Armed CAP Members

[lordmonar]

Not that I am advocating a pat down/strip search in CAP.......but membership is a privlage not a right.  If the commander suspect that you are holding a concealed weapon, illicit drugs or other times considered illegal or dangerous to his members.....he can issue an order to search your person.  If you decide not to allow it.....well then he is within his authority as a commander to 2b you for not following orders.

A commander has to have authority to issue such an order in the first place if they expect a 2b based on the failure to follow an order to be upheld.  Is an order to submit to a pat-down valid?  How about an order to stand on one leg in the corner of the room?  An order to buy the commander a pizza?

Let's us suppose for a second that you think Member A is carrying a weapon.......You have every right....and maybe the duty...to ask Member A to allow you to check.  No different the a contraband search at encampment.  If he refuses....then 2b city.

Standing on one leg has no safety and regulations to back it up.  The pat down is a commander's logical step to enforce CAP regulations.  Are we going to issue regulations but not give commanders the authority to enforce them?

[Ned]

Let's us suppose for a second that you think Member A is carrying a weapon.......You have every right....and maybe the duty...to ask Member A to allow you to check.  No different the a contraband search at encampment.  If he refuses....then 2b city.

Standing on one leg has no safety and regulations to back it up.  The pat down is a commander's logical step to enforce CAP regulations.  Are we going to issue regulations but not give commanders the authority to enforce them?

Pat pretty much nailed it with this one.

This is part of the problem when people start debating fairly obscure legal questions without the benefit of legal advice.  Now I don't think the discussing, enacting, or implementing the law should in any way be restricted to lawyers.  Lay folks have as much or more wisdom and common sense as lawyers, but sometimes it helps to have a little bit of insight from legally-trained folks.

To recap, here's the stuff on which we probably all agree:

1.  CAP regulations pretty clearly prohibit possessing or carrying firearms at CAP activities, with some narrow exceptions for "mandatory-carry LEOs" who have written permission from wing commanders, and AKWG pilots.

2.  CAP commanders have inherent authority to enforce regulations and discipline members who deliberately violate CAP regulations.

3.  CAP commanders have the authority to inspect members and equipment being used for CAP missions.

4.  CAP commanders can inspect members and equipment to ensure serviceability and compliance with regulations with or without reasonable cause to believe that any regulations are being violated or that the equipment is unserviceable/unsafe.  Such inspections must be reasonable, and related to ensuring safety and compliance with regulations.

5.  CAP commanders do not have special law enforcement powers to conduct searches for suspected law violations.

6.  Adult CAP members may voluntarily withdraw from CAP activities at any time, and accordingly need not submit to any inspection if they choose not to do so.


Having said all of that, there appears to be some disagreement with my assertion that a CAP commander who believes that a CAP member may be violating a regulation by possessing or carrying a firearm at a CAP activity may be asked to submit to an inspection to check.

Can anyone articulate why a commander should not be able to check to see if the regulatiion is being violated at an activity?

[Hawk200]

Having said all of that, there appears to be some disagreement with my assertion that a CAP commander who believes that a CAP member may be violating a regulation by possessing or carrying a firearm at a CAP activity may be asked to submit to an inspection to check.

Can anyone articulate why a commander should not be able to check to see if the regulatiion is being violated at an activity?

At best, you can deny attendance. But, a commander has no right to be able to search an individual's person. If the person walks away, you don't really have any place to terminate. They chose to not participate due to unreasonable request. Myself and others would consider that unreasonable. You don't have any authorization to place your hands on me for reasons of search. You can do it to keep me from immediate harm, or to treat me in the case of injury if I don't have the capacity to consent, but searching me for weapons isn't within your purview.

There have been problems at encampments related to physical searches of an individual. If it's not kosher there, it's not kosher anywhere else. Senior or cadet doesn't matter. Search of property for contraband I can consider reasonable, but search of my person isn't.

