Firearms & GT (Split from NYPD Aux. thread)

[ZigZag911]

John & Dennis, thanks for the clarification.

I'm not certain that the example John used would, in fact, be a PCA violation for anyone, CAP or regular service, to render assistance to a LE officer whose life may well be endangered (regardless of the initial offense, you now have a suspect resisting arrest, attempting flight, and undoubtedly in the act of committing assault & battery on the person of a police officer....which certainly constitutes an immediate danger to all in the vicinity).

Dennis' case, enlisting CAP personnel in a 'hot pursuit' (whether running or by vehicle) is, as he stated, much more complicated....probably would be a violation of PCA....best left to JAG types to unravel!

[JohnKachenmeister]

ZZ:

Don't forget that some CAP operations since 2000 might NOT be as an AF asset, and therefore no PCA involvement takes place.

That's my whole point... 900-3 is designed to reinforce the provisions of the PCA in CAP operations, and has not been changed to reflect our potential non-AF status in a post-2000 legal world.

[Eclipse]

...The Air Force does not consider CAP to even be subject to Posse Comitatus...

Chapter and verse, please, as this is being hotly debated as we speak, and is overtly contained within many of our regulations and pamphlets, and training aids.

[DNall]

...The Air Force does not consider CAP to even be subject to Posse Comitatus...

Chapter and verse, please, as this is being hotly debated as we speak, and is overtly contained within many of our regulations and pamphlets, and training aids.

It's a very complicated subject. AF's official view is that CAP personnel are not as individuals bound by PCA in the same way members of the armed services are. Even before 2000 you weren't under military orders all the time, just on AFAMs (remeber funded SaREx's count also). That's also a requirement to invoke the combatant status under the geneva conventions, which is meaningless in practical terms, but important as a legal techincality that helps define PCA as well.

The simple version is if on an AFAM you assist LE in a way that would otherwise violate PCA for the AF to do the same thing, then YOU haven't committed a crime, but the AF as an organization has because you as their legal agent have done something while acting on theri behalf that they aren't allowed to do. There could be no reprocusions for YOU, but it would be a problem for AF, and if it's a big enough deal (on CNN) then it could seriously endanger funding to CAP (which is a death sentence of the org). More likely though it'd lead to massive reorganization that could go either way.

Like I said it is complicated & there is a lot of debate on the subject. Congress has been asked for clarification, they have considered the matter, and they have intentionally decided to leave it vague. My take on why is because the way they'd define it if forced to would be to put us back in the box w/ AF (opening up the govt to further liability), which would cut off a few opportunities for state/local that they like us doing for now (border patrol for instance).

[JohnKachenmeister]

Dennis:

You're right.  We are working with a Civil War/ Reconstruction era law.  It does not address issues we are facing in the War on Terror.  But it is still a law.  Congress has been asked to modify it as far back as the early 80's when we started getting the military involved in drug wars, but they have consistently refused to address it.  I don't know why, since I've never heard of a constituency for keeping the PCA as it is.

By the way, and I rebuke myself in advance for straying from the topic, but I wrote Chapter One of our paper, paraphrasing you as best I could  from your postings here.  I e-mailed it to you this afternoon, and also to Nick.  Feel free to change anything.  Except your first paragraph where you praise the heck out of me.  (Make me write it, I'll write it my way!!!! )

[DNall]

Saw the email, but you might want to re-send with the file attached. I got a couple weeks here finally I can get some stuff slammed together on it. Thanks much for drafting it though, that'll save tons of effort.

[ZigZag911]

ZZ:

Don't forget that some CAP operations since 2000 might NOT be as an AF asset, and therefore no PCA involvement takes place.

That's my whole point... 900-3 is designed to reinforce the provisions of the PCA in CAP operations, and has not been changed to reflect our potential non-AF status in a post-2000 legal world.

Absolutely...ideal solution: make is full time Auxiliary again!

[lordmonar]

Dennis:

You're right.  We are working with a Civil War/ Reconstruction era law.  It does not address issues we are facing in the War on Terror.  But it is still a law.  Congress has been asked to modify it as far back as the early 80's when we started getting the military involved in drug wars, but they have consistently refused to address it.  I don't know why, since I've never heard of a constituency for keeping the PCA as it is.

