathetic commander might erroneously assure a victim safety—thereby assuming a duty. Therefore, to ensure through discovery (and even trial) that the victim does not have a cognizable claim of liability for negligence of the assumed duty (despite immunity for intentional torts), courts are less likely to grant a motion to dismiss at the outset of litigation.
In the case of the Giffa murders, while his actions clearly constituted intentional criminal acts, the court’s analysis did not end with the intentional tort exception to the FTCA. Since the victims alleged in their lawsuit that—through its policies and commanders’ actions—the Army undertook a duty and thereafter failed to protect Mrs. Giffa, the litigation continued through trial and the subsequent appeal.14 After over four years of litigation, and a nine-day civil trial—which included testimony of the then-company, battalion, and garrison commanders—the court held that the Army owed no duty to the neighbors and dismissed their claims with prejudice pursuant to the intentional tort exception. The court, however, declined to rule on the close question as to whether the Army owed a duty to Mrs. Giffa because it could dismiss on another exception to the FTCA—the discretionary function exception.
The Discretionary Function Exception: Immunity for Decision-Making
Because the FTCA provides immunity when federal employees exercise discretion in their decision-making, generally, the Army cannot be liable for the discretionary actions of its federal employees.15 With the discretionary function exception to the FTCA, Congress intended to prevent “judicial second-guessing” of legislative and administrative decisions and litigation of policy through tort.16 The Supreme Court has provided a two-part test for determining whether a federal employee’s conduct qualifies as a discretionary function.17
First, the conduct must be a matter of choice, meaning neither state statute nor federal regulation binds the employee to act in a particular manner.18 This leaves the decisions of when and how to act to the employee’s discretion.19 If the conduct was mandatory, which is often signaled with the words “must,” “shall,” or “will,” the discretionary function does not apply. If, however, the conduct was discretionary, the court next considers whether the discretionary function exception was meant to shield this type of judgment from judicial second-guessing.20 Existence of a regulation or policy that does not direct specific action creates the strong presumption of agency consideration and intentional promulgation of discretion.21
In the case of the Giffa murders, the court found that the Army had mandatory duties to Mrs. Giffa but not the neighbors; in other words, the discretionary function exception applied. Specifically, the court found that the company commander took Mrs. Giffa’s allegations seriously and exercised reasonable care; it further found that the victims did not rely on the Army.22 The Fifth Circuit Court of Appeals affirmed two years later; but the plaintiffs may petition the Supreme Court of the United States for certiorari, and the appellate process may span years—possibly resulting in a new trial with the commanders all testifying again.23
Looking forward, the best way to limit commander testimony and judicial second-guessing of command decisions is to consistently comply with mandatory policies and procedures. In addition, commanders, informed by legal advice, should frame local policies with discretion (when appropriate), and, when local policies create additional mandatory duties, do so deliberately. To best understand how to respond to domestic violence, the standard operating procedure (SOP) in Appendix A consolidates the mandatory actions commanders must take; these actions are labeled as “Mandatory Action” only when necessary to distinguish them from non-mandatory actions. The SOP also delineates discretionary actions from regulations and recommended actions that commanders may take. Further, the sample policy for DV response in Appendix B models appropriate discretion. Brigade judge advocates and SJAs may incorporate these policies into their local regulations.
Sample Installation Policy on Response to DV
Many installations have policies on response to DV, but there is little uniformity.24 The sample policy in Appendix B seeks to remedy that by consolidating mandatory policies while providing subordinate commanders the maximum amount of discretion. Consistently following mandatory policies not only protects victims, but it also lowers the risk of civil litigation. Further, the more discretion a policy provides to subordinate leaders, the more efficiently the subordinate leader is able to address that particular situation, which means the litigation risk lowers. Rather than draconian policies, the best recourse to prevent DV is training.
