Armed CAP Members

[lordmonar]

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.

A search is a search......just saying.

[Ned]

Again, some thoughtful responses.  Too many for me to address individually, but let me hit a few key points again.

1.  Any inspections / searches of a member would necessarily be by consent of the adult member involved.  (Remember, we are not talking about minor CAP members here, because those situations have additional considerations which tend to distract us from the main discussion.)

2.  I concur that members cannot ordinarily be terminated for mere suspicion of misbehavior.  Normally actual, articulable facts constituting misconduct will be required.

3.  According to CAPR 35-3 seniors may be terminated (among other reasons) for "failure to obey rules, regulations, and orders of higher authority," serious or willful violations of CAP regulations or directives," "conduct unbecoming a member of CAP," and "insubordination."

4.  As I said before, any inspection or search must be reasonable, and related to checking compliance with regulations, and/or the serviceability/safety of members or equipment at a CAP activity.  Of course commanders could in theory carry out an inspection in an abusive or improper manner.  Just like any other CAP member could carry out their duties in an abuse or improper manner.  All members can be held accountable for improper actions.  Looking at our recent history, senior officers have been held accountable for improper actions, including some that were terminated.

5.  It is never wrong to consult higher authority and/or your friendly legal officer for guidance in difficult situations.  Indeed, legal officers are there for exactly that reason.

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?

It is certainly possible.  You have the absolute right to refuse to perform any CAP duties, and yet you may still be terminated for "habitual failure to perform duty." (CAPR 35-3, para 4(b)(5).)  Similarly, you have the absolute right to refuse to pay dues, but you won't be a member after your next renewal date.  IOW, there are no shortage of rights that you can exercise that are incompatible with CAP membership.

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?

Sure, I could see it.  I can imagine a situation where you were called in on an ELT search at midnight, and you tell me that you had a glass or two of wine with dinner earlier that night.  If I had some sort of reliable breathalyzer available, we both might think it is a good idea to make sure you are "good to go."  But if you don't want to submit, you surely would not have too.  I may just need to find another driver.

Does that really seem so unreasonable?

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

Sexual harassment is always wrong.  Indeed, CAP has a regulation prohibiting it.  And it is a darn good regulation.

But it goes too far to suggest that every unconsented touching amounts to sexual harassment. 

If you get a award at the meeting, do I commit sexual harassment when I clap you on the back and say "Good job!"?

If I heard your spouse/child/significant other was ill, do I commit sexual harassment when I touch your arm and say "I heard about the illness, is there anything I can do?"?

Touching that was not intended as - and no reasonable person could perceive as being related to -- sexual conduct is simply not sexual harassment.

[Extremepredjudice]

If you get a award at the meeting, do I commit sexual harassment when I clap you on the back and say "Good job!"?

Yes, you do.

I witnessed a case, the defendant was introduced to someone(shook their hand, that is it), and that person called the police and got them arrested for assault and battery.

[Spaceman3750]

If you get a award at the meeting, do I commit sexual harassment when I clap you on the back and say "Good job!"?

Yes, you do.

I witnessed a case, the defendant was introduced to someone(shook their hand, that is it), and that person called the police and got them arrested for assault and battery.

Committing an act and being accused of committing an act by a nutjob are two different animals.

[Extremepredjudice]

If you get a award at the meeting, do I commit sexual harassment when I clap you on the back and say "Good job!"?

Yes, you do.

I witnessed a case, the defendant was introduced to someone(shook their hand, that is it), and that person called the police and got them arrested for assault and battery.

Committing an act and being accused of committing an act by a nutjob are two different animals.

I was at the sentencing hearing. They were already convicted.

[NCRblues]

Ned, how do you respond to NHQ's IG's office saying "pat-downs" would not be allowed?

[lordmonar]

Ned, how do you respond to NHQ's IG's office saying "pat-downs" would not be allowed?

I'm not Ned....but it is just NHQ putting limits on what they think would be reasonable when answering a hypothitical question.

But a search is a search.......If I can ask you to empty your pockets and lift up your coat......I can certainly invistigate the unusual bulge you may be hiding in your pants.....assuming I had a reasonable belief that you were carrying a weapon.

[Ned]

If you get a award at the meeting, do I commit sexual harassment when I clap you on the back and say "Good job!"?

Yes, you do.

I witnessed a case, the defendant was introduced to someone(shook their hand, that is it), and that person called the police and got them arrested for assault and battery.

Oh come on.  At this point you appear just to be arguing for the sake of it.  But of the off chance that you were serious, allow me to respond.

1.  I said it was not sexual harassment.  That is not remotely the same thing as "assault and battery."

2.  Touching someone of the back while saying "good job" is not remotely the crime of battery, either.

3.  The crime of battery requires that the unconsented touching be done "in a harmful or offensive manner."  See, e.g., California Penal Code section 242 (defining the crime of "battery.")

