Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com.
Living in Los Angeles, the term “restraining order” is often bandied about in the context of celebrities: “Celebrity ‘A’ Gets Restraining Order Against Stalker” or “Celebrity ‘B’ Gets Restraining Order Against Aggressive Paparazzo.” The tabloids are only too eager to breathlessly report about the latest court filing.
The day-to-day reality of restraining orders is far more distasteful. Think angry ex-spouses, feuding neighbors, and, in many cases, domestic violence victims. It’s a nasty field of law that frankly rivals divorce and child custody in terms of areas I avoided like the plague in law school.
Unfortunately, it is also a reality that some security clearance holders are forced to confront. Whether you hold the restraining order or you are the restrained party, here are some basics you should know about the impact on your security clearance:
Criminal vs. Civil Orders
In most states, restraining orders come in both the criminal and civil varieties. The former is typically reserved for domestic violence and similar cases, while the latter is reserved for your garden variety (non-violent) family and neighbor quarrels. The first reason you need to know the difference is because of how these cases are reported on the SF-86 form. If you are a restrained party under a criminal restraining order, the existence of the order must be disclosed under Section 22.3 (“Is there currently a domestic violence protective order or restraining order issued against you?”). Any violations of that restraining order would be viewed as independent instances of criminal conduct.
On the other hand, whether you hold a civil restraining order or are the restrained party under a civil order, the existence of that case must be disclosed under Section 28 of the SF-86 (“Have you been a party to any public record civil court action not listed elsewhere on this form?”). Note the nuance: in criminal cases, only the restrained party need report the item, whereas in civil cases both parties must report it. That may seem like a pointless distinction until you consider that not all civil restraining order cases are flattering reflections of the restraining order holder. Sometimes even the restraining order holder can appear to be an agitator.
The second reason why you need to understand the difference between criminal and civil orders is because of what a criminal restraining order represents. In order for a criminal restraining order to issue, the restrained party must generally have been first arrested and/or convicted of a criminal offense. If that offense was a felony or resulted in conviction, it must be listed on the SF-86 – no matter how old.
It’s Not Just the Restraining Order That Matters
As I alluded to earlier, the mere fact that you have or hold a restraining order is not necessarily dispositive of a security-related issue. Rather, it is the conduct – your conduct – that is at issue, as is the company you keep. If, for example, you are a battered woman who obtained a criminal restraining order against your abusive ex-husband, it is almost impossible to conceive of any way in which this could become a security concern. But what about a situation where the restraining order is issued against the batterer and the victim violates it? In some states, that could be considered a crime.
Or what about a case where the restrained party is a spouse accused of attacking the other spouse after discovering infidelity? Does the fact of the infidelity create a potential security concern for the spouse holding the restraining order?
I won’t belabor the details of these (yes, real) cases other than to simply say this: context matters. So if you ever find yourself on either end of a restraining order, think of how your actions will look to an objective third party potentially years down the road. The key descriptor you are aiming for is “reasonable.”
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