When reviewing these policies, legal advisors should consider whether the installation commander intends for company, battalion, and brigade commanders to exercise their best judgement—their discretion—or whether the installation commander wants to make a mandatory, more stringent policy than the requirements of Army Regulation 608-18, The Army Family Advocacy Program.25 For example, a mandatory, 72-hour no-contact order does not allow subordinate commanders to permit passing of the custody of children or discussion of finances, property matters, or even family emergencies.26 When drafting a policy, it is best practice to explicitly afford company and battalion commanders discretion in the written policy memorandum. By prudently assuming risk in delegating decision-making to the lowest level, the Army actually responds more appropriately to domestic matters and decreases the risk of future civil litigation. When commanders exercise their discretion and judgment, they are able to make common sense decisions to take care of Soldiers and Families, and the Army is shielded from liability.
Commanders and their legal advisors must be familiar with their duties to effectively respond to DV incidents. However, they must also be mindful not to assume duties, especially a duty to investigate or to protect, that they cannot execute. Just as commanders may make the situation more dangerous and less predictable by assuming a duty, installation commanders may hamstring subordinate commanders by creating additional mandatory duties in local policies. Commanders must remember that they are taking care of their people when they understand what actions they are required to take and when they enable law enforcement and Family Advocacy Program personnel to perform their roles.
This may be more important now than ever, as the stress and uncertainty of the COVID-19 pandemic will likely exacerbate DV incidents. With increased DV incidents, the risk also arises that—particularly if commanders make inappropriate assurances of protection to victims—a chain of command will have to sit through a nine-day trial with civilian attorneys questioning their character and judgment four years from the date of the incident.
The SOP and sample policy letter can help reduce the risk of judicial second-guessing at civil trials, thereby ensuring commanders and Soldiers are kept out of the courtroom and remain in the field—ready to fight and win the Nation’s wars.27 TAL
1. See Kristensen v. United States, 372 F. Supp. 3d 461 (W.D. Tex. 2019) (a nine-day civil trial in September 2019 regarding a triple homicide-suicide that occurred four years prior, on 22 February 2015, in Killeen, Texas).
2. See Kyle Rempfer, Army Green Beret Colonel, I Corps Chief of Staff Arrested for Domestic Violence Allegations, Army Times (Dec. 28, 2020), https://www.armytimes.com/news/your-army/2020/12/28/army-green-beret-colonel-i-corps-chief-of-staff-arrested-for-domestic-violence/.
3. See generally Andrew M. Campbell, An Increasing Risk of Family Violence during the Covid-19 Pandemic: Strengthening Community Collaborations to Save Lives, 2 Forensic Sci. Int’l Reports art. no. 100089 (Apr. 2, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7152912/. See also Tess Cagle, Domestic Violence Statistics are Surging During the COVID-19 Pandemic, Nautilus (Sept. 23, 2020, 4:06 PM), https://coronavirus.nautil.us/domestic-violence-statistics/ (stating spiking statistics of domestic violence during the pandemic); but see Megan L. Evans et al., A Pandemic W ithin a Pandemic—Intimate Partner Violence During Covid-19, New Eng. J. Med. (Sept. 16, 2020), https://www.nejm.org/doi/full/10.1056/NEJMp2024046 (stating many organizations saw a decrease in domestic violence calls during the pandemic and reasoning that victims are dependent on their abusers and cannot seek help).
4. United States v. Sherwood, 312 U.S. 584 (1941) (“The United States, as sovereign, is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” Id. at 586 (citations omitted).
5. United States v. Mitchell, 463 U.S. 206, 212 (1983).
6. Definition of Tort Claims Procedure, 28 U.S.C. § 171 (2006).
7. United States as Defendant, 28 U.S.C. § 1346(b)(1); United States v. Orleans, 425 U.S. 807 (1976).
8. Liability of United States, 28 U.S.C. § 2674 (allowing the United States to be liable “in the same manner and to the same extent as a private individual in like circumstances”). See also Firestone Steel Prod. Co. v. Barajas, 927 S.W.2d 608, 613 (Tex. 1996) (stating the elements of negligence); Hoffstatter v. City of Seattle, 20 P.3d 1003 (Wash. Ct. App. 2001); Castellon v. U.S. Bancorp, 163 Cal. Rptr. 3d 637 (Cal. App. 2013).
