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mandated a two-prong analysis to determine whether an official was entitled to qualified immunity.
First, a court was required to decide: 1) “whether the facts alleged or shown by the plaintiff make
out a violation of a constitutional right, and (2) if so, whether that right was ‘clearly established’ at
the time of the defendant’s alleged misconduct.”49 This analysis was to be strictly applied and
provided an analytical paradigm that often served to direct early disposition of cases in favor of the
official without the need for extensive and costly pretrial discovery and litigation.
In Pearson however, the Supreme Court effectively reversed its position in Saucier by holding that
lower courts were no longer bound to the rigid two-prong analysis. The Court noted, however, that
the Saucier case could still be used as an appropriate analytical paradigm by lower courts in their
discretion, but that lower courts were no longer required to use the Saucier procedure.50
Saucier remains an important qualified immunity case; however, in light of Pearson and the
difficulties lower courts have had with the Saucier analysis, it is uncertain how effective its analysis
will be for those attempting to assert its procedure to establish qualified immunity.
b. State and local government use of force cases are usually based on a civil cause of
action created by 42 U.S.C. § 1983
Section 1983 has evolved into an effective basis for citizens to seek damages for alleged violations
of their rights by governmental organizations or their employees under the Fourteenth Amendment.
Section 1983 liability has also been extended to apply to those who are involved in use of force
policy and training decisions. These individuals have been found liable for civil damages if their
decisions and work contributed to an improper use of force by an individual law enforcement or
security person.51 As the SRUF specifically directs that commanders at all levels must train their
subordinates on the use of both deadly and non-deadly force,52 failure to do so may expose
commanders, their Soldiers, their advisors, and the U.S. Government to a host of legal
consequences as discussed below.
49
Saucier, 533 U.S. at 194.
50 Pearson, 555 U.S. at 223.
51 A supervisor who causes a constitutional violation by a “deliberate indifference” to constitutional standards in proper
training for officers may be liable under a Section 1983 cause of action. City of Canton v. Harris, 489 U.S. 378, 388-89
(1989). While agencies can be found liable for a lack of proper training on deadly force, agency officials have also been
found liable for a lack of training on non-deadly force (Davis v. Mason County, 927 F.2d 1473, 1483 (9th Cir. 1991))
and for training conducted that was insufficient (e.g., Berry v. city of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994)). The
judge advocate advising a commander on RUF for a domestic operation should compare the difference in effort and
attention to law between military RUF practice and the comparable efforts of federal law enforcement agencies. While
Section 1983 may provide plaintiffs with a compensable claim after a use of force encounter as a result of a failure to
train, the FTCA could also provide a potential remedy when a training requirement existed and it was either not
accomplished or it can be demonstrated that the training was inadequate or failed to apply the proper standards.
Ironically, it is conceivable that a third party that could have been covered under “defense of others” could argue the
government failed to protect him or her from other civilians and attempt to bring a claim under the FTCA alleging that
the Government was negligent in its training of RUF and it contributed to the injury suffered.
52 CJCSI 3121.01B, supra note 2, Encl. L para. 1.b.
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2.
Federal Criminal Liability
Service members could be held criminally liable for unconstitutional or illegal use of force before a
court-martial, a federal district court, and in some cases, a state court. A federal statute prohibits
use of force under the color of law that deprives any person of their constitutional or legal rights.53
Accordingly, DOJ has, in the past, investigated use of force during a domestic military operation
with a view toward seeking a Grand Jury indictment for violation of this statute.54
3.
State Civil and Criminal Liability
Immunity from federal liability (under the Supremacy Clause) will not always prevent a service
member from having to face trial in state civil or criminal proceedings. In fact, in the “Ruby
Ridge” use of force incident, a federal officer was not granted immunity from a state criminal
proceeding for the shooting of a civilian involved in an armed confrontation with the FBI.55
G. Other Trial or Litigation Issues
Judge advocates involved in post-use of force procedures and litigation should be prepared to
address a number of other issues. First, be prepared to advise commanders on the many
investigations that could occur. Second, be aware of their service’s procedures on civilian
litigation. Finally, know that service members have far less legal protection against use of force
liability than a federal law enforcement agent.