The ultra right....The Federal Government is the devil....and other state's rights advocates do not want PCA changed.  Any thing that blurs the lines between state and federal government is bad. It's the same reason why we don't have a National ID card, federal teaching standards, federal doctors, or teacher's licensees.

[DNall]

Dennis:

You're right.  We are working with a Civil War/ Reconstruction era law.  It does not address issues we are facing in the War on Terror.  But it is still a law.  Congress has been asked to modify it as far back as the early 80's when we started getting the military involved in drug wars, but they have consistently refused to address it.  I don't know why, since I've never heard of a constituency for keeping the PCA as it is.

The ultra right....The Federal Government is the devil....and other state's rights advocates do not want PCA changed.  Any thing that blurs the lines between state and federal government is bad. It's the same reason why we don't have a National ID card, federal teaching standards, federal doctors, or teacher's licensees.

Actually I think it's more the left that stand against changes, the ACLU for sure. While they are all for the federal govt being involved in every part of my life, they distrust the military, which tends to be more politically conservative, but trust the FBI & other LE agencies who tend to be percieved as more neutral.

I'ma  pretty staunch state's rights advocate, and I don't see mild reasonable alteration of PCA as much of a threat to state authority. The 10th Amendment is fairly authoritative on that. I certainly don't want the military patrolling streets enforcing laws though, which again the 10th amendment prevents.

PCA is not that big a deal. It is more a regulatory rule than a criminal code anyway. For CAP purposes, I don't see it as a problem at all. It keeps us out of situations that we don't want to expose our people to legally, and it really isn't very restrictive. The fact is there's more work to go around then we could ever hope to handle with four times the number of members. We shouldn't sit around complaining about laws like PCA, we should accept it (cause it'd be in regs even if it weren't the law) and focus on making ourselves capable as a force to respond to things that need to be done. We need to turn our focus inward. That's the whole deal on PCA as I see it is it's just a non-issue. You need to know on GT where the line is & when it applies, but otherwise we're talking about strategic moves by the org, and that's not really very complicated if you accept reality & buckle down to do the hard work.

[RogueLeader]

I would just strip naked and run away screaming, then claim stress.

Sorry Sir,
That would be inapropriate for the Cadets
Nice thought though.

[Flying Pig]

Nice thought? You havnt seen me then!

[ZigZag911]

Dennis & LordM,

I think you are both correct...this is one of those odd situations wherein the two extremes see eye to eye (though for wildly differing reasons!).

[lordmonar]

Dennis & LordM,

I think you are both correct...this is one of those odd situations wherein the two extremes see eye to eye (though for wildly differing reasons!).

Hence, why it is probably a very good law....anytime the Gun Toting Right-Wingers and the Pinko-Commie ACLU Lefties agree on something....leave it alone!

[DNall]

I don't know that they agree, just scared for different reasons. There's enough ambiguity though that it's not politically feasible to make a change. That & social security.

[RiverAux]

Okay, lets compare laws --- We now have examples of several state laws that require individuals to assist law enforcement officers upon demand.  If I as a CAP member refuse, I'm the one paying the criminal price for doing so.

But, look closely at the federal posse comitatuts law:

TITLE 18 > PART I > CHAPTER 67 > § 1385
§ 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Note that the law does not prohibit the Army or Air Force from being used for law enforcement.  It does not say that individual soldiers or airmen would be violating federal law if they participated in a posse comitatus.  What it says is that the person who uses the Army or Air Force is in violation of the law.

So, in all the various examples we've been given here, the CAP member is still required by state law to help the law enforcement officer, however when the law enforcement officer uses the CAP member the LEO would be the one violating federal law (not the CAP member) and would be the one charged with violating PCA.

Now, for this interpretation to be valid and the CAP members completely protected I think the LEO would have to order each individual CAP member to assist him.  If the LEO told the GTL that he required the whole ground team to assist him, I don't think the GTL should then order the ground team to help.  The officer would need to order each GTM to assist him.  Otherwise, the GTL might be putting himself at risk of violating the PCA since he would be acting as an agent for the LEO by ordering the ground team to help. 

