Firearms & GT (Split from NYPD Aux. thread)

[JohnKachenmeister]

Dennis:

I agree with you.  It seems that to address one problem, the system created new problems.  And the act of creating new problems did not solve the original problem.

1.  We went in to drain the swamp.

2.  We agitated the alligators.

3.  Then, with alligators up to the anal opening, we discover that the pump we brought doesn't work.

4.  The National Board then designs a new patch for participants in "Operation Dry Swamp," and considers making a new specialty track for alligator wrestling. 

[Flying Pig]

River Aux........Its the Posse Comitatus Act.  In Ca. its defined in Penal Code 150.

Every able-bodied person above 18 years of age who neglects or refuses to join the posse comitatus or power of the county, by neglecting or refusing to aid and assist in the taking or arresting any person against whom there may be issued process or by neglecting to aid and assist in the retaking any person who, after being arrested or confined may have escaped from arrest or imprisonment, or by neglecting or refusing to aid and assist in preventing any breach of the peace, or the commission of any criminal offense, being thereto lawfully required by any uniformed peace officer or by any peace officer designated in PC830.1, who identifies himself or herself with a badge and or identification card issued by the officers employing agency, or by any judge, is punishable buy a fine of not less than $50 and not more than $1000.

Its a misdemeanor. 

So in other words, as you can see as I said above, an officer ordering your female Lt to search his prisoner doesnt fall under Posse Comitatus.  Assist in making the arrest, or preventing any breach of peace.  Not searching your suspect after the arrest is made because the officer is worried about a law suit.  Thats why I made the comment when asked, that I would tell the cop to "do his job". Its intended for summoning help in an extreme situation.

[JohnKachenmeister]

Section 2921.23, Ohio Revised Code:

"No person shall negligently fail or refuse to aid a law enforcement officer when called upon for assistance in preventing or halting the commission of an offense or in apprehending or detaining an offender, when such aid can be given without a substantial risk of physical harm to the person giving it."

(Minor Misdemeanor.)

[ZigZag911]

Actually... well I do think it needs to be re-written to grant teh option in reasonable situations as I stated before, BUT in general I think it should be presented as part of a body of evidence to show the full-time Aux status needs to be respored & adequate regulatory & command authority granted to ensure that's executed within the lines with ref to penalties that may ensue from not doing so. In other words, what they should have don in the first place, but I wasn't working there at the time to tell them how stupid the idea was.

Concur, completely!

[lordmonar]

Section 2921.23, Ohio Revised Code:

"No person shall negligently fail or refuse to aid a law enforcement officer when called upon for assistance in preventing or halting the commission of an offense or in apprehending or detaining an offender, when such aid can be given without a substantial risk of physical harm to the person giving it."

(Minor Misdemeanor.)

I high light that word as the critical one here in this sentence.  Would a reasonable person who was a member of CAP and read his regulations and listened to the training we get on ES missions THINK they were not allowed to be deputized and not allowed to assist LE officers?  Not that they did not want to...but that they were not allowed to.

So again we are stuck between a rock and a hard place.  PCA/not PCA....volunteers doing ES who are not lawyers and don't spend hours looking up obscure laws and reading dusty regulations.

Bottom line 900-3 needs to be re-written.  But we can't re-write it anytime soon because once we start down that path the guys who thing CAP is purposely moving away from the USAF will see it as just another power grab and scream bloody murder.  Forget that all we are doing (and this includes the USAF-AUX coming off the planes and vehicles) is compiling with title 10.

We need to rewrite 900-3 to:

A) allow LE Support under Corp missions.
B) Spell out when and where a CAP member can be deputized.
C) Spell out exactly how CAP will cover or not cover a deputized CAP member.

[JohnKachenmeister]

"Negligently" is the level of criminal intent necessary to commit the act.  There are 4 levels of criminal intent:

1.  Negligence
2.  Recklessness
3.  Knowledge
4.  Purpose

Negligence is defined as "A substantial lapse from due care."  If you want to use the lack of criminal intent as a defense, it MAY work.  You would have to prove that the CAP officer failed to assist the LE officer in the honest belief that he or she would be violating a law by doing so.  This would be an uphill battle for the defense, since negligence is the lowest level of criminal intent.  The only things that are lower are "Strict liability" offenses, which do not require a showing of any level of criminal culpability.

[DNall]

Bottom line 900-3 needs to be re-written.  But we can't re-write it anytime soon because once we start down that path the guys who thing CAP is purposely moving away from the USAF will see it as just another power grab and scream bloody murder.  Forget that all we are doing (and this includes the USAF-AUX coming off the planes and vehicles) is compiling with title 10.

