Texas Wing Duo Tracks Down Stolen Beacon

[Eclipse]

I gotta admit, a pretty cool mission...

http://capvolunteernow.com/news.cfm/texas_wing_duo_tracks_down_stolen_beacon?show=news&newsID=8362

[Phil Hirons, Jr.]

I was involved in one of these a few years back. We were not allowed to use cadets on the mission which was the bulk of RIWG's ground personnel at the time

[Gunner C]

I read the story and have been wondering how this isn't a violation of the Posse Comitatus Act or, at the very least, violation of DoD policy concerning the use of military forces for law enforcement.  I've put the particulars of the mission below:

1.   Called by wing alerting officer for beacon mission.  Good to go.

2.   Was told that the beacon had been stolen before it was activated.  Warning bells should have gone off:  since it was stolen, they were looking for a crime scene or a location where a possible criminal was holding stolen property.

3.   "the officer started a slow, progressive search of the area using the Houston squadron's Little L-Per direction-finding system. "  Using CAP (USAF Aux) equipment for the location of stolen property.

4.   "As the team went slightly past the designated area, the roof-mounted three-antenna system picked up a definite signal."  Conducting reconnaissance for the location of stolen property.

5.   "The homeowner knew nothing about it, but gave permission to the officer and the two CAP members to search the area."  Conducting searches of civilian property for stolen property."

6.   "The police officer entered the house, then summoned Hensley to come in with the direction-finding unit. As the officer searched, the signal seemed to be coming from a sports-type carrying bag in one of the rooms." Conducting a law enforcement search.

7.   "Turoff assisted the officer in turning off the device, then notified the AFRCC and Woolfolk of the search's success. "  Good to go.

Military forces (which includes us for PCA purposes) are proscribed from doing this.  There are exceptions (two that I'm aware of):  Homeland security missions that are not invasive; providing aerial platforms for counter drug assistance.  Since this was an Air Force directed mission under Title 10 and it had nothing to do with either of those exceptions, how is this not a violation of law?

[Eclipse]

It does make one wonder why these questions aren't being asked during the mission, or at least before publishing a story like this.

[Gunner C]

Any legal guys out there who'd like to chime in on this?

BTW, even though no one has ever bee prosecuted under this statute, Section 1385 of title 18, United States Code, a person convicted under this law "shall be fined under this title or imprisoned not more than two years, or both."

[SARDOC]

I'm not a lawyer, but do work as a law enforcement officer,  I see the actions of the CAP personnel as passive support for Law enforcement activities therefore not subject to the Posse Comitatus Act...not really different from the Counterdrug missions.  I don't see a problem with their actions.

[ZigZag911]

Posse Comitatus was originally enacted because Southern states, on readmission to the Union, wanted US Army troops gone; Northern politicos agreed in exchange for Southern support in Congress.

Just on that basis, has the time perhaps come to reexamine the purpose of this law in the 21st century environment?

[High Speed Low Drag]

As I see it, (law enforcement view), CAP was not tracking a stolen beacon.  It was tracking an ELT that was broadcasting a signal - a signal that could pose a hazard to any other ELTs that may legitimately be activated within the area. 

The fact it was stolen has nothing to do with that ELT track - OTHER than as a safety issue.  Hence, having LE involved.  It would be hazardous to CAP personnel to track the beacon with a known safety hazard (criminals can act unsafe at times).  With LE involved, proper ORM involved, it would now be safe to track the ELT.

ELT located, shut off, and end of CAP involvement.  Like SARDOC, in my opinion this is even less of a LE function than CD flights.

[Gunner C]

I just spent a week with the National Guard state J2s (directors of intelligence).  The PCA was a major topic during the week of classes.  Here's the bottom line:  once the mission has a law enforcement nexus (criminal activity vs lost person search), then it becomes a PCA issue (if they are operating under Title 10, which we do). Under the PCA and DoD directives, it is not allowed. 

Let's change the scenario a bit.  The LEO was accompanied by a squad of Army Rangers with direction finding equipment going from building to building.  The LEO is interviewing the residents but the Rangers are standing at the curb, watching with their equipment.  Would this be allowed under PCA and DoD directives?

When you go out on one of these missions, you're operating under the same rules as the RM.  No RM commander would allow their people to assist in the search for stolen property in a civilian setting.  That is state/local jurisdiction.  Except under certain circumstances, Army and Air Force assets cannot assist law enforcement on the ground.  Once the word "stolen" was put in there, the IC should have waved off.