Judge advocates should know that if a service member kills or injures a civilian during a domestic
operation, a number of agencies could initiate investigations of the incident that would affect both
the service member and their service. The various units involved, their parent services, any joint
command, and the National Guard Bureau or State National Guard authorities could initiate an
administrative investigation and/or Rules for Courts-Martial (RCM) 303 inquiries.56 Commanders
are often surprised to find that the following civilian investigations could occur:
• An investigation by DOJ or the U.S. Attorney for potential federal civil or criminal disposition;
• An investigation by state, county, or municipal law enforcement authorities for state criminal
disposition; and
• An administrative investigation by the Inspector General or internal investigative element of a
federal law enforcement agency if the command was providing support to that federal agency.
Judge advocates also need to know the procedures and considerations involved when dealing with
potential civil litigation. Army Regulation 27-40, Litigation,57 Air Force Instruction 51-301, Civil
53
18 U.S.C. § 242 (2011).
54 For an excellent overview of the liability nightmare resulting from a Marine shooting that was authorized and proper
under the Rules of Engagement for JTF-6, see Lieutenant Colonel W.A. Stafford, How to Keep Military Personnel from
Going to Jail for Doing the Right Thing: Jurisdiction, ROE & the Rules of Deadly Force, ARMY LAW., Nov. 2000, at 1.
55 State of Idaho v. Horiuchi, 215 F.3d 986 (9th Cir. 2000). Interestingly, one of the critical factors in the Court’s
analysis was the fact that a supervisor had published unlawful use of force guidance. This became an issue, even
though Special Agent Horiuchi based his decision to shoot on the lawful pre-existing RUF, rather than the flawed rules
published by his team commander.
56 MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 303 (2012).
57 U.S. DEP’T OF ARMY, REG. 27-40, LITIGATION (19 Sep. 1994).
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Litigation,58 Navy Instruction 5800.7D, and Manual of the Judge Advocate General (JAGMAN)59
outline service guidelines on issues such as whether a service member will be entitled to
government-provided representation, investigation of potential litigation cases, whether the
government will indemnify the service member for damages in civil cases, and the key points of
contact when the service may be involved in litigation. Further, Army Pamphlet 27-162, Claims
Procedures,60 provides guidance on the management of potential claims against the U.S.
Government under a variety of theories and statutory authorities.61
Finally, judge advocates need to recognize that service members and commanders involved in use
of force incidents will probably have less legal and practical protection than their counterparts in
federal law enforcement. Caselaw defining the role of service members using force during
Homeland Security operations is extremely limited. Many of the cases interpreting governmental
use of force have expressly or impliedly based their interpretations of the “reasonableness” of the
force on the law enforcement status of the federal officers involved. These were qualified and
credentialed law enforcement officers with clear statutory investigative jurisdiction and duties to
uphold federal law and confront criminals. Service members performing non-traditional Homeland
Security operations may not have the benefit of this well-defined caselaw. Judges could potentially
decide cases of first impression involving service members less deferentially than they have for law
enforcement officials. Finally, Congress has not extended immunity that is routinely applied to
federal law enforcement to military domestic operations.62
H. Training of Judge Advocates
Ideally, attorney training should include the study of executive, congressional, and judicial
authorities and constraints on the use of force by government and military personnel, and tactical
skills training using both lethal and non-lethal measures. Leaders should seek opportunities for
their judge advocates to obtain basic training in the deployment of weapons in tactical
engagements.63 If available, training with police may provide them with great insight into the
58 U.S. DEP’T OF AIR FORCE, INSTR. 51-301, CIVIL LITIGATION (1 Jul. 2002).
59 U.S. DEP’T OF NAVY, OFFICE OF THE JUDGE ADVOCATE GENERAL INSTR. 5800.7D, MANUAL OF THE JUDGE
ADVOCATE GENERAL (JAGMAN) (26 Jun. 2012).
60 U.S. DEP’T OF ARMY, PAM. 27-162, CLAIMS PROCEDURES (21 Mar. 2008).
61 Claims have been paid in recent history for shootings by U.S. military personnel engaged in the performance of their
duties. For example, in 1997 U.S. Marines were sent to support the U.S. Border Patrol in Texas along the Mexican
border during a period of escalating border violence and drug related activity. Although the facts are disputed, a U.S.
person of Hispanic ancestry was under observation by U.S. Marines. The Marines claimed that the individual under
surveillance fired at them with a .22 caliber rifle that he had in his possession. The Marine claimed that he returned fire
when fired upon and he killed the individual with one shot from his M-16 rifle. There was immediate controversy that
surrounded the incident and the Navy agreed to settle the claim for an amount reported to be $1.3 million. See U.S.