9. Exceptions to Tort Claims Procedure, 28 U.S.C. § 2680.
11. 28 U.S.C. § 2680(h).
12. Aviles v. Lutz, 887 F.2d 1046 (10th Cir. 1989).
13. See Wilburn v. United States, 616 F. App’x 848 (6th Cir. 2015); Kristensen v. United States, 372 F. Supp. 3d 461 (W.D. Tex. 2019); Cuadrado-Concepcion v. United States, 2020 U.S. Dist. LEXIS 143040 (Ga. S.D.C. 2020).
14. See Kristensen v. United States, 372 F. Supp. 3d 461 (W.D. Tex. W.D. 2019); Kristensen v. United States, 993 F.3d 363 (5th Cir. 2021).
15. 28 U.S.C. § 2680(h).
16. Berkovitz v. United States, 486 U.S. 531, 537 (1988).
17. Id. at 536.
22. Kristensen v. United States, 372 F. Supp. 3d 461 (W.D. Tex. 2019).
23. Kristensen v. United States, 993 F.3d 363 (5th Cir. 2021) (affirming the lower court’s dismissal of the case, holding that the plaintiffs failed to show that the Army’s negligence caused the deaths).
24. See, e.g., Memorandum from Commander, U.S. Army Garrison Fort Bragg, subject: Installation Policy Letter #40—Command Response to Incidents of Domestic Violence (15 Nov. 2019); Memorandum from Commander, III Corps and Fort Hood, subject: Army Family Advocacy Program (AFAP) (23 Aug. 2017); Memorandum from Commander, U.S. Army Garrison Fort Bragg, subject: Garrison Policy Letter #10—Family Advocacy Program (FAP) (14 Jan. 2020); Memorandum from Commander, I Corps and Joint Base Lewis-McChord, subject: Policy on Domestic Violence (1 Jun. 2017); First Armor Division and Fort Bliss, Reg. 27-10, Military Justice para. 5-1 (18 Nov. 2016); Memorandum from Commander, 101st Airborne Division (Air Assault) and Fort Campbell, subject: Policy Letter 7—Command Response to Incidents of Domestic Violence (1 Apr. 2019); Memorandum from Commander, 1st Infantry Division and Fort Riley, subject: Family Advocacy Program (FAP) Policy (31 Aug. 2020); Memorandum from Commander, U.S. Army Maneuver Center of Excellence, subject: Physically Separating Parties Involved in Domestic Violence (23 Sept. 2020).
25. See generally U.S. Dep’t of Army, Reg. 608-18, The Army Family Advocacy Program (30 Oct. 2007).
26. Id. para. 1-8b.
27. U.S. Army Litig. Div., Lit Div Vision, JAGCnet (Sept. 12, 2013, 10:32 AM), https://www.jagcnet2.army.mil/Sites/litigationdivision.nsf/homeContent.xsp?documentId=9C6C6CD80B6B552885257BE4004FEB80 (stating the mission of the Litigation Division, U.S. Army Legal Services Agency: “Keeping Soldiers in the field—and out of the courtroom!”).
Sample DV Response Standard Operating Procedure1
1. Pre-DV Incident: Mandatory Commander Training
a. Commander. Within 45 days of assuming command, commanders must attend spouse and child abuse commander education programs.2
b. Unit. Commanders must also schedule awareness briefings by Family Advocacy Program (FAP) personnel for their Soldiers.3
2. Pre- and Post-DV Incident: Encourage Victim Reporting
a. Installation. Commanders must encourage Soldiers and Family members to report suspected spouse or child abuse to law enforcement.4
b. Abusers. Commanders must encourage abusers to seek services from FAP counseling personnel.5 However, regarding questioning abusers, see paragraph 14. Also, see paragraph 5 regarding law enforcement investigating instances of DV, not commanders.