[Gunner C]

I'm not a lawyer, but do work as a law enforcement officer,  I see the actions of the CAP personnel as passive support for Law enforcement activities therefore not subject to the Posse Comitatus Act...not really different from the Counterdrug missions.  I don't see a problem with their actions.

Support to counter drug operations is a specific exception under DoD rules.  But even then, military participation is VERY limited and VERY specific.

[Short Field]

It looks like they were providing passive assistance which is allowed.  See  guidance below from  CAPR 900-3 Firearms - Assistance to Law Enforcement Officials  15 Jul 86

3. Assistance to Law Enforcement Officials. Civil Air Patrol units and CAP members engaged in CAP activities may provide passive assistance to law enforcement officers and agencies. CAP members may not be deputized nor may they take an active part in arrest or detention activities and have no authority to restrict persons by means of force, actual or implied.
a. CAP assistance to law enforcement agencies which may lead to criminal prosecution is restricted to patrol, surveillance, and reporting only. Requests for such assistance, unless of an emergency nature, must be approved in advance by the Wing and Region Commanders and coordinated with National Headquarters/DO. All CAP flights will be in accordance with CAPR 60-1.
b. Assistance 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.

[Gunner C]

CAP assistance to law enforcement agencies which may lead to criminal prosecution is restricted to patrol, surveillance, and reporting only. Requests for such assistance, unless of an emergency nature, must be approved in advance by the Wing and Region Commanders and coordinated with National Headquarters/DO. All CAP flights will be in accordance with CAPR 60-1.

It wasn't an emergency.  Was this coordinated at wing, region, and national?  Don't think so.  FTFSI

[Major Lord]

A literal interpretation of 900-3 would seem to preclude CAP from assisting Law Enforcement , but in fact we do that literally every day. The Sheriff of the County (in California) is the Chief Law Enforcement Officer and has jurisdiction over SAR in his County; when CAP is allowed to play, it is really only with the acquiescence of the Sheriff. Pseudo-Federal Agency not withstanding.

In the event that an airplane was stolen or hijacked, would CAP refuse to provide direction finding assistance merely because someone is potentially legally culpable, and we might be in violation of the PCA ?( A law with more holes in it than the BP well Cap) Legal Jeopardy is inherent in all crashes, so perhaps we had better add a new "GTL", for"Ground Team Lawyer"!

Although the PCA pretty clearly includes CAP on AFAM's , it is only on missions were CAPR 900-3 is the primary issue that are borderline. Frankly, we are way over the border when conducting CD, so the standard ( that we don't really care about 900-3 in cases where we can't sent a bill to someone) is pretty fungible. No one in their right mind could claim that we are not "police Agents", since they (LE)  provide specific direction.

CAP's insistence on being subject to PCA is arguable, but the Sheriff has no obligation to recognize PCA and how it applies to our largely civilian organization. California has laws requiring able bodied adults to come to the aid of Law Enforcement (and a few other categories) when summoned. This is the statutory manifestation of the Common Law doctrine of Posse Comitatus. CAP as a Corporation has no legal right to exempt itself or its members from their legal obligations as citizens merely by creating a Corporate policy that forbids doing so. Most States have similar Statutes that mirror the Common Law. You are subject to fine and imprisonment for failing to provide assistance.

That being said, it may have been wiser to walk away from the tasking, but that requires a type of amorality that is not the standard in CAP members, most of whom want to do the right thing. (Well, at least Texans, may they live forever in the Halls of Valhalla!) Certainly there are many CAP members who have a clear and vocal anti-police hostility, and these members seem to shout louder than most.

No one knows why a distress beacon has truly been activated until they find it (if even then) and we should use care in being dismissive of any distress signal based on the unsubstantiated reports of third parties. (including police) As mentioned above,  an activated beacon in and of itself creates a hazard to life, and property, and to safe navigation of the skies and waterways.

Major Lord

[RiverAux]

The fact appears to be that AFRCC activated CAP to find the beacon which means any possible PCA issues should have been resolved by them already, so it is a non-issue as far as I'm concerned.  Now, if Sherrif Andy called the local CAP squadron and asked for help and they did it without talking to anyone else, that would be a different story. 

So, if there are any legal issues, they aren't CAP's problem. 

[Short Field]

It wasn't an emergency.  Was this coordinated at wing, region, and national?  Don't think so.  FTFSI

What the CAP Reg does demonstrate is that PCA concerns do not limit CAP as long as we are not trying to detain or arrest people.  A couple of corporate officers and some hired staff can't overrule the PCA - therefore it must not apply in those situations.