CA Wing Newsletter article on posse comitatus

Started by RiverAux, December 17, 2006, 03:58:55 PM

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RiverAux

The Fall 2006 issue of the California Wing Newsletter (9mb file size)http://www.cawg.cap.gov/ec/Eagle%20Call%20Fall%202006.pdf has a very interesting article on posse comitatus and the CAP.  I'm actually a little surprised they printed it as the author isn't a lawyer and the fact that he basically seems to be saying that unless the CAP member is on an AFAM, despite what it says in CAP regulations, CAP members on CAP duty may be obligated to aid law enforcement in certain situations. 

Eclipse

OMG!  This is a >WING< level "newsletter"?  As in "the voice of the Wing Commander?   :o

Its more than 1/2 ads, only about 4 articles are actually >about< CAP, and features several opinion pieces.

So, is that how it works in CAWG?   Start the FUD at the top to insure everyone is disquieted?

NOTF would be proud. 

"That Others May Zoom"

DNall

It doesn't matter that he isn't a lawyer. Most attorneys aren't specialized in this area of law & have no special powers to know anything more about it then we do.

I thought it was kind of disingenous for him at the end not to explain that counter-drug is THE CLEAREST exception where ALL of the military is allowed to directly assist law enforcement.

It's an interesting take. It's the same argument I made about a medically trained member (EMT) being required by state law to render medical aide to the extent of their training or lose thier lisence & be subject to criminal charges & civil liability - but CAP regs say only first aid cause we got no medical malpractice coverage on either corporate OR AFAMs.

In Texas if you see a police officer wrestling with a person & the cop asks for help, that is legal deputization, & you are legally obligated to jump in. Just like the medical, it is to the extent of your abilities. Which means if you have a medical issue that limits you than you are only obligated within those limits. A member of the military bound by PC would be able to claim that as a limitation & avoid problems. Though lets be honest, people in the military on-duty who see a LE officer flighting for his life & asking for their help - who's not jumping into that & letting the legal pieces fall where they may after the fact? Just use your common sense!

This whole argument doesn't matter though, cause it doesn't relate in the slightest to teh PC argument going on in CAP. What the corporate folks are arguing is that PC doesn't apply to CAP when not on an AFAM, therefore we are free to accept direct LE missions from local authorities as corporate missions. Things like direct surveillence & tracking of suspects, which is a very clear violation of PC. You might be able to make that argument for an aircrew, but what's good for one is good for all, & do you really want the same thing applying to ground team members? The other side is the plane's overall maint is paid & monitored by the AF, AF personnel are involved in the oversight & administration of the plane, training is funded... NHQ personnel, though paid by the CAP corp, are paid with AF appropriated funds.... basically if AF money or people ever touch it in any way then it is bound by PC. Why you may ask? Well, the truth in that circumstance is that you the aircrew & CAP owned plane may not be violating PC by taking on such a LE mission, but by doing so you've placed the AF in violation & legally speaking they should not be able to fund CAP anymore. So you can see I hope that it's a matter of big risk for very tiny selfish gain.

Personally, I think CAP should take steps w/ AF to become more completely bound by PC as though we are the same as AFRes. The reason I say that is I really don't want CAP members making decisions about use of force, testifying in court cases as participants in LE, or in any way using the color of authority (looking official in uniform) to enforce things on the public. That gets VERY VERY hairy VERY fast, and I don't want our people anywhere close to it. I'd like to shore up the duality on this legal point to limit the confusion to our members on a critical issue. If nothing else, you recall how CAP is not bound by law to comply with the Americans w/ Disabilities Act, but chose to voluntarily comply? We should at very least do the same w/ PC on the missions where there is any doubt. By the way, notifying LE of a crime you've observed is NOT enforcement of the law & you are required to do so.

Hawk200

Kinda leaves me wondering. LEt me see if I can put this in a nutshell. Posse Comitatus means a citizen can be requested for assistance by LEO's, however, CAP cannot be deputized in the same manner while functioning as a member in an official capacity.

Another way: a cop can ask anyone to help, but he can't ask you to help just because you're in a uniform.

Is that about it?

RiverAux

I think that this is a much different argument than the one involving AF planes/AFAMs, etc. that DNall brought up, but it is one that is just as valid. It is also somewhat related to the recent change to CAP regulations that made it clear that CAP members are supposed to follow the law in their states regarding reporting possible incidents of child abuse in the cadet program to the proper local or state authorities. 