No comments on this particular argument?  Guess everyone agrees with my assessment!

[DNall]

That's not the case in execution though. You as an individual are the same as the organization, and you are not allowed to knowingly participate in a criminal act, in this case allowing the officer to commit a crime by following his orders while on an AFAM.

[lordmonar]

Okay, lets compare laws --- We now have examples of several state laws that require individuals to assist law enforcement officers upon demand.  If I as a CAP member refuse, I'm the one paying the criminal price for doing so.

But, look closely at the federal posse comitatuts law:

TITLE 18 > PART I > CHAPTER 67 > § 1385
§ 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Note that the law does not prohibit the Army or Air Force from being used for law enforcement.  It does not say that individual soldiers or airmen would be violating federal law if they participated in a posse comitatus.  What it says is that the person who uses the Army or Air Force is in violation of the law.

So, in all the various examples we've been given here, the CAP member is still required by state law to help the law enforcement officer, however when the law enforcement officer uses the CAP member the LEO would be the one violating federal law (not the CAP member) and would be the one charged with violating PCA.

Now, for this interpretation to be valid and the CAP members completely protected I think the LEO would have to order each individual CAP member to assist him.  If the LEO told the GTL that he required the whole ground team to assist him, I don't think the GTL should then order the ground team to help.  The officer would need to order each GTM to assist him.  Otherwise, the GTL might be putting himself at risk of violating the PCA since he would be acting as an agent for the LEO by ordering the ground team to help. 

No comments on this particular argument?  Guess everyone agrees with my assessment!

It just means we can only be used as directed by act of congress.  I.E. one of the the defense authorization bills authorized the USAF to conduct the war on drugs with in certain parameters.  It means that if a military commander ordered his troops to help enforce laws in ways NOT DICTATED BY CONGRESS that individual would be in violation.  If I as a MSgt in the USAF volunteered as a private citizen to be a sherrif's deputy...that is NOT a violation of PCA. (I know lots of volunteer LE Officers who are active duty).  I just can't be ordered by the USAF to do so without congressional authorization.

So again....we are in a very gray area.  Could a cop ask and receive help for a in the field on the spot assist?  Sure.  Would it be in violation of PCA?  No...not really...if you go by the spirit of the law.  Would a CAP member be up [mess]'s creek if he refused?  Maybe...90%/10% with the 90% being on the side that he would not be prosecuted because of our training, our regulations and our on again/off again USAF-AUX status.

[DNall]

Right.. in general do the right thing & let the lawyers sort it out later. There's enough ambiguity that really you can't be found to be TOO wrong either way. The problem comes when CNN runs a story about the "military engaging in LE" & shows a CAP member (under LE supervision) connecting a right cross on some punk. You can't put yourself in the situation to have something like that happen. It doesn't really matter if it's legal or not, at some point you represent the military (at least when on a mission under their orders, & at least in public perception) and you have to behave as such. Within reason though you just do the right thing & be careful about it.

[lordmonar]

Right.. in general do the right thing & let the lawyers sort it out later. There's enough ambiguity that really you can't be found to be TOO wrong either way. The problem comes when CNN runs a story about the "military engaging in LE" & shows a CAP member (under LE supervision) connecting a right cross on some punk. You can't put yourself in the situation to have something like that happen. It doesn't really matter if it's legal or not, at some point you represent the military (at least when on a mission under their orders, & at least in public perception) and you have to behave as such. Within reason though you just do the right thing & be careful about it.

Well...I got a real simple answer for that.  Corporate Uniforms.

See....no PCA problems...we can write our regulations to let us do what we need to do, to support our communities.....and still be the USAF aux when the federal government needs our assistance.

[DNall]

  See I know you're joking now, and that's funny... obviously what you;re wearing doesn't matter legally. Depending on what you're wearing some moron may still think you're the military. As I said, in their mind there is only the miiltary & cops & if you have an even slightly military looking official uniform & no badge then you are the military. How well you continue to meet or not meet those expectations has other ramifications.... Anyway, good laugh there.