As monar said, if you don't know, you don't know. If someone pulls a weapon out saying "look at this," then yeah a 2B would be appropriate. But that's when the violation is clearly backed, not just a suspicion. Choosing to simply search because someone might have a weapon is a problem. And what are you going to do if you don't find anything? I imagine that you and your CO will be talking to the wing king very shortly.

I'd bet that there is probably a policy against physical searches of a member. Might be something to ask the KnowledgeBase, and a specific reference publication wise.

I think it's wisest to not even go there. The corporation can't afford the lawsuits.

[Ned]

Thank you for your thoughtful response.

Let's take it step-by-step.

At best, you can deny attendance.

I think we agree that commanders can deny participation for a member who refuses to permit a reasonable inspection.

But, a commander has no right to be able to search an individual's person.

Non-concur.  A commander has every right to request a member submit to an inspection/search during a CAP activity.  We agree that no adult CAP members can be forcibly searched against their will.  Neither I nor anyone else has ever suggested otherwise.

If the person walks away, you don't really have any place to terminate.

Non-concur.  A member who refuses a proper request by a commander - whether that is turning a report in on time, returning the squadron radio, or submitting to an inspection while at a CAP activity - may be subject to discipline.  A commander who has a reasonable belief that a member is willfully violating a regulation by improperly possessing a firearm at a CAP activity may be disciplined, whether or not they choose to submit to an inspection to verify the commander's concern.  A refusal to submit accompanied by a departure from an activity will certainly be one factor the commander considers when determining what, if anything, to do.

They chose to not participate due to unreasonable request.

Not sure what to do with that.  It sounds like you are creating some sort of hypothetical.  But ultimately, whether a request made by a commander is "reasonable" or improper in some way is not up to the individual member.  It will be up to the commander (and potentially any appeal authority).

Myself and others would consider that unreasonable.

Again, I'm not sure exactly what you are referring to here.  Undoubtedly many members disagree with decisions made by CAP commanders, and may even consider some decisions to be "unreasonable."  I suspect if that were not the case, CAPTalk would simply cease to exist.

You don't have any authorization to place your hands on me for reasons of search.

Non-concur, for the simple reason that the authroization I will have is the consent you give me by acceding to my request to conduct the inspection.  As I have said several times, we all agree that no one in CAP has the authority to use force to check/inspect an adult CAP member.

You can do it to keep me from immediate harm, or to treat me in the case of injury if I don't have the capacity to consent, but searching me for weapons isn't within your purview.

Inspecting / checking for violations of CAP regulations is always in a commander's purview.  Otherwise, how could we ever enforce any of our regulations?  But if it helps, I again agree that I cannot touch you without your consent.  But see previous discussions about what will happen if you decline to provide your consent.

There have been problems at encampments related to physical searches of an individual.

None that I have seen.  And as the National Cadet Advisor for the last several years, I'm pretty sure I would have seen any significant problems if they had occured recently. 

Of course, it isn't hard to imagine that an over-zealous senior could somehow improperly interact with a cadet, so I can't promise that such a thing has never happened.  But I also don't think it will help this discussion to inject the separate legal issue of in loco parentis.  IOW, adults supervising minors probably do have additional duties and responsibilities that may include reasonable applications of force in rare an unusual situations.  (Think a troubled 12 year-old determined to go AWOL at 0300.  I imagine that such a cadet could be gently restrained until parents and/or child welfare officials arrive to sort things out.  We are not reguired to let her wander off base and try to catch a ride from passing truckers.)

If it's not kosher there, it's not kosher anywhere else.

Well, I certainly can't argue with that logic.  But if it IS kosher there . . . .

Senior or cadet doesn't matter.

True as far as that goes, but "adult" versus "minor" probably would.  But I think that is a red herring for the purposes of our discussion here.

As monar said, if you don't know, you don't know. If someone pulls a weapon out saying "look at this," then yeah a 2B would be appropriate. But that's when the violation is clearly backed, not just a suspicion. Choosing to simply search because someone might have a weapon is a problem. And what are you going to do if you don't find anything? I imagine that you and your CO will be talking to the wing king very shortly.

