Legal Considerations and Law Enforcement
The content of this appendix was extracted from LTC Patrick A. Barnett, (Ed), Domestic Operational Law Handbook for Judge Advocates, Center for Law and Military Operations, 20 July 2009. It was accessed at "http://www.jagcnet.army.mil/clamo".
Posse Comitatus Act Restrictions
Restrictions of the Posse Comitatus Act (PCA) as they apply to participation by the military in civilian law enforcement activities are outlined by Title 10 U.S. Code (U.S.C), Sections 371-375. These restrictions are divided into three major categories: (1) use of information, (2) use of military equipment and facilities, and (3) use of military personnel. Department of Defense Directive (DODD) 5525.5 further divides the restrictions on the use of Department of Defense (DOD) personnel in civilian law enforcement activities into categories of direct assistance, training, expert advice, operation or maintenance of equipment, and other permissible assistance. See Figure I-1, below.
In addition to the above categories, 10 U.S.C. Sections 376 and 377 provide further limitations on the provision of military support to civilian law enforcement. 10 U.S.C. Section 376 provides an overarching restriction in the event "such support will adversely affect the military preparedness of the United States." The secretary of defense directed the secretaries of the military departments and the directors of the defense agencies to ensure that approval authority for the disposition of equipment to civilian law enforcement agencies is vested in those officials who can properly assess the impact the disposition will have on military preparedness and national security.
Title 10 U.S.C. Section 377 requires civilian law enforcement agencies to reimburse DOD for support provided as required by the Economy Act or other applicable law. Civilian law enforcement agencies do not have to provide reimbursement for support under this statute if the support: (1) is provided in the normal course of military training or operations, or (2) results in a benefit to DOD that is substantially equivalent to that which would otherwise be obtained through military training or operations. Waiver authority for reimbursements not required by law resides with personnel. This authority may be delegated to the secretaries of the military departments and the directors of the defense agencies (or designees) on matters within their approval authority.
Use of Information Collected During Military Operations
The use of information collected during military operations is codified in Title 10 U.S.C. Section 371 and implemented by the secretary of defense in Enclosure 2 of DODD 5525.5. The sharing of intelligence information has taken on crucial importance after September 11, 2001. The Homeland Security Act of 2002 tasked the Secretary of the Department of Homeland Security with establishing procedures to share information with local, State and Federal entities. The president is to ensure that the procedures apply to "all agencies of the Federal Government."
Under Title 10 U.S.C. Section 371, the secretary of defense may provide information collected during the normal course of military operations to federal, state, and local law enforcement agencies if the information is relevant to a violation of federal or state law under the jurisdiction of these officials. The secretary of defense shall, to the maximum extent possible, take into account the needs of civilian law enforcement officials when planning and executing military training and operations. Further, Section 371 provides that the secretary of defense shall ensure, to the extent consistent with national security, that intelligence information held by DOD and relevant to drug interdiction and other civilian law enforcement matters is promptly provided to the appropriate civilian law enforcement officials.
Enclosure 2 of DODD 5525.5 implements the above guidance with some additional restrictions. Military departments and defense agencies are generally encouraged to provide law enforcement officials any information collected during the normal course of military operations that may be relevant to a criminal violation. While the secretary of defense shall take into account the needs of civilian law enforcement officials when planning and executing military training and operations in accordance with 10 U.S.C. Section 371 above, the planning or creation of missions or training for the primary purpose of aiding civilian law enforcement officials is prohibited. Law enforcement officials may accompany regularly scheduled training flights as observers, but point to point transportation and training flights for civilian law enforcement officials are not authorized. Additionally, the handling of all such information must comply with DODD 5240.1, Activities of DOD Intelligence Components that Affect U.S. Persons; DODD 5200.27, Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense; and DOD 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons.
Use of Military Equipment and Facilities
The loan or lease of military equipment to civilians is a difficult legal area. Each military service has implemented its own regulations in addition to DODD 5525.5. The Army Regulation on point is AR 700-131. 10 U.S.C. Section 372 and Enclosure 3 of DODD 5525.5 address the use of military equipment and facilities by civilian law enforcement authorities. Section 372(a) allows the secretary of defense to make available equipment (including associated supplies and spare parts), base facilities, and research facilities of the DOD to any federal, state, or local civilian law enforcement official for law enforcement purposes. The provision of equipment and facilities must be made in accordance with all other applicable law. Enclosure 3 of the DODD implements this provision and allows military departments and defense agencies to make equipment, base facilities, or research facilities available to federal, state, or local law enforcement authorities if the assistance does not adversely affect national security or military preparedness.