Settles with Family in Fatal Border Shooting, NY TIMES (August 12, 1998), available at
62 Congress, recognizing that the scope of duties for federal law enforcement officers does not typically extend to
enforcing laws against simple assaults, homicides, and other types of violent crime, extended the scope of employment
for federal officers having to use force to prevent such violent crimes. The language of this statute does not make it
applicable to the majority of service members engaged in domestic operations. See Pub. L. 105-277, Section 101(h), as
amended by Pub. L. No. 106-58, Title VI, sect. 623, Sept. 29, 1999, often referred to as the Federal Good Samaritan
Statute.
63 Although the law that governs RUF is different than that which governs ROE, this training will assist judge
advocates that are called to assist in the development or training of either RUF or ROE, as an appreciation of the tactical
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challenges confronted by a member in a use of force situation. Although training such as this is
resource intensive and time consuming, it is difficult for judge advocates that have not been
exposed to tactical scenarios involving the use of weapons to provide comprehensive advice and
support to training the force.
If resources or time do not permit “hands on” training, the development of scenario training packets
can assist in developing better appreciation for application of the RUF. An analysis of likely
scenarios done in conjunction with a robust discussion of controlling legal authority can help
illuminate the challenges that will be faced by those who may be called to apply RUF and thus
better inform judge advocates. Further, these scenarios can be developed to highlight the challenges
that often face RUF drafters, and thus improve upon their ability to advise on the development and
application of the RUF.
use of small arms and other lethal and non-lethal weapons will improve a judge advocate’s ability to support members
and the command significantly.
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CHAPTER 11
RULES FOR THE USE OF FORCE FOR THE NATIONAL GUARD
KEY REFERENCES:
•
10 U.S.C. §§ 331-335 - The Insurrection Act.
•
18 U.S.C. § 1385 - The Posse Comitatus Act (PCA).
•
28 U.S.C. §§ 1346, 2671 - 2680 - The Federal Tort Claims Act (FTCA).
•
32 U.S.C. § 502 - Required drills and field exercises.
•
National Guard Regulation 500-1/ANGI 10-8101 - National Guard Domestic Operations, June
13, 2008.
• Emergency Management Assistance Compact (EMAC), Pub. L. No. 104-321, 110 Stat. 3877
(1996).
A. Introduction
The National Guard, or organized militia, is a federally-recognized state1 government entity, except
when called or ordered2 to federal active duty as an element of the National Guard of the United
States.3 The effect of this constitutionally-derived4 status is perhaps greatest on the rules for the use
of force (RUF) for the National Guard.5 The policies of DoD and service regulations do not apply
to the National Guard when commanded by state authorities.6 As a result, the law that is the basis
1
“State” as used here includes the fifty states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin
Islands, all of which have National Guard organizations headed by an Adjutant General (or a Commanding General in
the case of the District of Columbia National Guard) governed by state law. For example, the New York National
Guard is governed by NY Consolidated Laws Service, Military Law and the Virginia National Guard is governed by the
Code of Virginia, Title 44.
2 Members of the National Guard are called to duty under 10 U.S.C. §§ 331-333 and are ordered to duty under 10
U.S.C. §§ 12301-12304.
3 See Perpich v. Department of Defense, 496 U.S. 334 (1990).
4 The National Guard derives its state status from the Militia Clauses of the U.S. Constitution. U.S. CONST., art. I, § 8,
cl. 15, 16.
5 The law forming the bases for the Rules for the Use of Force (RUF) by the National Guard is the general criminal law
of the states. There is, therefore, no single term used to describe those rules as states have referred to them variously as
rules of engagement (ROE), rules for the use of force (RUF), rules on the use of force (ROUF), and rules of interaction
(ROI). “RUF,” as used in this chapter, is used as a generic term intended to encompass those rules of the 54 National
Guard jurisdictions which are based upon the criminal laws of those individual jurisdictions. Compare this to the
standing rules on the use of force (SRUF) in JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF
INSTRUCTION 3121.01B, STANDING RULES OF ENGAGEMENT/STANDING RULES FOR THE USE OF FORCE FOR U.S. FORCES
(13 Jun. 2005) [hereinafter CJCSI 3121.01B]. CJCSI 3121.01B is classified overall secret; the portions regarding
SRUF discussed herein are unclassified. *** NOTE: As of the publishing of this handbook, the current
SROE/SRUF remain under revision. Judge Advocates should check to see if the 2005 SROE/SRUF have been
updated before providing advice on these rules.***
6 CJCSI 3121.01B SRUF apply to the Army National Guard only when called or ordered to active duty in a federal
status under the provisions of Title 10, U.S.C. See, e.g., U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF
CIVIL AUTHORITIES (21 Sept. 2012); U.S. DEP’T OF DEFENSE, INST. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW
ENFORCEMENT AGENCIES (27 Feb. 2013).