The whole point of most inspections is to find out if anything is wrong without knowing if you will find anything or not.  If we couldn't pull a CI until we had proof that a unit was not in compliance, it kinda defeats the point of an inspection.  As military commander, I was required to conduct inspections of the equipment and quarters of my soldiers.  I looked into their footlockers to see if they had the required equipment and if it was serviceable; not to find dope or other contraband.  But if I found it, then there were consequences. 

Similarly, if a commander heard a rumor that someone did have a weapon at a CAP activity, but couldn't be sure who actually had it at the moment, are you suggesting that the commander could not  ask to check?

I think it's wisest to not even go there. The corporation can't afford the lawsuits.

See, I know a little about lawsuits.  And taking reasonable precautions to ensure compliance of regulations is not something that is every likely to produce a successful lawsuit.

But what do I know?

[edited to correct quote tags]

[davidsinn]

If the person walks away, you don't really have any place to terminate.

Non-concur.  A member who refuses a proper request by a commander - whether that is turning a report in on time, returning the squadron radio, or submitting to an inspection while at a CAP activity - may be subject to discipline.  A commander who has a reasonable belief that a member is willfully violating a regulation by improperly possessing a firearm at a CAP activity may be disciplined, whether or not they choose to submit to an inspection to verify the commander's concern.  A refusal to submit accompanied by a departure from an activity will certainly be one factor the commander considers when determining what, if anything, to do.

They chose to not participate due to unreasonable request.

Not sure what to do with that.  It sounds like you are creating some sort of hypothetical.  But ultimately, whether a request made by a commander is "reasonable" or improper in some way is not up to the individual member.  It will be up to the commander (and potentially any appeal authority).

Myself and others would consider that unreasonable.

Again, I'm not sure exactly what you are referring to here.  Undoubtedly many members disagree with decisions made by CAP commanders, and may even consider some decisions to be "unreasonable."  I suspect if that were not the case, CAPTalk would simply cease to exist.

I would not consent to a search on principle. I would not consent to a search of my vehicle by a LEO on a routine traffic stop either.

You can not terminate on a suspicion and unless you find the weapon that's all you have. If they refuse consent and refuse to leave you probably have a case. If they refuse consent and then leave, what grounds do you have? Any member may leave at any time.

[NCRblues]

Hey Ned,

I just want to make sure I get this straight.

What your saying is, I have a right not to be physically touched, but if I exercise that right, ill be kicked out. Is that what you are saying?

So I get to pick, either be felt up by bob the 67 year old squadron commander, or get kicked out?

[lordmonar]

Bascially yes.

It is your choice.

You don't have to submit.....but you can't play unless you do.

[SARDOC]

I would not consent to a search on principle. I would not consent to a search of my vehicle by a LEO on a routine traffic stop either.

You can not terminate on a suspicion and unless you find the weapon that's all you have. If they refuse consent and refuse to leave you probably have a case. If they refuse consent and then leave, what grounds do you have? Any member may leave at any time.

Remember, that while it is your right against the Government against unreasonable search and seizure.  Civil Air Patrol membership is a Privilege and not a right.  A Senior member can be terminated for insubordination, failure to follow regulations and failure to follow orders.  I think that if a commander had reason to believe you were not in compliance with regulations and you refused to demonstrate that you were indeed in compliance, I would see an untimely ending to your Civil Air Patrol service.

