1. DLIFLC & POM DLIFLC & POM Rules for Use of Force, Search and Seizure, and Jurisdiction CPT Greg Weiss Chief, Military Justice 242-6394

2. DLIFLC & POM DLIFLC & POM AGENDA Jurisdiction Rules for Use of Force (RUF) Search and Seizure

3. DLIFLC & POM DLIFLC & POM JURISDICTION

4. DLIFLC & POM DLIFLC & POM Agenda Posse Comitatus Act (PCA) Exceptions Arrest versus Apprehension Situations

5. DLIFLC & POM DLIFLC & POM Posse Comitatus Act Posse Comitatus Act - 18 USC 1385: Military Forces cannot “execute the laws of the state” without Congressional or Constitutional authorization. Violations of the PCA

6. DLIFLC & POM DLIFLC & POM Posse Comitatus Act 1-149 th power: Derived from the Installation Commander’s inherent authority to protect the Installation POMPD = Department of the Army Police Same derivation of power Not Federal DOD Police No off-post jurisdictional powers CPC 830.2 Liability Representation and Indemnification Bivens

7. DLIFLC & POM DLIFLC & POM Posse Comitatus Act Prohibitions include: Off-Post confrontations with civilians in official capacity Travelling off-post in official capacity to enforce civilian laws Investigating off-post offenses by civilians Aiding LEA in non-military owned area Let the Civilian Police Authority Handle

8. DLIFLC & POM DLIFLC & POM Posse Comitatus Act You cannot: Escort money couriers off-post Use privately owned weapons on-duty Have a Police Identification Card

9. DLIFLC & POM DLIFLC & POM Posse Comitatus Act Sovereign Immunity and the PCA Criminal and Civil Liability Examples Idaho v. Horiuchi JTF-6

10. DLIFLC & POM DLIFLC & POM PCA Exceptions  Military Purpose Doctrine Emergencies Involving Imminent Danger to Life and Property Citizen’s Arrest Hot Pursuit

11. DLIFLC & POM DLIFLC & POM PCA Exceptions Military Purpose Doctrine: law enforcement actions primarily for a military purpose Incidental support to civilian authorities

12. DLIFLC & POM DLIFLC & POM PCA Exceptions “ Military Purpose”: To protect the safety, security and well-being of the installation and its inhabitants To ensure that the good order and discipline of the Installation is not compromised DOD Directive 5525.5

13. DLIFLC & POM DLIFLC & POM PCA Exceptions “Emergency” in the civilian community; and, Military is needed immediately for aid and assistance. Example - A bomb has blown up Del Monte Shopping Center, thousands of casualties, and Monterey Police need help in securing the area. Example of Non-Emergency - Civil disturbance off-post where the civilian police asked for help containing a protest.

14. DLIFLC & POM DLIFLC & POM PCA Exceptions Hot Pursuit - Felony committed on-post and military law enforcement pursues of civilian off-post. Contemporaneous with crime. Turn over to local authorities upon apprehension.

15. DLIFLC & POM DLIFLC & POM PCA Exceptions Citizen’s Arrest Acting solely as a private citizen. Officer does not have to surrender “indicia of his authority.” Phoenix v. State.

16. DLIFLC & POM DLIFLC & POM Arrest vs. Apprehension “Formal Arrest” “Apprehend” Misdemeanor Felony Temporary Detention Reasonable time

17. DLIFLC & POM DLIFLC & POM Arrest vs. Apprehension Military members can be apprehended on- post. Civilians can be apprehended on-post because commander has inherent authority to protect installation/military purpose. Immediately turn over to the correct jurisdictional body or escort off the post.

18. DLIFLC & POM DLIFLC & POM PVT Snuffy is Hurt PVT Snuffy is being assaulted by a gang off-post. One of Snuffy’s friends runs on-post and asks you to render assistance. What do you do?

19. DLIFLC & POM DLIFLC & POM Party at CSUMB A huge party is occurring at CSUMB dorms. As you are driving to OMC to turn in a vehicle, a CSUMB Police Officer asks for your help to break up the party. What should you do?

20. DLIFLC & POM DLIFLC & POM Stop that Thief A civilian commits an armed robbery at the PX on the Presidio. POMPD is dispatched and begins to pursue the civilian’s vehicle. The civilian leaves post. What do you do?

21. DLIFLC & POM DLIFLC & POM Drunk Driver You are working at the Franklin Street gate at 0230 when a soldier tries to pull onto the POM. You detect a strong odor of alcohol on her breath. What should you do?

22. DLIFLC & POM DLIFLC & POM RULES FOR THE USE OF FORCE

23. DLIFLC & POM DLIFLC & POM RULES FOR THE USE OF FORCE (RUF) Reference: AR 190-14, Carrying of Firearms and Use of Force for Law Enforcement and Security Duties”

24. DLIFLC & POM DLIFLC & POM RUF v. ROE RUF are escalating rules used for CONUS military personnel performing security duties when dealing with U.S. civilians. Rules of Engagement (ROE) are directives delineating the circumstances and limitations military forces will initiate or continue combat engagement with other forces.