3. Mandatory and Immediate Notification of Alleged DV to the Report Point of Contact (RPOC)
a. Whether the incident was on- or off-post, the commander must notify the installation’s designated 24-hour RPOC of suspected spouse and child abuse.6 While the RPOC for most installations is the military police (MP) desk, other installations, like Fort Hood, Texas, designate a dedicated, 24-hour hotline as their RPOC.7 The RPOC will notify law enforcement and Child Protective Services, as appropriate.8
b. Many, if not all, brigades and divisions have mandatory serious incident report (SIR) reporting requirements, and instances of DV are usually reportable. Brigade judge advocates and SJAs should ensure that those SIRs for DV are forwarded to the RPOC as well, usually via email, which may reduce the need for multiple reports and better guarantees appropriate reporting. Further, BJAs should ensure the reports appropriately frame facts as known to the command at the time of the report.
4. Submit SIR
a. Initial SIR. The commander should send an SIR to the next higher commander until it is passed to the installation’s operation center, which will send a copy to the provost marshal office (PMO).9 An SIR should have all pertinent information known at the time of reporting.10 (Discretionary Action).
b. Supplemental SIR. If the commander later learns significant facts omitted from or incorrect in the original SIR, the commander should send a supplemental report, including the reason for the inaccuracy in the initial report, e.g., it was the dependent spouse’s version of events.11 (Discretionary Action).
5. Criminal Investigation by Law Enforcement
a. Law enforcement investigates all allegations involving spouse or child abuse.12 (Mandatory Action). If a commander perceives that law enforcement inadequately investigated the allegation of on-post DV, the commander must resist the urge to appoint an investigating officer.13 The commander should, instead, consult with the servicing judge advocate to address the allegations with a multi-functional team, including FAP, victim advocates, and the Directorate of Emergency Services. (Recommended Action). While commanders should not feel forced into helpless inactivity, they must be careful not to overstep their authority and role and accidently affect the situation.14 Unit-level investigations do considerably more harm than good when an investigating officer does not have the appropriate training, maturity, or competency to handle the complexities of investigating DV.
b. On-Post. The military police investigate on-post allegations.15
c. Off-Post. Local law enforcement investigates off-post allegations, and the PMO coordinates with local law enforcement regarding those investigations.16
c. Commanders cannot assume a duty to investigate DV; leave it to professional investigators. While commanders have a duty to maintain good order and discipline, law enforcement investigates allegations of DV; commanders do not.17 (Mandatory Action). Agreeing to investigate DV or alleged theft of a cellphone or passport among family members may hinder the proper law enforcement investigation and may be perceived as assuming the duty of mediating between the Soldier and the spouse. This assumed duty could later be characterized as a negligent undertaking and result in government liability in the event the Soldier commits a criminal act. Instead, the commander should consult the servicing judge advocate regarding available multi-functional resources. (Recommended Action). Further, if discussing the matter with the Soldier is absolutely necessary out of concern for their welfare, see paragraph 14 regarding use of DA Form 3881 and waiver of Article 31 rights. (Mandatory Action).
d. Mental Health Treatment and Risk Assessment by Medical and Social Work Services Personnel. Under the supervision of the medical treatment facility (MTF) commander, FAP conducts assessments of alleged DV victims and abusers.18 Those assessments, which have aspirational timelines, provide guidance to the case review committee (CRC) and the Soldier’s command.19 See paragraph 12 on mandatory Soldier assessment.
6. Issue a Clear, Written MPO and the “Cooling Off Period”
a. Written. Consider whether a no-contact order in the form of a military protective order (MPO) is appropriate under the circumstances or mandatory by installation policy for a cooling off period.20 If so, the commander must provide a no-contact order.21 (Mandatory Action). Any verbal no-contact order should be put into writing using a DD Form 2873 as soon as possible.22 (Discretionary Action).
b. Provide a Barracks Room. If, as a result of the no-contact order or MPO, the Soldier will not be able to stay at the residence with the spouse, consider providing the Soldier a barracks room, if appropriate based on the Soldier’s rank, facilities available, and the circumstances. (Recommended Action).
c. Home Escort. If the Soldier must return to a home where an alleged victim resides to retrieve personal items, and if returning to the home does not violate a civilian protective order (CPO), ensure the Soldier has an escort and coordinate with the alleged victim, preferably so the alleged victim is not present. (Recommended, Discretionary Action).