[Major Lord]

The above posts seem to suggest that a Commander may make a request to allow a member's consent to a physical search of his person, and that a denial of the request will be sufficient to prohibit that persons participation in the CAP activity at hand. ( Lets assume for the purposes of argument we are not dealing with a member who may not be touched for religious reasons) Absent any articulable suspicion, refusal of the search on pain of excommunication from CAP activities seems a risky strategy on the part of the Commander. Unless they discover a violation of CAP regs ( or god forbid, law!) how would a reviewing body determine whether this was a reasonable request conducted upon ( and forgive me the use of this phrase, but I can't think of one as poignant) Probable Cause or simply some deviant act of a pervert?  ( not that that has ever happened in CAP, of course) One might consider I suppose, how often a Commander felt compelled in the past to conduct a "stop and frisk" of a CAP member, leaving two options" Oh, yes, I frisk my people all the time" ( in my opinion, a very bad answer) or, "No, I never had good reason to do so before." If his decision to conduct a pat down search was based on mere suspicion, and the member felt that  failure to tolerate the search would result in retaliation of any sort ( including denial of otherwise permissible participation) his accedence could be considered compelled by duress. In other words, if you demand to search a CAP member's Person on pain of termination or suspension, you had better find something, or have an explanation that a reasonable man acting in similar circumstances would accept. If I as a parent heard that my hypothetical little girl had been frisked by an adult, even with witnesses, the pain for any and all parties to that action could last for years! ( And those of you who have participated in any way in an IG investigation will know precisely what I mean!) Of course, searching a CAP member incident to arrest is fine, but watch out for dirty needles.

Major Lord

[davidsinn]

I would not consent to a search on principle. I would not consent to a search of my vehicle by a LEO on a routine traffic stop either.

You can not terminate on a suspicion and unless you find the weapon that's all you have. If they refuse consent and refuse to leave you probably have a case. If they refuse consent and then leave, what grounds do you have? Any member may leave at any time.

Remember, that while it is your right against the Government against unreasonable search and seizure.  Civil Air Patrol membership is a Privilege and not a right.  A Senior member can be terminated for insubordination, failure to follow regulations and failure to follow orders.  I think that if a commander had reason to believe you were not in compliance with regulations and you refused to demonstrate that you were indeed in compliance, I would see an untimely ending to your Civil Air Patrol service.

What if the whole thing is just a pretext to cop a feel? Then what? What defense do I have if it turns out I'm not doing anything wrong yet I just got violated by someone?

We terminate people for touching cadets in the wrong way. Why do I not have the same rights to not be touched? Is that not age discrimination?

[lordmonar]

The fact that the authority may be abused....does not negate that the authority exists.

Abuse of authority is in-of-itself a violation of the regulations and you as a member have ever right to make an IG complaint if you feel someone is abusing his authority.

But we go back to basics.

Do we or do we not routinely conduct contraband searches at encampments an NCSAs?

This is no different.

The object of the pat down is to ensure compliance with a posted CAP regulation.

Refusual to submit could result in adverse actions.

Nothing is automatic.  Of course the member would have the right to apeal any adverse action and the commander would have to back up his decisions with valid reasons.

But.....the authrority still exists.

And by your accepting membership in CAP you have agreed to following the orders of those appointed over you.

[Hardshell Clam]

Folks I am sorry that it has come this far, but let me end my involvement with the following:

1. There was no "troll", hidden agenda or ulterior  motives when this question was asked jut curious after reading the past threads.

2. If anyone truly believes that as a CAP commander they are not civilly or criminally in for their actions and conduct they should consult their legal officer.

So what can you do: I can't say as I just got my butt chewed by "good legal authority" (my wife who is currently admitted to the bar) for getting involved and giving any legal advise.

But I will say this: CONSULT YOUR WING LEGAL OFFICER PRIOR TO ANY PAT-DOWNS.

Cheers!
:clap:

[RiverAux]

5.  CAP commanders do not have special law enforcement powers to conduct searches for suspected law violations.

Is not searching a person for a concealed weapon a search for a suspected violation of law as well (unless you are in a state that freely allows anyone to carry a concealed weapon without a permit)? 

3.  CAP commanders have the authority to inspect members and equipment being used for CAP missions.

What regulation specifically authorizes physical searches of CAP members? 

I think there is a good chance that physical searches could be considered violations of the cadet protection policy:

Hazing is defined as any conduct whereby someone causes another to suffer or to be exposed to any activity that is cruel, abusive, humiliating, oppressive, demeaning, or harmful. Actual or implied consent to acts of hazing does not eliminate the culpability of the perpetrator.

