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Holding Pattern
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Posts: 1,487
Unit: Victory

« on: July 03, 2019, 10:37:46 PM »

In AUX ON status, there are several rules, regulations, and laws that apply to us that to my understanding have zero applicability to CAP the corporation or to members of CAP when not operating in an AUX ON status. One that always gets brought up but never analyzed deeply (IMO) is the Posse Comitatus Act (hereafter PCA).

Now, even a most basic reading of the act will tell you its purpose: To limit the powers of the federal government in using federal military personnel to enforce domestic policies within the United States.

Well as so many people here are fond of pointing out, we aren't the military, and we aren't part of the #totalforce except under very carefully defined circumstances.

It therefore follows that in AUX OFF status, there is zero way that the PCA can apply to us. Yet I've heard that used as the reason we can't do incredibly basic things like be flight line monitors, doorway greeters, or traffic directors in parking lots. In other areas I've heard it used as the reason we can't be used for evidence recovery when police are doing remains searches.

Is my understanding of the PCA flawed? Should we as AUX OFF members of the CAP corporation be allowed to do the things that any other VOAD would do in similar circumstances?
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NovemberWhiskey
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Posts: 77
Unit: NER-NY-301

« Reply #1 on: July 03, 2019, 10:45:33 PM »

As far I know: no, it's not flawed. The Air Force General Counsel issued an interpretation letter indicating that CAP was generally not subject to the Posse Comitatus Act unless participating in an Air Force directed mission.
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arajca
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« Reply #2 on: July 03, 2019, 10:48:19 PM »

As I've been told the PCA also applies to any equip CAP has that was provided or funded by the AF such as vehicles, radios, aircraft, uniforms from DLA-DS, ABUs from the MCSS when CAP was first approved to wear them...
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Eclipse
Too Much Free Time With Silver Clasp
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Posts: 30,267

« Reply #3 on: July 03, 2019, 11:19:53 PM »

It therefore follows that in AUX OFF status, there is zero way that the PCA can apply to us. Yet I've heard that used as the reason we can't do incredibly basic things like be flight line monitors, doorway greeters, or traffic directors in parking lots. In other areas I've heard it used as the reason we can't be used for evidence recovery when police are doing remains searches.

There is no restriction on CAP being a flight line monitor, door greeter, or traffic director. The problem comes
in with the fact that CAP is not, and cannot (by it's own regulations), act as law enforcement, so it has no power
to stop anyone who isn't going with the flow voluntarily.

A CAP member has no power or authority to force anyone to comply with their directives, so if a 10 year old girl
runs past a member on a flight line, all they can do is yell "halt".

That sets up the perception of authority where none actually exists, and risks everything from the above to
drunk guys with a chip who want to prove their manhood to the girlfriend.

When directing traffic, if a CAP member tells someone to stop, and they don't, they are powerless to enforce anything.
However if they point a car into another car, and there is property damage or someone is hurt, they are potentially liable.

With all that said, it's not prohibited by PCA, per se, and is done all the time in CAP.

NHQ has made the argument for years that border surveillance and counter drug are done as the corporation and not the
auxiliary.  Most informed people take that for what it is.
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Holding Pattern
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« Reply #4 on: July 05, 2019, 05:48:35 AM »

As far I know: no, it's not flawed. The Air Force General Counsel issued an interpretation letter indicating that CAP was generally not subject to the Posse Comitatus Act unless participating in an Air Force directed mission.

Do you have a link to that letter?
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Mitchell 1969
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« Reply #5 on: July 05, 2019, 09:41:27 AM »

In AUX ON status, there are several rules, regulations, and laws that apply to us that to my understanding have zero applicability to CAP the corporation or to members of CAP when not operating in an AUX ON status. One that always gets brought up but never analyzed deeply (IMO) is the Posse Comitatus Act (hereafter PCA).

Now, even a most basic reading of the act will tell you its purpose: To limit the powers of the federal government in using federal military personnel to enforce domestic policies within the United States.

Well as so many people here are fond of pointing out, we aren't the military, and we aren't part of the #totalforce except under very carefully defined circumstances.

It therefore follows that in AUX OFF status, there is zero way that the PCA can apply to us. Yet I've heard that used as the reason we can't do incredibly basic things like be flight line monitors, doorway greeters, or traffic directors in parking lots. In other areas I've heard it used as the reason we can't be used for evidence recovery when police are doing remains searches.

Is my understanding of the PCA flawed? Should we as AUX OFF members of the CAP corporation be allowed to do the things that any other VOAD would do in similar circumstances?

Posse Comitatus is usually translated to mean ďpower of the County,Ē ie allowing the Sheriff to call upon the citizenry to act in matters of law enforcement, under the authority of the Sheriff. The theory, often with different statutory definitions, is often extended to city and state governments.