Approval authority under DODD 5525.5 varies based on the type of equipment requested, the reason for the request, and whether the equipment will be loaned or leased. The following is a list of the approval authorities for various types of equipment and facilities:
Service regulations supply additional guidance. For example, security bonds are often required before the loan or lease of equipment. Approval authorities may vary depending upon the implementing service regulation.
10 U.S.C. Section 372 provides additional guidance for chemical and biological incidents. Under Section 372(b), the secretary of defense may make training facilities, sensors, protective clothing, antidotes and similar items available to federal, state, or local law enforcement or emergency response agencies to prepare for or respond to an emergency involving chemical or biological agents. Before making these materials available, however, the secretary of defense must make a determination that the items are not reasonably available from another source.
Participation of DOD Personnel in Civilian Law Enforcement Activities
The federal courts have enunciated three tests to determine whether the use of military personnel violates the PCA. If any one of these three tests is met, the assistance may be considered a violation of the PCA. The first test is whether the actions of military personnel are "active" or "passive." Only the direct, active use of military personnel to enforce the laws is a violation of the PCA. The second test is whether the use of military personnel pervades the activities of civilian law enforcement officials. Under this test, military personnel must fully subsume the role of civilian law enforcement officials. The third test is whether the military personnel subjected citizens to the exercise of military power that was regulatory, proscriptive, or compulsory in nature. A power "regulatory in nature" is one which controls or directs. A power "proscriptive in nature" is one that prohibits or condemns. A power "compulsory in nature" is one that exerts some coercive force.
As previously mentioned, in implementing the guidance contained in 10 U.S.C., Chapter 18, DODD 5525.5 divides the PCA restrictions regarding the use of military personnel to assist civilian law enforcement into five categories: (1) direct assistance, (2) training, (3) expert advice, (4) use of DOD personnel to operate or maintain equipment, and (5) other permissible assistance.
DOD personnel involvement in support to civilian law enforcement will often be subject to intense scrutiny, such as occurred following the First Army's and the 82d Airborne Division's support in the aftermath of Hurricane Katrina, and prior to that, the standoff between the Branch Davidians and the federal government in Waco, Texas. In advising commanders on the permissible use of military personnel in support of civilian law enforcement activities, JAs must also consider possible legal ramifications of PCA violations. Evidence may be excluded from use at trial and the military may be sued.
Prohibited direct assistance
Direct assistance and participation by military personnel in the execution and enforcement of the law is the heart of the prohibition of the PCA. Impermissible direct assistance by military personnel in civilian law enforcement activities is codified in 10 U.S.C. Section 375 and is implemented as DOD policy by DODD 5525.5. Prohibited direct assistance by military personnel includes:
Permissible direct assistance
There are several forms of direct assistance by military personnel that are permitted under the PCA. The first type of permitted direct assistance is action taken for the primary purpose of furthering a military or foreign affairs function of the United States. This category is often referred to as the "Military Purpose Doctrine" and covers actions the primary purpose of which is to further a military interest. While civilian agencies can receive an incidental benefit, this section should be construed narrowly and cannot be used as a subterfuge for getting around the PCA. For example, the scheduling of a military exercise for the sole purpose of benefiting a civilian law enforcement agency is contrary to the intent of the military purpose doctrine. Military actions under the military purpose doctrine include:
It is important to note that use of military forces in the defense of the U.S. is not support to civilian law enforcement agencies. Rather, it is homeland defense under the president's authority as commander in chief under Article II of the Constitution. The use of military forces in a national defense role is not subject to the PCA and other restrictions on military participation in law enforcement.
A second type of direct assistance that may be permitted is action that falls under the "emergency authority" of the United States. These actions are taken pursuant to the inherent authority of the federal government under the Constitution. Actions permitted in accordance with this authority are those necessary to preserve public order and to carry out governmental operations within U.S. territorial limits, or otherwise in accordance with applicable law. In such circumstances, force may be used if necessary.