4.  Getting arrested for something is not remotely the same as being convicted of it.  If, as you say, the person was convicted, you are either mistaken or have left out one or more significant facts.

5.  In my 30+ years as a police officer, prosecutor, and criminal court judge, I have never, ever seen anyone arrested or convicted for shaking hands while being introduced to someone.

But thank you for thinking about our legal system.  A lot of folks never give out system a second thought.

Thank you for your service.

[Extremepredjudice]

If you get a award at the meeting, do I commit sexual harassment when I clap you on the back and say "Good job!"?

Yes, you do.

I witnessed a case, the defendant was introduced to someone(shook their hand, that is it), and that person called the police and got them arrested for assault and battery.

Oh come on.  At this point you appear just to be arguing for the sake of it.  But of the off chance that you were serious, allow me to respond.

1.  I said it was not sexual harassment.  That is not remotely the same thing as "assault and battery."

2.  Touching someone of the back while saying "good job" is not remotely the crime of battery, either.

3.  The crime of battery requires that the unconsented touching be done "in a harmful or offensive manner."  See, e.g., California Penal Code section 242 (defining the crime of "battery.")

4.  Getting arrested for something is not remotely the same as being convicted of it.  If, as you say, the person was convicted, you are either mistaken or have left out one or more significant facts.

I have never, ever seen anyone arrested or convicted for shaking hands while being introduced to someone.

But thank you for thinking about our legal system.  A lot of folks never give out system a second thought.

Couldn't the person have been harmed by the shaking the person's hand?
You can crush someone's hand. Or they have have been a surgeon, and the person might have inhibited their business!
Maybe that person had a traumatic experience with someone shaking their hand? It could have triggered a flashback, and caused emotional distress.

You can't arbitrarily say "shaking hands isn't assault or battery."

From Florida statute 784.03

1. Actually and intentionally touches or strikes another person against the will of the other; or
2. Intentionally causes bodily harm to another person.

Maybe the defendant forced the other person to shake their hand?

Edit:

5.  In my 30+ years as a police officer, prosecutor, and criminal court judge,

I volunteer at a local Teen Court (you are probably familiar with the program).

[SARDOC]

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?

happens for private employers all the time as part of their safety program.  Maybe you shouldn't say this out loud because something like this isn't completely out of the realm of possibility...especially if it's a condition of employment or their insurance carrier. 

[NCRblues]

So Ned, no response to NHQ saying no huh?

[lordmonar]

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?

happens for private employers all the time as part of their safety program.  Maybe you shouldn't say this out loud because something like this isn't completely out of the realm of possibility...especially if it's a condition of employment or their insurance carrier.

A few years ago in Vegas they were doing a test drive promotion of H2's on a this cool off road track.  They required everyone to blow into a breath analyzer before they go in the car.

[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?

happens for private employers all the time as part of their safety program.  Maybe you shouldn't say this out loud because something like this isn't completely out of the realm of possibility...especially if it's a condition of employment or their insurance carrier.

Yes, and they probably have policies that specifically implement such programs. 

Now, if CAP wants actually codify a body search regulation, that would be one thing, but also isn't what we're talking about.

But, to say that a commander or IC or Mission Pilot has the authority to demand and conduct a body search based on some amorphous god-like authority found somewhere (but not specifically) in CAP regulations is just wrong. 

[Ned]

So Ned, no response to NHQ saying no huh?

Jeez, give me a break here.

I'm doing the best I can to keep up, given the fact that the taxpayers are expecting me to do some work during the workday. 

Preliminarily, I'm not sure how asking an IG for guidance here is very helpful.  IGs are not lawyers, policy makers, or commanders.  If you have a legal question, you should consider asking a legal officer. 

As to the specific response provided by the IG,  we need to know how the question was posed.  E.g., the context.

For example, if I was sitting at a desk and someone called and said "Hey, can a CAP officer conduct an intrusive pat-down of a member for no good reason?", I would probably respond with "no."

OTOH, if the question posed was "If a commander had information that a member present at a CAP activity was carrying a firearm in violation of CAP regulations and would not respond verbally when asked, could a commander request the member to voluntarily submit to limited pat-down conducted in a respectful manner to ensure the member was in compliance with regulations and not a danger to themselves or other members at the activity?"

Then my answer would likely be "yes."

Context is everything.

And finally, the IG could simply be wrong.  Without any explanation, support, or reasons provided, it is difficult to evaluate their answer.

I have provided my support and reasoning.

You get to decide which guidance, if any, to accept.

I suspect we will both live to see another day either way.