The fact that it is local government which is empowered to use PC is a big tip-off that using CAP for flight line monitors, doorway greeters or traffic directors in parking lots are most likely not prohibited by PC. None of those activities require law enforcement authority per se, especially if the venue is not a government owned one. The only time Iíve seen law enforcement officers deployed as flight line monitors at a civilian airport s when the flight line includes a Special Air Mission aircraft (think Air Force One) or, rarely, a military aircraft requiring 24/7 stationing of protective services (usually USAF, but with local PD liaison).

Cities and counties all over the US employ civilian traffic control people, without law enforcement authority but sometimes having citation authority. But simply directing traffic requires neither. Also. venues such as shopping malls, Disneyland, concerts etc often use traffic controllers who are armed with nothing more than a whistle, if that. In all of those cases, any need for LE authority is satisfied by calling LE.

It isnít PC that keeps CAP or any other organization from searches for human remains. Iíve used police officers, security officers, airport maintenance workers for those searches. Looking requires no special authority. However, RETRIEVAL is another matter, but even that isnít a OC issue - it is a chain of custody issue. Nobody needs 50 people each retrieving a fingernail or a piece of bone or tissue. In one incident memorable for its scope, we set it up so that a large group of searchers were spread out. If any one of them located an item of personal property, theyíd raise their left hand, which would result in an FBI agent and a police sergeant responding. A quick look for evidentiary value would be made. If there was no such value, the items would be turned over to the air carrier rep for return to family as personal effects. If possible human remains were located, right hand would go up, with police sergeant and Deputy Coroner responding. If it was determined to be human remains, Deputy Coroner would keep it.

Youíve received other answers regarding the practicalities and I wonít repeat them. Iím just posting this reply to clear up what appears to be some folklore and ďsea storiesĒ that were passed along to you, somehow turning posse comitatus i to something it isnít. 



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Bernard J. Wilson, Major, CAP

Mitchell 1969; Earhart 1971; Eaker 1973. Cadet Flying Encampment, License, 1970. IACE New Zealand 1971; IACE Korea 1973.

CAP has been bery, bery good to me.
xyzzy
Member

Posts: 69

« Reply #6 on: July 05, 2019, 11:02:21 AM »

Who is authorized to control traffic on public roads varies by state. Back in the 1980s or 90s in New York State, with a few specific exceptions, one had to be a "peace officer" to control traffic. Volunteer departments would train some of their members and designate them as "fire police"; they had the authority to direct traffic while other firefighters did not. It's possible that the New York State laws have been relaxed since the time I was a volunteer firefighter there.

Not terribly relevant to posse comitatus but very relevant to ground teams. Know the state laws before you start directing traffic.
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OldGuy
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Posts: 675
Unit: TBKS

« Reply #7 on: July 05, 2019, 01:59:20 PM »

ASSISTANCE TO LAW ENFORCEMENT OFFICIALS
CAP may provide passive assistance to law enforcement officers and agencies;
according to CAP 900-3 "Civil Air Patrol units and CAP members engaged in CAP
activities may provide passive assistance to law enforcement officers and agencies."
CAP assistance to law enforcement agencies which may lead to criminal prosecution is
restricted to patrol, reconnaissance, and reporting only. Assistance may also be a byproduct
 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. When requested by proper
authorities, CAP members may provide crash site surveillance and/or crowd control
duties during an emergency/disaster situation. When on such a mission, the senior CAP
member present will ensure the above restrictions are understood and will contact the
nearest law enforcement officer if assistance is required.
CAP may not- 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. CAP members may not carry firearms. (Exceptions for Law
Enforcement Officials and survival gear may be found in CAPR 900-3)
How CAP gets involved: Requests for such assistance, unless of an emergency nature,
must be approved in advance by the Wing and Region Commanders and coordinated
with HQ CAP/DO through the National Operations Center. All CAP flights will be in
accordance with CAPR 60-1.
COUNTER DRUG
Because of the impact drugs have had on the US, Congress has authorized the DoD to
provide support for counter-drug operations. However CAP cannot become involved
directly in law enforcement because of the Posse Comitatus Act. The Posse Comitatus
Act directly limits CAP's support to civilian law enforcement. There are statutory
exceptions that provide for limited indirect support to civilian law enforcement agencies
that are charged with implementing the anti-drug laws. (CAPR 60-6)
CAP may provide detection, monitoring and communication of movement of air and sea
traffic. CAP may perform aerial reconnaissance of property but not surveillance of
people. CAP may operate equipment to facilitate communications in connection with
counterdrug law enforcement operations. CAP may provide repeater aircraft, operate
CAP radio equipment in support of counterdrug activities, and transport civilian law
enforcement agents in support of counterdrug operations (CAPR 60-6). To participate in
this type of operations requires additional applications, training and background checks.
Contact your group or wing CDO.)
"CAP may not give direct law enforcement assistance to civil authorities and may not be
used to execute the laws of, or to perform civilian enforcement functions within, the
United States directly, such as in arrest, search and seizure, stop and frisk, or
interdiction of vessels, aircraft, or vehicles. CAP may not conduct surveillance or
pursuit of individuals. CAP personnel may not act as informants, undercover agents, or
investigators." (CAPR 60-6)
How CAP Gets involved - CAP has established relationships with DEA, Customs and
other agencies through Memorandums of Understanding (MOUs) discussed below.
Each MOU details how a mission is activated and who is to be involved. Generally
speaking only those actually on the mission and the Operations Officer and Wing
Commander will know about a mission.
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Eclipse
Too Much Free Time With Silver Clasp
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Posts: 30,267