7. Forward the MPO to the MPs. Upon issuing an MPO, the commander must immediately forward a copy of the order to the PMO, provide a copy to the protected individual within 24 hours, and notify the protected individual of any subsequent changes or termination.23 The PMO submits the information to a national database.24 (Mandatory Action).
8. Encourage Victims to Seek a CPO in State Court. If the commander is speaking directly with an alleged victim who lives off post, encourage the alleged victim to consider seeking a CPO and to consult a victim advocate. (Recommended, Discretionary Action). The best practice is to provide the victim advocate with the alleged victim’s contact information. See paragraph 20 regarding not assuring protection. (Discretionary Action).
9. Ensure Service Members Comply with Applicable CPOs. The commander must take “other actions as appropriate” to ensure compliance with a CPO.25 (Mandatory Action). This may include directing the Soldier to comply with the CPO, modifying the MPO to include terms of the CPO, rescinding the Soldier’s pass privileges off-post or outside the unit area, assigning personnel to watch over the Soldier, or ensuring compliance regarding a specific family situation. (Discretionary Action).
10. Confront Threat to Self or Others—Control Firearms. If a commander comes to the reasoned conclusion, based on direct observation or reports from friends, family, or health care providers, that a Soldier is a threat to self or others, the commander should take action to control the Soldier’s access to privately-owned firearms.26 (Discretionary Action). However, commanders should consult the servicing judge advocate regarding restricting access to off-post, privately-owned weapons, as this is a complex issue and requires separate legal analysis. (Recommended Action).
a. On-Post Firearms. If a Soldier resides on post, a commander must ask Soldiers about any privately-owned firearms stored on post.27 (Mandatory Action). If the commander reasonably concludes the Soldier is a threat to self or others, the commander may order any weapon be stored in the unit’s arms room.28 (Discretionary Action).
b. Off-Post Firearms. Generally, commanders are prohibited by law from infringing on a Soldier’s individual rights by inquiring about their possession of privately-owned firearms stored off-post.29 However, in the case that the commander reasonably concludes the Soldier is a threat to self or others, the commander may ask the Soldier whether they possess any privately-owned weapons that are kept off post.30 If the Soldier has privately-owned weapons stored off-post, the commander may request the Soldier store the weapons in the arms room.31 The commander may not order the Soldier to store the weapons in the arms room.32 If the Soldier declines, the commander may order the Soldier to temporarily be restricted to post.33 (Discretionary Action).
c. Mental Health and Risk-to-Self/Others Evaluation. If a commander concludes that a Soldier is a threat to self or others, the commander should also initiate a command-directed behavioral health evaluation and consult with the servicing judge advocate.34 (Discretionary Action).
11. Initiate Flag. If the PMO identifies a Soldier as a possible subject of an investigation or a suspect, the commander must initiate a suspension of favorable personnel actions (Flag).35 (Mandatory Acton). The effective date of the Flag should be the date of the offense, if known, or the date of initiation of the investigation.36 See paragraph 18 regarding the requirement to complete a DA Form 4833, Commander’s Report of Disciplinary or Administrative Action, following the investigation.
12. Direct FAP Participation. The commander must contact FAP, request a FAP assessment, and direct the Soldier to participate in the FAP assessment.37 (Mandatory Action). Consider sending an escort with the Soldier to all initial FAP assessments. (Recommended Action).
13. Encourage Family Participation. The commander must encourage civilian Family members to participate in FAP treatment programs.38 (Mandatory Action).