The issue in both these cases is that most of the time when CAP is going about its normal business we are no different in the eyes of the law than any other citizens who are members of a club.  However, CAP has a regulation limiting participation in law enforcement that, as the article points out, that may put the CAP member at risk of violating the law by not providing assistance when required if they follow the CAP regulation. 

There are differences of course between CAP members participating in a law enforcement support mission and some of the examples of the article where situations come up that may put the CAP member under certain obligations. 

Either CAP is going to have to make its regulations more clear on this issue, or, as DNall suggests, the law needs to be changed to make us the AF Aux full-time and that we are always subject to PCA (unless you believe the Attorney General's opinion saying that we aren't since we aren't members of the Air Force even though we support them). 

Eclipse

Quote from: Hawk200 on December 17, 2006, 06:47:18 PM
Kinda leaves me wondering. LEt me see if I can put this in a nutshell. Posse Comitatus means a citizen can be requested for assistance by LEO's, however, CAP cannot be deputized in the same manner while functioning as a member in an official capacity.

Another way: a cop can ask anyone to help, but he can't ask you to help just because you're in a uniform.

Is that about it?

Quote from: WikipediaIn common law, posse comitatus (Latin, "county force", meaning a sort of local militia) referred to the authority wielded by the county sheriff to conscript any able-bodied male over the age of fifteen to assist him in keeping the peace or to pursue and arrest a felon; compare hue and cry. It is the law enforcement equivalent of summoning the militia for military purposes.


Quote from: Wikipedia
The Posse Comitatus Act of 1878 was a direct response to the increasing use of the military for civilian purposes in the Reconstruction period following the Civil War. On many occasions troops had been used to quell civil disturbances, to help form governments in the southern states, and to enforce civil laws. This issue came to a head when Rutherford B Hayes won the disputed presidential election of 1876. Accusations were quickly made that troops sent to the southern states to act as a posse comitatus for federal marshals at the polls assisted in providing the President with the essential votes. In 1878 a Democrat controlled House of Representatives passed an army appropriations bill (20 Stat 145, 152) which contained language expressly prohibiting the use of the army as a posse comitatus. The act therefore rejected the Mansfield Doctrine that troops could be used in a civilian capacity as long as they were subject to civilian law, and equated the use of troops with martial law.

The text of the act has essentially remained unaltered except for the addition of the Air Force in 1956 (70A Stat 626 (1956), however Congress has created expansions to the number of statutory exceptions to the act (e.g., 10 USC 331, 10 USC 332 and 10 USC 371-82).


Quote from: Wikipedia
The Posse Comitatus Act 1878 embodies the principle of the separation of the military from civilian law enforcement, a principle that has been an essential component of Anglo-American legal history since the Magna Carta. However, no conviction of a violation of 18 USC 1385 has ever been carried out. There are demands for amendments to or repealing of the Act.

For more detail, including exceptions, see here:
http://en.wikipedia.org/wiki/Posse_comitatus_(common_law)#The_Posse_Comitatus_Act


"That Others May Zoom"

Major Carrales

John Kachenmeister is about to post on this matter, he is a law enforcement guru and his words on the matter should be taken into account...


Some of his insight at CAPBlog should be required reading.

Kach...go ahead...
"We have been given the power to change CAP, let's keep the momentum going!"

Major Joe Ely "Sparky" Carrales, CAP
Commander
Coastal Bend Cadet Squadron
SWR-TX-454

JohnKachenmeister

First of all, I thought the magazine was good.  There was a mix of articles, and enough advertising to fund the effort (and maybe some left over)?  I thought it was sort of strange to see a funeral home advertising there, until I saw the ad from the bail bondsman!

Capt. Lord makes an interesting, and valid, point about CAP Regs and the PC Act.  Cutting away the quibbles, his central point seems to be that:

1.  CAP acting as a part of the USAF is covered by the PCA, no problem.

2.  CAP acting as CAP, Inc. is NOT covered under the PCA.

3.  Therefore, CAP Regs, structured to comply with the PCA, may not be valid on an other-than-USAF mission.  IF a police officer directs a CAP member who is not on a USAF mission to assist him, the CAP member has no choice but to comply with the officers request.  One cannot fall back on "Corporate policy" as a defense against a charge of failing to assist a law enforcement officer.