Actually, I don't think you're referring to title 10 specifically, but the law in general states some restrictions on CAP that they only have power to enforce while in Aux status but the intent is for those restrictions to be inplace all the time regardless of which govt paid insurance policy is covering you. The only reason tot take any of the stuff off or change these kinds of rules is to skirt the law & do what happens to please us for the time being, regardless of how others feel about it. I tend to think of that as irresponsible & selfish.

[SAR-EMT1]

OR... the AF could just give us the same LE powers as the Coast Guard or the same LACK of powers the CG-Aux has.

[JohnKachenmeister]

The Air Force doesn't have those powers to give.  That would have to be an act of Congress.

But check the "Iraq Run Away Bill."  It MIGHT be in there!

[ZigZag911]

Suppose an untrained, possibly unarmed, civilian so deputized is killed or injured acting under the orders of a law enforcement officer.

To what kind of liability does this expose the state or local jurisdiction?

I'm no lawyer, but I sense litigation with a capital "L"!!

[JohnKachenmeister]

ZZ:

Already done.

The state is fully liable.  Most states have specific laws on that.  Local jurisdictions are normally protected by state laws which accept liability for injury or damage.  Also, in most states, a citizen called to aid a police officer is immune from lawsuit.

[lordmonar]

Bottom line 900-3 needs to be re-written.  But we can't re-write it anytime soon because once we start down that path the guys who thing CAP is purposely moving away from the USAF will see it as just another power grab and scream bloody murder.  Forget that all we are doing (and this includes the USAF-AUX coming off the planes and vehicles) is compiling with title 10.

Actually, I don't think you're referring to title 10 specifically, but the law in general states some restrictions on CAP that they only have power to enforce while in Aux status but the intent is for those restrictions to be inplace all the time regardless of which govt paid insurance policy is covering you. The only reason tot take any of the stuff off or change these kinds of rules is to skirt the law & do what happens to please us for the time being, regardless of how others feel about it. I tend to think of that as irresponsible & selfish.

No...prior to the 2000 change we were always the USAF-AUX and alway PCA applied.  When title 10 changed so did our PCA exemption to assiting local LE officers.

[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. 

[DNall]

Bottom line 900-3 needs to be re-written.  But we can't re-write it anytime soon because once we start down that path the guys who thing CAP is purposely moving away from the USAF will see it as just another power grab and scream bloody murder.  Forget that all we are doing (and this includes the USAF-AUX coming off the planes and vehicles) is compiling with title 10.

Actually, I don't think you're referring to title 10 specifically, but the law in general states some restrictions on CAP that they only have power to enforce while in Aux status but the intent is for those restrictions to be inplace all the time regardless of which govt paid insurance policy is covering you. The only reason tot take any of the stuff off or change these kinds of rules is to skirt the law & do what happens to please us for the time being, regardless of how others feel about it. I tend to think of that as irresponsible & selfish.

No...prior to the 2000 change we were always the USAF-AUX and alway PCA applied.  When title 10 changed so did our PCA exemption to assiting local LE officers.

That's correct. When not on an AFAM you are legally bound as any other private citizen, which I would argue is problematic for the AF in any number of situations you can envision.

However, the reason the command patches changed & stuff came off the planes is to get around the AFI requiring permission from the SAF to partake in missions which need a legal ruling to ensure they don't violate PCA. If you don't have the AFAux name on then that reg doesn't apply & youy don't have to ask permission for those corporate missions. That sounds fine on the surface, but do you really have a problem with an AF/JA reviewing the mission profile first to make sure there isn't an issue? I mean there still can be legal issues for AF regardless if it is a corporate mission and they deserve the right to clear them first.

The case with 900-3 is very similiar. We were previously boud by federal law, spelled out in 900-3. You are correct that after the Aux status changed that the reg became outdated & in need of update. However, allowing assistance to LE greater than what 900-3 provides is not palatable from a liability perspective, and it allows the appearance of inpropriety that AF is not willing to tolerate. That's why AFAux went on the planes in the first place in conjunction with that restrictive AFI.

You can't just deide you don't like the rules & try to squirm around them. You can either go to congress & have them change or clarify the ssituation, or you can live with it as is. The org looks real bad & burns lots of bridges when it tries to exploit the situation or play games outside those rules.

[Flying Pig]

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

[JohnKachenmeister]

That can work, you know.  We had a sergeant who was the commander of the midnight shift SWAT team (And a reserve Special Forces full colonel) who got caught wearing womens clothing by officers of a suburban police department.  He claimed stress and got a 60% disability.

He can buy a lot of Victoria Secret stuff with that money!

[ZigZag911]

ZZ:

Already done.

The state is fully liable.  Most states have specific laws on that.  Local jurisdictions are normally protected by state laws which accept liability for injury or damage.  Also, in most states, a citizen called to aid a police officer is immune from lawsuit.