14. Ensure Appropriate Rights Advisement
a. Remember—Law Enforcement Investigates. Commanders are not investigators of DV incidents.39 Law enforcement officers receive specialized training in investigating DV.40 A commander attempting to investigate may hinder the law enforcement investigation and be perceived as assuming the duty of an investigator. This could later be characterized as a negligent undertaking or negligent protection of a victim, resulting in bodily harm to the victim and civil liability for the government, especially in the event the Soldier commits a preventable criminal act. Since commanders have a duty to maintain good order and discipline, if law enforcement fails to adequately investigate, the commander should consult their judge advocate to discuss options.41 See paragraph 5 above regarding law enforcement investigations and the commander’s options if the law enforcement investigation is inadequate.
b. Article 31 Rights Waiver. Soldiers may choose to speak with their command about a DV incident—for which commanders are not investigators. Soldiers must participate in a FAP assessment only after their commander ensures they are properly advised of their Article 31(b), Uniform Code of Military Justice, rights against self-incrimination and on how to use a DA Form 3881, Rights Warning Procedure/Waiver Certificate.42
15. Consider a Bar from Post for Civilian Abusers. If the alleged abuser is a civilian and the alleged victim lives on post, commanders should consult their servicing judge advocate in considering whether to request that the garrison commander bar the alleged abuser from post. The installation commander has the inherent authority to permanently or temporarily bar any individual from entering the installation, which includes the basis that the individual’s continued presence on the installation represents a threat to the safety of any adult or child living on the installation.43 (Recommended Action).
16. Attend the CRC. Commanders must attend the CRC case presentations and comply with CRC recommendations or otherwise provide written nonoccurrence through the chain of command to the MTF commander.44
17. Consult the Servicing JA. The commander should discuss the alleged DV with the servicing military justice advisor, especially when the Soldier was convicted in a civilian court or at a general or special court-martial, triggering implications under the Lautenberg Amendment to the Gun Control Act of 1968.45 (Discretionary Action).
18. Complete DA Form 4833. At the conclusion of law enforcement investigations, the PMO initiates a DA Form 4833 and transmits it to the commander.46 The commander must complete the form listing the action taken against the Soldier, if any.47 The PMO submits the information to a national database.48
19. Comply with Local Policy. In addition to the mandatory duties stated in Army Regulation (AR) 608-18, the commander must also comply with all mandatory directives in applicable local policy regarding DV.49
20. Inappropriate Actions Which Increase Litigation and Liability Risk
a. Do Not Respond to the Scene in Place of Law Enforcement. Commanders are not investigators of DV allegations.50 Responding to the scene may hinder a proper law enforcement investigation and may be perceived as assuming a duty and later be characterized as a negligent undertaking. The commander should contact law enforcement.
b. Do Not Assure Victims the Command Will Protect Them from Harm. A spouse may be scared and upset, but it is inappropriate for a commander to assure the spouse, “We’ll protect you. My sergeants will ensure that your spouse does not come near you until he receives counseling.” Assuring protection may be perceived as assuming the duty of protecting the spouse, which could later be characterized as a negligent undertaking and result in government liability in the event the Soldier commits a criminal act.51 Further, the commander’s assurances to the spouse could provide a false sense of security which the commander has no plausible, legal way to effectuate, short of restraint or confinement.
c. Do Not Ignore Intentions of DV. If a Soldier makes an offhanded remark about killing their spouse, the commander should take these remarks seriously and direct the Soldier to undergo a behavioral health assessment immediately. The commander should also immediately consult with their judge advocate. Dismissing these remarks as “just blowing off steam” could be seen as having notice of a premeditated criminal act and failing to report or take reasonable action to prevent the harm could result in government liability.52
d. Do Not Assume an Allegation of DV Is Accurate. Soldiers must be proven guilty prior to any punishment.53
e. Do Not Assume an Allegation of DV Is Inaccurate. Follow mandatory policies contained in this standard operating procedure.
1. Sources are provided for practitioners’ reference.
2. U.S. Dep’t of Army, Reg. 608-18, The Army Family Advocacy Program para. 1-8b(1) (30 Oct 2007) (RAR 13 Sept. 2011) [hereinafter AR 608-18]; U.S. Dep’t of Def., Instr. 6400.06, Domestic Abuse Involving DoD Military and Certain Affiliated Personnel para. 22.214.171.124. (21 Aug. 2007) (C4, 26 May 2017) [hereinafter DoDI 6400.06].