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for National Guard RUF is the criminal law of the state in which a National Guard unit is
performing the mission.7 The drafting and application of state National Guard RUF, derived from
state law and National Guard Bureau policy,8 is the subject of this chapter.9
B. RUF and State Criminal Laws
1.
State Law Applicable to Both Title 32 and SAD Statuses
Most National Guard operations in support of civil authorities are in support of state civil
authorities and are undertaken on a state-funded basis, usually referred to as “state active duty”
(SAD).10 These types of operations include response to natural disasters, providing security during
civil disturbances, and assistance to civil authorities during other state emergencies, such as strikes
at state institutions. The notable operational exceptions include National Special Security Events
(NSSE) as discussed in Chapter 8 infra,11 the 2001-2002 National Guard airport security mission
(hereinafter airport security mission), the 2012 NATO Summit in Chicago, and the Democratic and
Republican National Conventions of 2008.12 These operations were performed in Title 32 status.13
7 A more in-depth explanation is that the criminal law of the states applies to both members of the National Guard
operating in a state status and to off-post operations (and in some instances, some on-post activities) of the active
components of the U.S. armed forces (including the National Guard called or ordered to active federal service). See
Lieutenant Colonel Wendy A. Stafford, How to Keep Military Personnel from Going to Jail for Doing the Right Thing:
Jurisdiction, ROE & the Rules of Deadly Force, ARMY LAW, Nov. 2000, at 1. The active component, because of its
federal mission, is however largely protected from the impact of state criminal law by the doctrine of federal Supremacy
Clause immunity. Judicial opinions dealing with the application of that doctrine to the military are discussed in the text
infra at subparagraph C.2.
8 National Guard Bureau policy states that use of force is governed by state law. See NATIONAL GUARD REGULATION
500-1/ANGI 10-8101 - NATIONAL GUARD DOMESTIC OPERATIONS (13 Jun. 08) [hereinafter NGR 500-1].
9 This chapter does not include consideration of state rules for the use of force applied as part of the National Guard
counter-drug program, for that see infra Chapter 7, Counterdrug Operations.
10 See generally DEP’T OF DEFENSE, DIR. 5101.83, NATIONAL GUARD JOINT FORCE HEADQUARTERS-STATE (NG
JFHQS-STATE) (5 Jan. 2011). State active duty [SAD] is a status pursuant to state law only and is funded by the state,
unlike the status in which the National Guard trains for its federal mission pursuant to Title 32 of the United States
Code [Title 32 status], which is federally funded and regulated. The National Guard in an SAD status may, however,
use certain federal equipment, subject to a requirement for reimbursement for that use. In SAD status, National Guard
Bureau and Active Army regulations do not usually apply unless the state has adopted those regulations as a matter of
state law; for more information, see Chapter 3 infra.
11 For example, the National Guard provided security support for the 1996 Summer Olympics in Atlanta, Georgia, and
the 2002 Winter Olympics in Salt Lake City, Utah.
12 The airport security mission was served as “other duty,” pursuant to 32 U.S.C. § 502(f). On September 27, 2001, the
President made a request to all of the state Governors that they call their National Guard personnel to duty, to be paid
for by the United States, according to a White House press release. Between four and five thousand National Guard
personnel served at approximately 450 commercial airports around the United States in response to the President’s
request. Additionally, New York National Guard personnel in a Title 32 status after the 9/11 terrorist attacks performed
another mission in the form of armory security. See Transcript of After Action Review Conference, Office of the Staff
Judge Advocate, State Area Command (STARC), New York Army National Guard, and the Center for Law and
Military Operations, at 17-18 (17-18 May 2002) [hereinafter NYARNG Transcript] (on file with CLAMO).