"Emergency authority" is reserved for extremely unusual circumstances. Further, it will only be used under the guidance of DODD 3025.12, Military Assistance for Civil Disturbances (MACDIS). DODD 3025.12 states: "Military Forces shall not be used in MACDIS unless specifically authorized by the president, except in the following emergency circumstances:
Presidential approval is not a prerequisite to the use of military forces in these two limited circumstances. However, DOD officials and military commanders must use all available means to obtain presidential authorization through their appropriate chains of command while applying emergency authority.
Civil disturbance statutes
The third type of permitted direct assistance by military forces to civilian law enforcement is action taken pursuant to DOD responsibilities under the Insurrection Act, 10 U.S.C. Sections 331-334. These statutes contain express exceptions to the PCA and they relate to the use of military forces with respect to insurgency, domestic violence, or conspiracy that hinders the execution of state or federal law in specified circumstances. Actions under this authority are governed by DODD 3025.12. The Insurrection Act permits the president to use the armed forces to enforce the law when:
Title 10 U.S.C. Section 334 requires the president to issue a proclamation ordering the insurgents to disperse within a certain time before he can use the military to enforce the laws. The president issued such a proclamation during the Los Angeles riots.
Other statutory authority
There are several statutes, other than the Insurrection Act, that provide statutory authority for the military to assist civilian law enforcement agencies in executing the laws. These statutes permit direct military participation in civilian law enforcement, subject to the limitations within the respective statutes. This section does not contain detailed guidance. Specific statutes and other references must be consulted before determining whether military participation is permissible. These statutes include the following:
Rules for the use of Force for Federal Forces
The Standing Rules for the Use of Force (SRUF) provide the operational guidance and establish fundamental policies and procedures governing actions taken by DOD forces performing civil support missions (e.g., military assistance to civil authorities and military support for civilian law enforcement agencies) and routine service functions (including antiterrorism force protection) within the U.S. and its territories. It also applies to land-based homeland defense missions occurring within the U.S. and its territories. The SRUF also apply to DOD forces, civilians and contractors performing law enforcement and security duties at all DOD installations worldwide, unless otherwise directed by the secretary of defense. The SRUF supersede Chairman of the Joint Chiefs of Staff Instruction 3121.02, Rules for the Use of Force (RUF) for DOD Personnel Providing Support to Law Enforcement Agencies Conducting Counterdrug Operations in the United States, the rules for the use of force in the DOD Civil Disturbance Plan (Garden Plot), and the use of force guidance contained in DODD 5210.56, Enclosure 2.
The SRUF apply to Title 10 forces performing missions both for homeland defense and defense support to civil authorities. These rules do not apply to National Guard forces in either state active duty or Title 32 status. JAs should coordinate with their National Guard counterparts when operating in a joint environment to confirm the RUF the National Guard is using.
Service members need to understand the legal, policy and practical limitations for the use of force. The use of force for domestic mission accomplishment is constrained or limited by federal law and the SRUF.
While there are some very significant differences, the development, training, and application of the RUF and the rules of engagement for overseas contingency operations can be similar. The SRUF provide the template for training RUF for domestic operations. Development of hypothetical scenarios will assist in posing the ultimate question of whether or not the service member may use force, up to and/or including deadly force, against someone or something. Often in training scenarios, the solution is not found in the applicable RUF but rather in the rules for when a service member can use force in self-defense and identifying either a hostile act or demonstration of hostile intent. It is imperative to ensure commanders, as well as the service members who execute the commander's plans, understand the potential limits on self-defense when operating as part of a unit. Unit commanders always retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unless otherwise directed by the unit commander, service members may exercise individual self-defense in response to a hostile act or demonstrated hostile intent. When individuals are assigned and acting as part of a unit, individual self-defense becomes a subset of unit self-defense, and the unit commander may limit individual self-defense by members of the unit.
Use of force practice is one of the few areas in which the legal competence of the JAs can potentially have life or death consequences for service members and civilians. Therefore, it is imperative that JAs understand and apply legal and practical considerations when practicing in this area. This chapter will discuss the role of JAs in use of force, the practical realities involved in use of force incidents that are often not included in legal references, the legal standard for Federal use of force, the existing Army policies on use of force, the potential legal liability involved in use of force, as well as other issues.
Many service members have not been trained on domestic law applicable to the use of force and, as a consequence, do not understand many of the policy requirements imposed by DOD and Department of the Army decisions. Additional key concepts such as hostile act and hostile intent are often misapplied or used interchangeably. As such, it is critical that JAs understand the terminology and are capable of training these concepts in a straightforward manner. In addition, very few service members receive training on the RUF or the legal and policy aspects of the investigations and litigation that may follow a use of force incident. This increases the challenge for JAs preparing units for domestic operations.