« Reply #8 on: July 05, 2019, 07:54:50 PM »

In every missing person situation I've been involved in, as soon as there is any whiff of
foul play, CAP was called off, even if the general public are still out searching, because
it's now a law enforcement / PCA issue.

The whole "surveillance vs. observation" thing is a mine field as well, that is the basis
of CAP being able fly borders flights in the Southwest.

However the whole issue is academic until someone makes a PCA challenge to a given activity,
in which case that challenge is generally going to be against the organizaiton, not any given
person.

You're not likely to see approved CAP Missions or activities that aren't at least scratch-pad justifiable
from a PCA perspective. 

Individual actions are a different matter, and if individual members do something that violates PCA,
they are also violating CAP regs, and should be shown the door.
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TheSkyHornet
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Posts: 1,882

« Reply #9 on: July 05, 2019, 08:55:59 PM »

^ Is that maybe a local issue?

I've known ground teams here that have not had that same experience.
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NovemberWhiskey
Member

Posts: 77
Unit: NER-NY-301

« Reply #10 on: July 06, 2019, 01:12:01 AM »

Do you have a link to that letter?

https://biotech.law.lsu.edu/blaw/DOD/manual/Full%20text%20documents/Other%20Relevant%20References/Posse-Comitatus-Guidance-FINAL.pdf
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Mitchell 1969
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Unit: PCR-CA-051

« Reply #11 on: July 06, 2019, 03:08:43 AM »

Who is authorized to control traffic on public roads varies by state. Back in the 1980s or 90s in New York State, with a few specific exceptions, one had to be a "peace officer" to control traffic. Volunteer departments would train some of their members and designate them as "fire police"; they had the authority to direct traffic while other firefighters did not. It's possible that the New York State laws have been relaxed since the time I was a volunteer firefighter there.

Not terribly relevant to posse comitatus but very relevant to ground teams. Know the state laws before you start directing traffic.

I canít recall ever seeing CAP tasked with controlling traffic on public roads. More likely in parking lots for air shows or other scheduled events.


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Bernard J. Wilson, Major, CAP

Mitchell 1969; Earhart 1971; Eaker 1973. Cadet Flying Encampment, License, 1970. IACE New Zealand 1971; IACE Korea 1973.

CAP has been bery, bery good to me.
OldGuy
Salty & Seasoned Contributor

Posts: 675
Unit: TBKS

« Reply #12 on: July 06, 2019, 03:12:36 AM »

Who is authorized to control traffic on public roads varies by state. Back in the 1980s or 90s in New York State, with a few specific exceptions, one had to be a "peace officer" to control traffic. Volunteer departments would train some of their members and designate them as "fire police"; they had the authority to direct traffic while other firefighters did not. It's possible that the New York State laws have been relaxed since the time I was a volunteer firefighter there.

Not terribly relevant to posse comitatus but very relevant to ground teams. Know the state laws before you start directing traffic.

I canít recall ever seeing CAP tasked with controlling traffic on public roads. More likely in parking lots for air shows or other scheduled events.


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During the Long Beach Grand Prix (1976/77/78 era) we did crowd control on the streets of Long Beach, CA.
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Mitchell 1969
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Unit: PCR-CA-051

« Reply #13 on: July 06, 2019, 03:22:36 AM »

Who is authorized to control traffic on public roads varies by state. Back in the 1980s or 90s in New York State, with a few specific exceptions, one had to be a "peace officer" to control traffic. Volunteer departments would train some of their members and designate them as "fire police"; they had the authority to direct traffic while other firefighters did not. It's possible that the New York State laws have been relaxed since the time I was a volunteer firefighter there.

Not terribly relevant to posse comitatus but very relevant to ground teams. Know the state laws before you start directing traffic.

I canít recall ever seeing CAP tasked with controlling traffic on public roads. More likely in parking lots for air shows or other scheduled events.


Sent from my iPhone using Tapatalk
During the Long Beach Grand Prix (1976/77/78 era) we did crowd control on the streets of Long Beach, CA.