3. AR 608-18, supra note 2, para. 1-8b(2).
4. Id. paras. 1-8, 3-4. Recommend this encouragement be implemented through command policy letters. However, recommend brigade judge advocates/staff judge advocates review those letters to ensure they do not assume additional duties or present a civil litigation risk.
5. Id. para. 3-25. See also DoDI 6400.06, supra note 2, para. 126.96.36.199. Again, recommend this be incorporated into a command policy letter, with the previously listed caveats.
6. AR 608-18, supra note 2, paras. 1-8b(4), 3-3 (the Garrison staff designates the report point of contact (RPOC)). See id. para. 1-8a(5) (unit/company commanders must report suspected spouse or child abuse to the RPOC). See also DoDI 6400.06, supra note 2, paras. 188.8.131.52., 184.108.40.206.
7. Fort Bragg, Joint Base Lewis-McChord (JBLM), Fort Campbell, and Fort Riley use the Military Police desk at the PMO as their RPOC. Memorandum from Commander, U.S. Army Garrison Fort Bragg, subject: Garrison Policy Letter #10—Family Advocacy Program (FAP) (14 Jan. 2020); Memorandum from Commander, I Corps and Joint Base Lewis-McChord, subject: Policy on Domestic Violence (1 Jun. 2017) [hereinafter JBLM DV Policy]; Memorandum from Commander, 101st Airborne Division (Air Assault) and Fort Campbell, subject: Policy Letter 7—Command Response to Incidents of Domestic Violence (1 Apr. 2019) [hereinafter Fort Campbell DV Policy]; Memorandum from Commander, 1st Infantry Division and Fort Riley, subject: Family Advocacy Program (FAP) Policy (31 Aug. 2020) [hereinafter Fort Riley FAP Policy]. As of the publication of this article, Fort Hood’s RPOC is (254) 287-CARE, and the hotline is available 24 hours a day, seven days a week. Memorandum from Commander, III Corps and Fort Hood, subject: Army Family Advocacy Program (AFAP) (23 Aug. 2017) https://home.army.mil/hood/application/files/9015/5309/5495/AFAP.pdf [hereinafter Fort Hood FAP Policy].
8. AR 608-18, supra note 2, para. 3-12.
9. U.S. Dep’t of Army, Reg. 190-30, Military Police Investigations para. 4-4d (1 Nov. 2005) [hereinafter AR 190-30] (for a sample serious incident report (SIR), see figure 9-1); U.S. Dep’t of Army, Reg. 190-45, Law Enforcement Reporting para. 4-16, 4-18g(5), 8-1a (27 Sept. 2016) [hereinafter AR 190-45].
10. AR 190-45, supra note 9, para. 8-1b; AR 190-30, supra note 9, para. 9-2.
11. In the event of subsequent civil litigation, a dependent spouse may use the SIR to prove what the Army knew and when. A follow-up SIR provides updated information in writing to higher commanders and documents the correction for potential future litigation, thus eliminating the potential of a finder of fact making an erroneous finding that results in liability. See AR 190-45, supra note 8, para. 9-3b.
12. U.S. Dep’t of Army, Reg. 195-2, Criminal Investigation Activities app. B (21 July 2020) [hereinafter AR 195-2]; DoDI 6400.06, supra note 2, para. 6.1.1., 6.2.
13. Supra note 12.
15. AR 608-18, supra note 2, para. 1-8j(2).
16. Id. para. 1-8j(3).
17. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy para. 4-4a (24 July 2020) [hereinafter AR 600-20]; AR 195-2, supra note 12, app. B.