Example:

You are at a squadron meeting, and a police officer stops a car on the street.  A few members stop to gawk.  The officer determines that the female motorist is drunk.  The officer, seeing one of your uniformed officers is a female, directs that she assist him in searching the drunk female suspect.  This is, in fact, deputization and participation in an arrest and search, all of which are forbidden by CAP regs.  The law, however, states that any person who fails to aid a law enforcement officer is himself or herself committing a crime.  The Posse Comitatus Act cannot be used as a defense, since the CAP member is not on a USAF mission.

Other than forseeing this unusual situation and issuing a squadron policy to prohibit "Gawking," what do you do?
Another former CAP officer

RiverAux

Thanks, you got across the point I was trying to make much better than I did. 

By the way, I do have to say that the California Wing newsletter has been putting out some of the best, most well-written and interesting articles of any Wing newsletter I've seen -- and I look at every one available through the internet. 

Hotel 179

As a point of history, no person has ever been charged for violation of the PCA.  The problem with CAP taking part in any mission where direct assistance to law enforcement can be compared to the several cases where the military provided equipment to the local police during high profile events, Ruby Ridge and Chief Red Eagle....evidence is suppressed as a result of the military role.

Semper vi,

Stephen
Stephen Pearce, Capt/CAP
FL 424
Pensacola, Florida

RiverAux

#10
We're not really talking about "missions" in this thread.  More about situations such as JK outlined.

Also, and this has recently come up over on the CG Aux board, note this federal law:

Quote
TITLE 18 > PART I > CHAPTER 1

ยง 4. Misprision of felony

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

However, note that CAPR 900-3 3b does not conflict with this law:
QuoteAssistance may also be a by-product of the normal conduct of the CAP mission. In some instances, such as during an airborne search, CAP members may observe suspicious activities and as concerned citizens, should report those activities to proper authorities.

DNall

Yes, i understand the law. That is correct. Prior to the 2000 change in our auxiliary status we could claim we work for the AF all the time (even on corp missions) and therefore are bound by PC all the time. Now with that change in place (till congress sees the err of their ways thru conversations like this), the rule is exactly what's quoted from the general counsel. There's also a ruling out there from the US attorney that's a little more binding.

The big hairy problem is when you're on a corporate mission in uniform & ordered by LE officer to restrain an individual in custody, the rest of the world is going to see that on video & think military involved in LE. Regardless of the legal technicalities, that's going to make for a very bad day.

The contradiction is one thing is legal when working for the AF, one thing is legal when not, and CAP regs try to spell out an absolute that's not really the case in either situation. As I said, this is EXACTLY like the medical issue - in which an EMT is required under the laws of every state I know of to render aid to the extent of their training & ability or lose license & face criminal/civil prosecution w/o insurance coverage from any party. CAP regs in that case also tell us that such health care professionals are strictly limited to first aid, which obviously contradicts the law.

So the CAP regs are screwed up in a couple places & it's helpful for members to know what the deal is so they don't get knocked up side the head by the law for following regs. Obviously regs need to be adjusted. The best interim action is for Wg CCs to issue a supplement explaining the situation & instructing members to comply with state/federal law in these cases.

My take on the motivation of this article is that is glances over a secondary issue for the purpose of drawing attention to the unmentioned primary issue with PC. It's fueling the fire to get CAP's status under the AF defined so as to clear up this range of issues, and in doing so either rule in or rule out a wide range of corporate assistance to LE missions, that I personally don't think we should be doing.

JohnKachenmeister

I sort of concur, on principle, that we should not be doing LE missions.  That being said, there is a whole area of gray that is opened up by our sort-of ambiguous status under the 2000 law.

1.  Are "Homeland Defense" missions the same as "Law Enforcement?"

2.  If a missing person search turns into a criminal investigation... such as a ransom note received, or a witness comes forward with information that there was an abduction, do we quit?

3.  Of course, if on any mission we see a crime, we can call the police.  How long can we maintain surveillance of a criminal before we are "Participating in a pursuit, arrest, or search?"  If it is from the air, are we EVER in the pursuit, since we are not chasing anyone, we're just flying overhead?