But Iíll betcha a buck that CAP was not assigned to perform traffic control on public streets during the Grand Prix, which is the matter under discussion in the post that you quoted. (Crowd control in itself does not require any law enforcement authority unless and until somebody refuses to comply, in which case a call to LE is the next action).


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Bernard J. Wilson, Major, CAP

Mitchell 1969; Earhart 1971; Eaker 1973. Cadet Flying Encampment, License, 1970. IACE New Zealand 1971; IACE Korea 1973.

CAP has been bery, bery good to me.
OldGuy
Salty & Seasoned Contributor

Posts: 675
Unit: TBKS

« Reply #14 on: July 06, 2019, 03:26:40 AM »

Who is authorized to control traffic on public roads varies by state. Back in the 1980s or 90s in New York State, with a few specific exceptions, one had to be a "peace officer" to control traffic. Volunteer departments would train some of their members and designate them as "fire police"; they had the authority to direct traffic while other firefighters did not. It's possible that the New York State laws have been relaxed since the time I was a volunteer firefighter there.

Not terribly relevant to posse comitatus but very relevant to ground teams. Know the state laws before you start directing traffic.

I canít recall ever seeing CAP tasked with controlling traffic on public roads. More likely in parking lots for air shows or other scheduled events.


Sent from my iPhone using Tapatalk
During the Long Beach Grand Prix (1976/77/78 era) we did crowd control on the streets of Long Beach, CA.

But Iíll betcha a buck that CAP was not assigned to perform traffic control on public streets during the Grand Prix, which is the matter under discussion in the post that you quoted. (Crowd control in itself does not require any law enforcement authority unless and until somebody refuses to comply, in which case a call to LE is the next action).


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I have a vague recollection of doing traffic control, possibly at the parking lots. That was a long time ago.
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baronet68
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McChord.org
« Reply #15 on: July 06, 2019, 08:49:32 AM »


I canít recall ever seeing CAP tasked with controlling traffic on public roads. More likely in parking lots for air shows or other scheduled events.


During the Long Beach Grand Prix (1976/77/78 era) we did crowd control on the streets of Long Beach, CA.


But Iíll betcha a buck that CAP was not assigned to perform traffic control on public streets during the Grand Prix, which is the matter under discussion in the post that you quoted. (Crowd control in itself does not require any law enforcement authority unless and until somebody refuses to comply, in which case a call to LE is the next action).


I have a vague recollection of doing traffic control, possibly at the parking lots. That was a long time ago.


1984-88, there is a county in my state that grows a certain tulip-shaped flower, for which there is a large festival that ties up traffic all throughout the county.

As cadets, we were tasked with traffic control on a one-mile stretch of a public road, for an entire week.  We were sometimes assigned in pairs, but often stationed at intersections alone and without a senior member anywhere to be seen.  Occasionally, the Sheriff Deputies or a State Patrol Trooper might stop by to see how we were doing but we were pretty doing our own thing. None of us were deputized, ordained, or even trained beforehand.  The police just needed every warm body they could get to deal with the miles of bumper-to-bumper traffic.  It took them about 5 years to figure out ways to route/limit traffic to make it a less chaotic and once they solved the problem, we were never called again.
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Michael Moore, Maj, CAP
Secret Wing Staff Dude, WAWG
Holding Pattern
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Unit: Victory

« Reply #16 on: July 06, 2019, 09:30:35 AM »

I finally found supporting documentation:

https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/302521p.pdf

DODI NUMBER 3025.21

Section 1 covers all the restrictions, Section 2 covers the exceptions. S2 mentions:

2.  EXCEPTIONS BASED ON STATUS.  The restrictions in section 1 of this enclosure do not apply to:

e.  A member of the Civil Air Patrol, except when performing missions pursuant to section 9442(b) of Reference (d).

I think that covers that.
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TheSkyHornet
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Posts: 1,882

« Reply #17 on: July 06, 2019, 01:36:26 PM »

Are we really going to argue how we conducted traffic control during the 1970s and 1980s?

Welcome to the Millennium, gents.
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Luis R. Ramos
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Posts: 2,813

« Reply #18 on: July 06, 2019, 08:46:08 PM »

Currently New York City Group is asked to assist with the Tunnel to Towers Marathon from Brooklyn to Manhattan NY.

We first place barrier tape and police barricades along a long sidewalk stretch from the Ikea parking lot to the Brooklyn end of the Brooklyn Battery Tunnel. After this, cadets and seniors man crosswalks to stop cars at corners so registered runners can cross or stop these runners from crossing so cars can cross. There is NYPD presence, but most of these crossing guard duties are done by New York City Group volunteers. Usually a squadron of Connecticut Wing also helps with the same duties.
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Fubar
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Posts: 790

« Reply #19 on: July 07, 2019, 02:01:32 AM »

The Blue Beret NCSA has cadets acting as security all the time. So far, to my knowledge, they haven't attempted to arrest anyone.
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