18. AR 608-18, supra note 2, paras. 1-8f, 2-4, 3-8, app. C.
19. Id. app. C.
20. Id. para. 1-8b(8); AR 190-45, supra note 9, para. 4-17; Fort Bragg, JBLM, Fort Benning, Fort Bliss, and Fort Riley all have mandatory 72-hour cooling off periods. Memorandum from Commander, U.S. Army Garrison Fort Bragg, subject: Installation Policy Letter #40—Command Response to Incidents of Domestic Violence (15 Nov. 2019) [hereinafter Fort Bragg DV Policy]; JBLM DV Policy, supra note 7; Memorandum from Commander, U.S. Army Maneuver Center of Excellence, subject: Physically Separating Parties Involved in Domestic Violence (23 Sept. 2020) [hereinafter Fort Benning DV Policy]; First Armor Division and Fort Bliss, Reg. 27-10, Military Justice para. 5-1 (18 Nov. 2016) [hereinafter Fort Bliss MJ Reg.]; Fort Riley FAP Policy, supra note 7. Fort Campbell and Fort Stewart have no mandatory cooling-off period. Fort Campbell DV Policy, supra note 7; Memorandum from Commander, Third Infantry Division and Fort Stewart, subject: Family Advocacy Program (not dated). See also DoDI 6400.06, supra note 2, para. 6.1.2.
21. AR 608-18, supra note 2, para. 1-8b(8).
22. Id. para. 3-21d(3)(h).
23. Id. para. 3-21d(3)(a).
24. AR 190-45, supra note 9, para. 4-17.
25. AR 608-18, supra note 2, para. 1-8b(8). See also DoDI 6400.06, supra note 2, para. 220.127.116.11.
26. Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. 111–383, §1062, 124 Stat. 4137, 4363 (codified as amended at National Defense Authorization Act for Fiscal Year 2013, Pub. L. 112–239, §1057, 126 Stat. 1632, 1938); All Army Activities Message, 063/2013, 252019Z Mar. 13, U.S. Dep’t of Army, subject: Control and Reporting of Privately Owned Weapons [hereinafter ALARACT 063/2013].
27. See the applicable Army regulation regarding the physical security of arms (on file with author).
28. §1057, 124 Stat. 4137, 4363; ALARACT 063/2013, supra note 26.
29. Supra note 28.
31. ALARACT 063/2013, supra note 26.
35. U.S. Dep’t of Army, Reg. 600-8-2, Suspension of Favorable Personnel Actions (Flag) paras. 2-1e, 2-2h (5 Apr. 2021).
36. Id. para. 2-2h.
37. AR 608-18, supra note 2, para. 1-8b(5).
38. Id. paras. 1-8b(12), 3-28.
39. Id. para. 1-8j. See also AR 195-2, supra note 12, app. B.
40. AR 608-18, supra note 2, para. 1-8j(6), (10).
41. AR 600-20, supra note 17, para. 4-4a.
42. AR 608-18, supra note 2, para. 1-8b(7).
43. Id. para. 3-22d. Violation of a bar order is a federal crime. 18 U.S.C. § 1382.
44. AR 608-18, supra note 2, para. 1-8b(6), (9), (10).
45. AR 608-18, supra note 2, para. 1-8b(14); AR 600-20, supra note 17, para. 4-22c(1); 18 U.S.C. § 922(g)(1)–(9). Administrative action or nonjudicial punishment under Article 15, Uniform Code of Military Justice, is not considered a qualified conviction under the Lautenberg Amendment. See AR 600-20, supra note 17, para. 4-22b(2); 18 U.S.C. § 922(g)(1)–(9). See also DoDI 6400.06, supra note 2, paras.6.1.4, 6.4.
46. AR 190-45, supra note 9, para. 4-7b.
47. Id. para. 4-7c.
49. AR 608-18, supra note 2, para. 1-8b. See also Fort Bragg DV Policy, supra note 20; Fort Hood FAP Policy, supra note 7; JBLM DV Policy, supra note 7; Fort Bliss MJ Reg., supra note 20; Fort Campbell DV Policy, supra note 7; Fort Riley FAP Policy, supra note 7; Fort Benning DV Policy, supra note 20.
50. AR 608-18, supra note 2, para. 1-8j.
51. See Cuadrado-Concepcion v. United States, 2020 U.S. Dist. LEXIS 143040 (S.D.C. Ga. 2020).
52. See Wilburn v. United States, 616 F. App’x 848 (6th Cir. 2015).
53. U.S. Dep’t of Army, Reg. 27-10, Military Justice para. 5-67a (20 Nov. 2020).