I'd like to depend on senior leadership to issue sound guidance in these cases, but I am aware of two facts:

1.  I am a senior leader, and I'm not sure what to do, and

2.  Everybody above me seems more confused than I am.

Personally, if I am confronted with the need to make a decision, I will rely on my own common sense and good judgement, rather than regulations.  My good judgement has seldom failed me, at least not when I was sober.
Another former CAP officer

Johnny Yuma

Another good example of CAP and CAP, Inc. playing both sides of the fence for so long the lines are too fuzzy for anyone but the lawyers to read.

CAP Inc. has played fast and loose with so many state laws regarding Cadet Protection yet attempts to remain squeaky clean on assistance to law enforcement that it's almost a detriment. It make me wonder what side of right and good Little Fidel and his cabal at Soggy Bottom, AL are on.

I say to hell with them. No matter what you do if there's legal repercussions they'll protect NHq first and throw you to the wolves anyway. If some cops fighting a dirtbag and needs my help while I'm on any mission I'm backing the cop.


Johnny Y.
"And Saint Attila raised the Holy Hand Grenade up on high saying, "Oh Lord, Bless us this Holy Hand Grenade, and with it smash our enemies to tiny bits. And the Lord did grin, and the people did feast upon the lambs, and stoats, and orangutans, and breakfast cereals, and lima bean-"

" Skip a bit, brother."

"And then the Lord spake, saying: "First, shalt thou take out the holy pin. Then shalt thou count to three. No more, no less. "Three" shall be the number of the counting, and the number of the counting shall be three. "Four" shalt thou not count, and neither count thou two, execpting that thou then goest on to three. Five is RIGHT OUT. Once the number three, being the third number be reached, then lobbest thou thy Holy Hand Grenade to-wards thy foe, who, being naughty in my sight, shall snuffit. Amen."

Armaments Chapter One, verses nine through twenty-seven:

DNall

Quote from: JohnKachenmeister on December 18, 2006, 03:06:26 AM
I sort of concur, on principle, that we should not be doing LE missions.  That being said, there is a whole area of gray that is opened up by our sort-of ambiguous status under the 2000 law.

1.  Are "Homeland Defense" missions the same as "Law Enforcement?"
No. Homeland Security is a LE matter, Homeland Defense is a military matter. That cleared it up right. Really there's the obvious flexible wavy line down teh middle of the gray area & those are the distinctive terms for each side. Obviously in today's world there's a lot of flexibility & worry about the details in teh history books. Unless it's clearly a LE matter, CAP can call it HLD & do it with the AF's blessing.

Quote2.  If a missing person search turns into a criminal investigation... such as a ransom note received, or a witness comes forward with information that there was an abduction, do we quit?
Yes we should quit. For several reasons... bad guys tend to have bad intentions & weapons for one, that gets into oficer safety & use of force issues that CAP should not be playing with; you can endanger a case; you might end up tracking a bad guy around the woods for LE, pretty slippery slope. There's good reasons AFAMs cut off in those circumstances, and I think it's best if we stick prety hard & fast to that.

Quote3.  Of course, if on any mission we see a crime, we can call the police.  How long can we maintain surveillance of a criminal before we are "Participating in a pursuit, arrest, or search?"  If it is from the air, are we EVER in the pursuit, since we are not chasing anyone, we're just flying overhead?
Once they are sighted & engaged by LE, you have to leave the area, or at least cease contact w/ the LE agency. Same thing as the old lady next door can report a crime & watch out her window till police arrive. If she stays on the phone after they get there giving play by play to the dispatcher & that info is used to coordinate officer deployment, that's participating in LE.


QuoteI'd like to depend on senior leadership to issue sound guidance in these cases, but I am aware of two facts:

1.  I am a senior leader, and I'm not sure what to do, and

2.  Everybody above me seems more confused than I am.

Personally, if I am confronted with the need to make a decision, I will rely on my own common sense and good judgement, rather than regulations.  My good judgement has seldom failed me, at least not when I was sober.
Of course common sense rules, & be aware of legal issues like this that may come up, but yes some formal CYA guidance & tweaking a couple regs would be quitte considerate. I think the bigger issue is the AF itself doesn't know all the answers here, and to the extent they do they can't order CAP around outside a very narrow window.