The JA must also consider the nature of the threat that our service members might face. Service members have to try to differentiate between aggressors employing various levels of force threats, those who do not present a direct threat but against whom force is authorized, and innocent civilians.
An attacker will generally have the service member at a disadvantage. He will almost always have the initiative and sometimes will have the element of surprise. One of the accepted principles of violent confrontations is that the attacker's "action" will defeat a "reaction" of comparable speed by the service member.
SRUF will normally include the following:
Service members, their leaders, and the planners who draft the RUF for domestic operations face potential personal liability for any unlawful use of force by a service member during a domestic operation. This includes federal and state civil and criminal proceedings after an incident. In addition, such incidents are often accompanied by a variety of investigations that can result in adverse administrative consequences. Service members could be held criminally liable for unconstitutional or illegal use of force before a court-martial, a Federal District Court, and in some cases a state court. Service members and commanders involved in use of force incidents will probably have less legal and practical protection than their counterparts in Federal law enforcement. The case law defining the role of service members using force during homeland security operations is extremely limited.
Rules for the Use of Force for the National Guard
The National Guard is a state government entity, except when called or ordered to federal active duty. The effect of this Constitutionally-derived status is perhaps greatest in the RUF for the National Guard. The policies of the DOD and service regulations governing RUF apply to elements of that Department, but not to the states. As a result, the law that is the basis for National Guard RUF is the criminal law of the state in which a National Guard unit is performing the mission.
Most National Guard operations in support of civil authorities are in support of state civil authorities and are undertaken on a state-funded basis, usually referred to as "state active duty" (SAD). These types of operations include relief from natural disasters, quelling of or providing security during civil disturbances and assistance to civil authorities during other state emergencies, such as strikes at state institutions. An exception would be the 2001/2002 National Guard airport security mission (hereinafter airport security mission). This operation was performed in Title 32 status. As explained in detail in Chapter 2, both SAD and Title 32 statuses are non-federal statuses, to which state law applies. All 54 States and territories secured airports with National Guard personnel and applied its own criminal law. Consequently, over 50 different RUF were used in the airport security mission. Although most RUF addressed similar subjects, the specific implementation of these subjects varied from state to state.
When the National Guard executes Title 32 or SAD mission that utilizes RUF, the subjects appropriate for the RUF are derived from the mission operation plan or operation order (OPLAN/OPORD). The RUF covers core state criminal law subjects such as the right of self defense, including the retreat doctrine, necessary warning, proportionality, and location issues, for instance the defender's home or work place. The RUF should also address the right to carry and discharge firearms, the authority of National Guard personnel as peace officers (based on state law), and the authority for apprehension, search, and seizure. Whether, and the extent to which, these basic RUF subjects are included in a given OPLAN/OPORD is a mission-dependent decision.
Subjects appropriate in all RUF include:
10 U.S.C. Section 331-335, The Insurrection Act.
10 U.S.C. Section 2667, Leases: Non-Excess Property of Military Departments.
18 U.S.C. Section 231, Civil Disorders.
18 U.S.C. Section 1382, Entering Military, Naval, or Coast Guard Property.
18 U.S.C. Section 1385, The Posse Comitatus Act (PCA).
28 U.S.C. Section 1346, 2671-2680 - The Federal Tort Claims Act.
31 U.S.C. Section 1535, Agency Agreements.
Executive Order 12656, Assignment of Emergency Preparedness Responsibilities.
DODD 3025.12, Military Assistance for Civil Disturbances, 04 February 1994.
DODD 3025.15, Military Assistance to Civil Authorities, 18 January 1997.
DODD 5111.13, Assistant Secretary of Defense for Homeland Defense and Americas' Security Affairs.
DODD 5525.5, DOD Cooperation with Civilian Law Enforcement Officials, 15 January 1986.
Joint Pub 3-28, Civil Support (14 September 2007).
Army Regulation 700-131, Loan and Lease of Army Materiel (23 August 2004).
National Guard Regulation 500-1/ANGI 10-8101, National Guard Domestic Operations (13 June 2008).
FM 3-07, Stability Operations and Support Operations (06 October 2008).
FM 3-19.15, Civil Disturbances (18 April 2005).