[SARDOC]

^^^  I think that a complete pat down or contact search is completely unnecessary.  It would have to be very specific.  It would all depend on the reason a commander would have a reasonable expectation that the member is violating policy.    Commanders are not trained on doing these physical searches.  I think it comes down to why the Commander suspects it.  I think the Commander would be better off contacting the authorities for a possible violation of the law....If the member is carrying a firearm they would be required to present their CCW to a law Enforcement officer on demand.  You can be pretty sure that at some point whether or not the person is carrying it legally you would have enough information to determine if they are violating the policy.

[lordmonar]

^^^  I think that a complete pat down or contact search is completely unnecessary.  It would have to be very specific.  It would all depend on the reason a commander would have a reasonable expectation that the member is violating policy.    Commanders are not trained on doing these physical searches.  I think it comes down to why the Commander suspects it.  I think the Commander would be better off contacting the authorities for a possible violation of the law....If the member is carrying a firearm they would be required to present their CCW to a law Enforcement officer on demand.  You can be pretty sure that at some point whether or not the person is carrying it legally you would have enough information to determine if they are violating the policy.

Not a help in CCW state.

The cops would have less authority to do a pat down the a CAP commander.  They would have to have probable cause that a law was broken....and in a CCW state it is not illegal to carry concealed.....so no search.  So you have gotten no further in keeping unauthorised weapons out of CAP activities.

Like I said.....of course all authority is limited by reasonable expectations.  If a visual search or emptying of the pockets is enough....then that is enough.  But if a pat down is a reasonable approch to enforcing the regulation.....then that implies that the commander must have the authority to conduct said search.

This is one of those cool ethical discussion where we have "what's practical", "what's right", "The Law" and "The Regs" and they all don't always match up.

[SARDOC]

My point above is even in a CCW state that if a Law Enforcement officer were summoned to a report of a person possible carrying an illegal weapon they would have cause enough to ask the suspect if they were carrying a weapon and if the answer is Yes...then see if the person is doing so legally or illegally?  The Member carrying would present the appropriate credentials or documentation if carrying legally.  The Law Enforcement officer could determine that no violation of the law occurred and leave.  The Commander could then dismiss the member and go fill out the 2B for violating the policy.

[NCRblues]

Ned, I put it just like this.

"Hello, my name is (blank) and I am currently in a debate on CAPTALK. The debate is about if a commander can due "pat-down" style searches of members." He told me he would call me back after reading the debate and speaking to others.

A few hours later he did just that, with a "no" answer. In fact he went on to say that, if a commander believe someone is breaking the law or regulations, the commander needs to immediately ask that person to leave the area. If the person does not, than the commander needs to contact the local authorities and run the problem up the chain of command.

I did not put it in a way that sounded like all heck was breaking lose and my commander wanted to "cop a feel". I let him read the debate (and im sure he read some of your wisdomly words) and get back to me.

So with NHQ saying no, im ganna go with no, and wish those commanders that want to conduct a pat-down with the best of luck.

[lordmonar]

My point above is even in a CCW state that if a Law Enforcement officer were summoned to a report of a person possible carrying an illegal weapon they would have cause enough to ask the suspect if they were carrying a weapon and if the answer is Yes...then see if the person is doing so legally or illegally?  The Member carrying would present the appropriate credentials or documentation if carrying legally.  The Law Enforcement officer could determine that no violation of the law occurred and leave.  The Commander could then dismiss the member and go fill out the 2B for violating the policy.

Nope......they probably will not respond.   No probable cause.  You would have to have more than "there is a guy at my meeting who may be packing, but he won't show me."   Because we (CAP) don't have the "legal" authority to demand a CCW permit like a cop does.  So if it is otherwise legal (i.e. you are not on school grounds or some other off limits areas) they have no reason to demand him to produce a CCW permit.

Ultimately though....what is the difference between a CAP commander conducting a pat down and a local law enforcement officer conducting a pat down at the request of a CAP officer?

Beyond making a bad situation worse....you have not removed CAP from any liablity if this is an over reaction.....in fact you probably make it even worse as now you have provided the guy's lawer with documented proof of damages (an arrest record could be considered damages to reputation). 

[lordmonar]

So there's your answer.

"SM X.....I need you to leave because I think you are packing."

"But I'm not"

"Show me"

"No"

"Good bye".

End of story.   The IG actually said we have the authority to conduct the search.......he just thinks we should not actually do it.

This maybe hair splitting.....but a lot of command authority is just that.
We have a duty to take all reasonable actions to protect our organisation and enforce our regulations.  Do I think it is a good idea to do a pat down?  No.....and I would never do one.....for all the reason you cited.  But I certainly can say "prove to me you aren't packing or go home forever".