JohnKachenmeister

DNall:

Your advice is sound, and I agree with everything you posted.

But understand... there are Lt. Cols. out there working as incident commanders who have different views.  One told me once that maintaining surveillance and reporting movements until arrival of LE forces was forbidden by regulations.  In other words, once reported, we're out of there.  I don't agree with that view. 

And also understand the confusion of our end-user agencies, especially on a "Corporate" mission.  We can fly DEA agents to look for pot, but we can't fly a deputy to look for a kidnap victim.

And with HD/HS missions, understand that I am not comfortable trying to use semantics and loopholes in the law to fly missions.  I am a military officer, not an Enron executive.  This is like TP calling the Border Patrol Mission a "Rescue" to avoid conflict with the PCA. 

Instead of spending their time splitting legal hairs, I wish our SJA section would draft a good model law for CAP employment in the Global War on Terror.  A law that recognizes that the PCA is outdated, and that the threat facing our country is as real as the Kraut U-Boats that we fought 60-some years ago.  Then hand that model statute over to all the guys in the Congressional Squadron, and ask them to go to work.

With a good legal mandate, and clear, workable legal guidance, THEN we can talk about whether we need more ARCHER gear, or FLIR, or radiation detection systems.  And THEN we can be full players in the GWOT.
Another former CAP officer

Eclipse

This popped up on the KB today:

Quote from: CAP Knowledgebase
The Posse Comitatus Act is a federal statute prohibiting the military from direct participation in certain civilian law enforcement activities. Since Civil Air Patrol members are not military, the Posse Comitatus Act does not directly apply to Civil Air Patrol members. However, when performing an Air Force assigned mission, Civil Air Patrol is acting under the orders of the Air Force and our members cannot perform any act that a member of the Air Force cannot perform. Therefore, when performing an Air Force assigned mission, Civil Air Patrol members are subject to the restrictions of the Posse Comitatus Act. At all other times, Civil Air Patrol members are subject to CAPR 900-3 (see Answer 1120 below), which imposes certain limitations on support to law enforcement agencies similar to those of the Posse Comitatus Act.

CAP General Counsel
Voice - (334) 264-7152

CAPR 900-3 can be found here: http://level2.cap.gov/documents/u_082503081302.pdf

"That Others May Zoom"

JohnKachenmeister

Funny that popped up today, Bob!

Go back a few posts and re-read the scenario I wrote.  In that case, following CAP regs just might get you arrested.

Also, the reg authorizes "Surveillance and Patrol" even if criminal prosecution is the likely result.

So, DNall... Maybe we CAN continue searching for the kidnap victim, as long as we're in a CAP, Inc. status.
Another former CAP officer

DNall

John I tend to agree with that. It's a shame you can put a group of professionals in a room & get such a wide spectrum of opnion. Even if the IC did agree with our view, discipline being what it is the orders may not be carried out in the field & you might get some lip over public freqs.

I do think it would be good for CAP & AF to work together on statement that spells some of this out. It would be good for everyone (internally & externally) to be on the same page, and not to have members feel they may be hung out to dry - that they may be punished & may not be covered by insurance.

PCA is interesting. I don't know if it's outdated or not really. Like the policy statement I seek above, it would be nice for Congress to spell out some details on what they want military to do w/ LE & what they do not. Lawyers are fine in their time & place, but at a mission base making interpretations that apply to the real world ain't it. I don't think revoking it in concept is a good idea though. Our system of govt is designed to be inherently mistrusting of power & you want to restrict the ability of the President to force states to do what he wants w/ tanks. Getting PCA altered is like reforming social security, even if it's a good idea it's very hard to carry out.

JohnKachenmeister

DNall:

I certainly do not want to throw the baby out with the bathwater, but the PCA needs some serious updating, OR Presidential intervention.  I think it would be easier to re-write the PCA to keep the general policy of having cops rather than the military enforce civil laws, but create broad exemptions to permit border, counterdrug and homeland security missions.

One of the things I proposed earlier was a "Border Defense Zone," which would include all international borders of the US except where those borders are within a city.  This would give the military a specific zone in which to operate where the PCA did not apply.

I'm sure if we put some smart guys in a room, we could come up with some commonsense ideas that still preserved the essential liberties of Americans.  Even if some of the smart guys are slackers with military history and social science degrees.
Another former CAP officer