I would certainly consider a physical search demeaning, humiliating, and oppressive. 

Although you could construe this sentence to mean that touching that isn't sexual in nature, even of the genitals, is allowed (I wouldn't), I think it would also violate this part:

Sexual abuse is defined as sexual molestation, touching, contact, exposure, suggestions, or other incidents of a sexually oriented nature.

[Spaceman3750]

What if my commander wants to try out his new box of latex gloves and decides he suspects me of bringing drugs to a meeting and wants to cavity search me? Do I still risk my membership by saying no? After all, he's giving me an order and I'm declining to comply.

[RiverAux]

How about if the commander happens to have a breathalyzer and decides its a good idea to require anyone to blow into it before operating a CAP vehicle?  Blood tests for drug use? 

[JeffDG]

What regulation specifically authorizes physical searches of CAP members? 

What regulation authorized you to go to the bathroom while on a CAP activity?

That which is not prohibited is permitted, so where is the regulation that prohibits physical searches?

[davidsinn]

What regulation specifically authorizes physical searches of CAP members? 

What regulation authorized you to go to the bathroom while on a CAP activity?

That which is not prohibited is permitted, so where is the regulation that prohibits physical searches?

CAPR 123-2

cc. "Sexual Harassment" is unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when submission to the conduct (1) is made a term or condition of membership in CAP or membership privileges/benefits; (2) is a basis for decisions affecting CAP membership and or membership privileges/benefits;
(3) creates an intimidating, hostile or offensive volunteer work environment; or
(4) has the purpose/effect of unreasonably interfering with an individual's volunteer work.

Putting your hands on me without my permission is sexual harassment.

l. "Hostile Environment" means any threatening environment or atmosphere including, but not limited to, emotional and physical abuse, hazing, stalking, and offensive language.

Saying consent to the harassment or face termination is a hostile environment.

[NCRblues]

Well, I tired of all the barracks lawyers on here and decided to call NHQ.

NHQ says that in no way shape or form can a commander conduct a pat down of ANY member SM or cadet. Asking members to empty pockets and gear? Fine. Touching them in any way, NHQ says no way.

[Extremepredjudice]

So if it isn't in my pockets/suitcase (or backpack) I can keep it(and bring it into the activity)...

[lordmonar]

5.  CAP commanders do not have special law enforcement powers to conduct searches for suspected law violations.

Is not searching a person for a concealed weapon a search for a suspected violation of law as well (unless you are in a state that freely allows anyone to carry a concealed weapon without a permit)?

No....it is enforcing CAP regulations.  Irregardless if the carrying of the weapon is legal or not....it is against CAP regs.

3.  CAP commanders have the authority to inspect members and equipment being used for CAP missions.

What regulation specifically authorizes physical searches of CAP members? [/quote]

It is implied in the fact that we have regulations.  A commander's responsibility is to enforce the regulations and he must have the authority to back it up.  So it is not beyond his scope of authority to check complaince......no different then a uniform inspection or checking to insure a driver has a valid drivers license before he drives a CAP van, or checking a pilot's certificaitons before a form 5 ride.

I think there is a good chance that physical searches could be considered violations of the cadet protection policy:

Hazing is defined as any conduct whereby someone causes another to suffer or to be exposed to any activity that is cruel, abusive, humiliating, oppressive, demeaning, or harmful. Actual or implied consent to acts of hazing does not eliminate the culpability of the perpetrator.

I would certainly consider a physical search demeaning, humiliating, and oppressive.[ 

Although you could construe this sentence to mean that touching that isn't sexual in nature, even of the genitals, is allowed (I wouldn't), I think it would also violate this part:

Sexual abuse is defined as sexual molestation, touching, contact, exposure, suggestions, or other incidents of a sexually oriented nature.

You answered your question right there.   A lot has to do with the context...the why the physical contact took place.