OK, granted I'm from a densely populated urban state (although NJ does have some pretty isolated rural areas, with few or no local police, patrolled by the state poice), but I'm having a great deal of difficulty imagining a situation in which a professional law enforcement officer is going to see a benefit to deputizing an untrained, unprepared, unequipped civilian.

I see even less value in it for state and local jurisdictions that will have to bear the price tag if said civilian gets killed, hurt, kills or injures someone else, or otherwise does more harm than good.

Please enlighten this dumb Yankee!

[JohnKachenmeister]

ZZ:

Already done.

The state is fully liable.  Most states have specific laws on that.  Local jurisdictions are normally protected by state laws which accept liability for injury or damage.  Also, in most states, a citizen called to aid a police officer is immune from lawsuit.

OK, granted I'm from a densely populated urban state (although NJ does have some pretty isolated rural areas, with few or no local police, patrolled by the state poice), but I'm having a great deal of difficulty imagining a situation in which a professional law enforcement officer is going to see a benefit to deputizing an untrained, unprepared, unequipped civilian.

I see even less value in it for state and local jurisdictions that will have to bear the price tag if said civilian gets killed, hurt, kills or injures someone else, or otherwise does more harm than good.

Please enlighten this dumb Yankee!

I admit that it is rare.  I have only done it myself 3 or 4 times in 25 years.  And in all but one of those incidents I used a trained security officer to assist me.

But then, I only fired my pistol in action once in 25 years.

I think it would be LESS rare in a disaster when CAP forces are likely to be engaged in a relief mission.  At that point, police forces would be seriously overextended, and one officer may need help securing or searching prisoners.  If I saw two looters and arrested one, I could handcuff him and direct uniformed relief workers to "Watch him" while I went after the second one.

[DNall]

Please enlighten this dumb Yankee!

Okay sure... You're jogging in the park, see a cop wrestling on the ground with some guy, & mostly getting his butt kicked. He loses that guy very well could get his gun & now someone's not going home to their wife & kids. So he says help... now you're legally deputized.  You bear full LE powers (temporarily & under his supervision), are required by law to help to the best of your ability, are free from legal liability if you break the guy's jaw in the process, and will be charged with a crime if you don't help.

As a CAP member in that situation while on an AFAM you are not supposed to get involved, but as Pat said before, most people are going to do the right thing & let the lawyers sort it out later. The time when you're going to refuse is when it's not an emergency & there's cameras all over the place to document the heavy handed military oppressing civilians by enforcing the law on them by force, or so CNN will say.

I think it would be LESS rare in a disaster when CAP forces are likely to be engaged in a relief mission.  At that point, police forces would be seriously overextended, and one officer may need help securing or searching prisoners.  If I saw two looters and arrested one, I could handcuff him and direct uniformed relief workers to "Watch him" while I went after the second one.

That's a good point. When state/local cops are fractured & working all over, National Guard troops moving around. Here comes CAP doing assessment & SaR work, there's some looters over there & cop yells come with me as he takes off at a run. It gets dicey in there.

[Major Lord]

River Aux........Its the Posse Comitatus Act.  In Ca. its defined in Penal Code 150.

Every able-bodied person above 18 years of age who neglects or refuses to join the posse comitatus or power of the county, by neglecting or refusing to aid and assist in the taking or arresting any person against whom there may be issued process or by neglecting to aid and assist in the retaking any person who, after being arrested or confined may have escaped from arrest or imprisonment, or by neglecting or refusing to aid and assist in preventing any breach of the peace, or the commission of any criminal offense, being thereto lawfully required by any uniformed peace officer or by any peace officer designated in PC830.1, who identifies himself or herself with a badge and or identification card issued by the officers employing agency, or by any judge, is punishable buy a fine of not less than $50 and not more than $1000.

Its a misdemeanor. 

So in other words, as you can see as I said above, an officer ordering your female Lt to search his prisoner doesnt fall under Posse Comitatus.  Assist in making the arrest, or preventing any breach of peace.  Not searching your suspect after the arrest is made because the officer is worried about a law suit.  Thats why I made the comment when asked, that I would tell the cop to "do his job". Its intended for summoning help in an extreme situation.

Flying Pig, not to be a nit picker, but "Posse Comitatus" is an axiom of the common law, allowing law enforcement to call the citizenry to their aid. The Posse Comitatus Act is a crimininal law, part of the U.S. Code. There has never been a prosecution of a violation of the PCA in the entire history of the United States. Thre are hundrdeds of exemptions in it. The Air Force does not consider CAP to even be subject to Posse Comitatus. Right on on the CA Penal code!

Capt.