25. DLIFLC & POM DLIFLC & POM RUF: Definitions Deadly Force: creates a substantial risk of death or serious bodily harm. Serious Bodily Harm: not minor injuries, such as a bloody nose, but deep cuts, serious damage to the internal organs, and other life- threatening injuries. Shooting at a person, even if you aim to wound, is deadly force. Shooting at an occupied vehicle, even if you aim at the tires, is deadly force.

26. DLIFLC & POM DLIFLC & POM RUF: Definitions HOSTILE ACT : Hostile act includes throwing rocks, shooting, bombing. A hostile act triggers the right to use force in self-defense. The amount of force depends on the act.

27. DLIFLC & POM DLIFLC & POM RUF: Definitions HOSTILE INTENT: The threat of imminent use of force against US forces or property. When hostile intent is present, you have the right to use force to deter, neutralize, or destroy the threat. The amount of force depends on what is threatened. Examples?

28. DLIFLC & POM DLIFLC & POM RUF: Overview POM PD has the lead in force protection. They have special training to recognize and handle threats. Non-MP soldiers augment POM PD.

29. DLIFLC & POM DLIFLC & POM AR 190-14 RUF NOTHING IN THESE RULES PROHIBITS YOU FROM EXERCISING YOUR INHERENT RIGHT OF SELF-DEFENSE. YOU ALWAYS HAVE THE RIGHT AND OBLIGATION TO DEFEND YOURSELF AND OTHERS IN YOUR UNIT. Use minimum force necessary Use deadly force only as a last resort

30. DLIFLC & POM DLIFLC & POM WHEN DECIDING HOW TO REACT TO A THREAT... Always consider: What is the present local threat? Where are you? What are you protecting?

31. DLIFLC & POM DLIFLC & POM ESCALATING FORCE 1.Assess each situation individually. What is the threat? 2.Start with the minimum amount of force required to respond to the threat. 3.If possible, escalate the amount of force you use in steps until the situation is handled.

32. DLIFLC & POM DLIFLC & POM Escalating Degrees of Force When the situation permits: 1.SHOUT verbal warnings to halt. 2.SHOVE non-lethal physical force 3.SHOW intent to use weapon. 4.SHOOT with deliberately aimed shots until it is no longer a threat Warning shots are prohibited

33. DLIFLC & POM DLIFLC & POM ESCALATING FORCE Use Deadly Force Only: In conditions of extreme necessity; as a last resort; when all lesser means have failed or cannot reasonably be employed, AND there is a threat to: U.S. personnel; or, weapons dangerous to others. Examples

34. DLIFLC & POM DLIFLC & POM DEADLY FORCE Protect Self or Others against death or serious injury Protect property designated as vital to national security Protect assets inherently dangerous to others (weapons, ammunition) Regardless of what property is threatened, use deadly force only if absolutely necessary to protect it.

35. DLIFLC & POM DLIFLC & POM WHEN YOU SHOOT… Backstop: what is behind your target. Fire with due regard for safety of innocent bystanders Shoot at the threat with deliberately aimed shots until it is no longer a threat NO warning shots

36. DLIFLC & POM DLIFLC & POM PERSON REFUSES VEHICLE SEARCH You are on duty at an ACP performing vehicle checks when a car pulls up and stops. The civilian occupant hands you an ID card, but refuses to allow you to search his vehicle.

37. DLIFLC & POM DLIFLC & POM PERSON REFUSES VEHICLE SEARCH-- SOLUTION DO NOT give the ID card back until the situation is resolved. Direct the driver to pull his vehicle to the side, and remain until POM PD arrives. Call POM PD. If the person is uncooperative or belligerent, only use force if faced with a hostile act or intent. If you must use force, use the minimum force necessary.

38. DLIFLC & POM DLIFLC & POM FENCE JUMPER You are on duty when you spot a man in civilian clothes climbing over a fence into the installation.

39. DLIFLC & POM DLIFLC & POM FENCE JUMPER-- SOLUTION Order the man to stop or halt. Call POM PD. If the man does not have a weapon, use only non-deadly force.

40. DLIFLC & POM DLIFLC & POM CAR RUNS CHECKPOINT You are on duty at the Bolio Gate ACP, performing vehicle checks, when a car pulls up and stops. A woman smiles at you and fumbles for her identification. Before you realize what’s happening, she races through the checkpoint onto the installation.

41. DLIFLC & POM DLIFLC & POM CAR RUNS CHECKPOINT-- SOLUTION Note description of driver and vehicle, license number, and direction of travel. Call POM PD.

42. DLIFLC & POM DLIFLC & POM DELIVERY TRUCK RUNS CHECKPOINT You are on duty at the Bolio ACP. A delivery truck approaches your checkpoint, hesitates, then speeds off the pavement in an attempt to go around the checkpoint by using the sidewalk (where your shift-mate is standing).

43. DLIFLC & POM DLIFLC & POM DELIVERY TRUCK RUNS CHECKPOINT--SOLUTION Driving the truck toward the guard is a hostile act. Stop the truck by firing. Fire with due regard for the safety of bystanders. Call POM PD. Secure the perimeter but do not approach the vehicle. Keep area around vehicle clear. POM PD will apprehend occupants. If you cannot disable the truck, provide the license number and vehicle description to POM PD.

44. DLIFLC & POM DLIFLC & POM DELIVERY TRUCK RUNS CHECKPOINT II You are on duty at the Bolio ACP. At 0330 hours a delivery truck approaches your checkpoint, and before you get out of the guard-shack, the truck speeds past the checkpoint onto the installation.

45. DLIFLC & POM DLIFLC & POM DELIVERY TRUCK RUNS CHECKPOINT II--Solution Note description of driver and vehicle, license number, and direction of travel. Call POM PD.

46. DLIFLC & POM DLIFLC & POM MAN WITH GUN-I You are on duty at the Franklin ACP performing vehicle checks when a vehicle approaches. The man inside the vehicle pulls a weapon from beneath the seat and points it at you.

47. DLIFLC & POM DLIFLC & POM MAN WITH GUN-I SOLUTION Pointing a weapon at you is hostile intent. Shoot the driver until he is no longer a threat. Call an ambulance and the MPs.

48. DLIFLC & POM DLIFLC & POM MAN WITH GUN-II You are on duty at the Franklin ACP performing vehicle checks when a vehicle approaches. You ask the driver of a vehicle “Do you have any weapons in the vehicle?” The man inside the responds, “Yes.”

49. DLIFLC & POM DLIFLC & POM MAN WITH GUN-II SOLUTION DO NOT give the ID card back until the situation is resolved. Ask the driver where the weapon is located. If the weapon is not within the driver’s immediate control, direct the driver to pull his vehicle to the side, and remain until POM PD arrives. Call POM PD. If the person is uncooperative or belligerent, use only the amount of force necessary to control the threat.

50. DLIFLC & POM DLIFLC & POM 4th Amendment Search and Seizure

51. DLIFLC & POM DLIFLC & POM U.S. CONSTITUTION “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

52. DLIFLC & POM DLIFLC & POM RIGHT TO PRIVACY To be reasonable: 1. The person must have an actual subjective expectation of privacy; and, 2. 2.Society must recognize the expectation as objectively reasonable. If reasonable expectation of privacy, no search without…

53. DLIFLC & POM DLIFLC & POM THE 4TH AMENDMENT PROTECTION RULE: If there is a reasonable expectation of privacy, you need a search authorization Who can authorize a search? Commanders, judges, or magistrates - Who have authority over the place to be searched, and, Who have not participated in the investigation; AND, Who have determined that probable cause exists for the search.

54. DLIFLC & POM DLIFLC & POM AUTHORITY and PROBABLE CAUSE Authority: Posse Comitatus Act Military Property Probable Cause: Reasonable belief that: A crime has been committed; and Evidence of the crime is in the place to be searched

55. DLIFLC & POM DLIFLC & POM NO REASONABLE EXPECTATION OF PRIVACY Inspections - Health & Welfare Primary purpose -- ensure the security, fitness and good order and discipline of unit Inspections can be random or 100%, but not be targeted Consent Searches Government Property Plain View

56. DLIFLC & POM DLIFLC & POM EXCEPTIONS TO PROBABLE CAUSE REQUIREMENT Plain View: Contraband nature must be readily apparent Consent: Must be voluntary and may be withdrawn at any time Exigent Circumstances Search Incident to Apprehension Automobiles

57. DLIFLC & POM DLIFLC & POM OTHER EXCEPTIONS Stop and Frisk General Rule: May “Stop and Frisk” person based on less than probable cause (“reasonable suspicion”) where important government interests outweigh the limited invasion of a suspect’s privacy. Stop: A brief, investigatory detention based on reasonable suspicion accompanied by a limited search. Frisk: To pat down suspect for weapons when he is reasonably believed to be armed and dangerous. Plain feel. Police may seize contraband items felt during frisk if their contraband nature is readily apparent.

58. DLIFLC & POM DLIFLC & POM AUTOMOBILES Inspections Areas where Item may reasonable be located Probable cause searches Contraband or evidence may reasonably be located Searches incident to arrest Contemporaneous with arrest Wingspan Safety

59. DLIFLC & POM DLIFLC & POM SEIZURE OF ITEMS DURING A SEARCH You may seize all contraband: drugs, weapons, etc. Inventory all items seized Write statement giving details Secure items Bodily fluids

60. DLIFLC & POM DLIFLC & POM WHEN IN DOUBT Do only what is necessary to freeze the situation Call POM PD Do what is necessary to prevent destruction of evidence

61. DLIFLC & POM DLIFLC & POM EXCLUSIONARY RULE Evidence obtained as a result on an unlawful search or seizure in violation of an accused’s 4th Amendment rights will be suppressed. It is inadmissible against the accused.

62. DLIFLC & POM DLIFLC & POM 5 th Amendment Rights Custody + Interrogation = 5 th Amendment Rights Arises after detention/ apprehension Temporary detention = custody Any questions = interrogation POM PD should both read rights and question suspects

63. DLIFLC & POM DLIFLC & POM Questions? CPT Greg Weiss Chief, Military Justice 242-6394