13 U.S. DEP’T OF ARMY, NATIONAL GUARD REG. 350-1, ARMY NATIONAL GUARD TRAINING, para. 2-1a(9) (3 Jun.
1991) [hereinafter NGR 350-1] (providing that Title 32 status may be used by an Adjutant General for what would
otherwise be a state (SAD) mission if the Adjutant General determines that the mission will provide a training benefit
for National Guard personnel in their federal role). At least one state, New York, chose to exercise all or part of the
airport security mission in SAD status.
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As explained in detail in Chapter 3 infra, both SAD and Title 32 statuses are non-federal and state
law applies.14 As such, it is the criminal law of the states hosting the events, i.e. the Olympics and
the conventions; that govern the RUF. In the case of airport security, missions were executed in
many of the 54 National Guard jurisdictions. Each jurisdiction in which an airport was secured by
National Guard personnel applied its own criminal law.15 Consequently, multiple sets of RUF were
used during the airport security mission. Although most rules addressed similar subjects, the
specific implementation of these rules varied depending on the jurisdiction.16 Examples of state
RUF referred to throughout this chapter are, unless otherwise indicated, the RUF of the airport
security mission.
2. Subjects for Inclusion in State RUF for the National Guard
When the National Guard executes a Title 32 or SAD mission that utilizes RUF, the subjects
appropriate for the RUF are derived from the mission operation plan or operation order
(OPLAN/OPORD). The RUF covers core state criminal law subjects such as the right of self
defense (including the retreat doctrine) necessary warning, proportionality, and location issues (for
instance the defender’s home or work place). The RUF should also address the right to carry and
discharge firearms, the authority of National Guard personnel as peace officers, and the authority
for apprehension, search, and seizure. Whether, and the extent to which, these basic RUF subjects
are included in a given OPLAN/OPORD are mission-dependent decisions.17
a. Subjects Appropriate for Inclusion in All RUF
(1) RUF Change Authority
An important element appropriate for virtually all state National Guard RUF is an explanation of the
authority to modify the RUF. If Adjutants General have delegated that authority to subordinate
commanders, then the RUF must clearly state which part(s) of the RUF may be changed, in what
manner and by whom. If the RUF contain no delegation of authority, then either the Adjutant
General or state level task force commander retains the authority. If authority to change the RUF is
wholly denied, including the authority to further restrict the RUF, then that should also be made
clear.
14 See infra Chapter 3. Note that this may not always be the case in federal use of force law liability. For example, if
National Guard personnel in a Title 32 or SAD status are inadvertently made subject to the orders and authority of a
federal commander, they could be held to a use of force standard as defined by applicable federal law.
15 The 1996 Summer Games in Georgia and the 2002 Winter Games in Utah are two examples.
16
In 2003, the Counterdrug and Operational Law Team of the Chief Counsel’s Office, National Guard Bureau,
collected and reviewed virtually all of the state RUFs used in the airport security mission. All these RUFs are retained
by that office in both paper and electronic format.
17 For example, if the mission includes the security of certain real property, then the right to search and seize and
amount of force necessary to undertake the inspection of persons and personal property entering and leaving that
location should be included in the OPLAN/OPORD or RUF.
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(2) Right of Self-Defense
Another element appropriate for inclusion in all RUF, even for unarmed security missions, is the
right to exercise reasonable and necessary force in self defense.18 Mission analysis19 and state law20
will determine whether, as part of the general right of self defense, National Guard personnel will
be armed. Judge advocates should help determine that appropriate procedural requirements
regarding the carriage of weapons have been met well before a mission. One of the early concerns
for New York Army National Guard judge advocates after the 11 September 2001 terrorist attacks
was the authority of New York National Guard personnel to carry weapons. Under New York law
“[p]ersons in the military service of the state of New York when duly authorized by regulation
issued by the adjutant general” are authorized to carry firearms.21 Unfortunately, such regulations
were not previously promulgated. Consequently, the judge advocates drafted Department of
Military and Naval Affairs (DMNA) Regulation 27-13, Carrying of Firearms and Use of Force,
which the Governor’s Counsel Office approved on 29 September 2001.22
The RUF must also address state law topics such as the right to defend others,23 the duty to retreat,24
the use of deadly force to prevent escapes,25 the requirement or limit on the use of warnings before
the employment of deadly force in self defense,26 the requirement for the use of proportionality,27
18 See CJCSI 3121.01B, supra note 5, Encl. L(U), para. 4.a. It provides that service members may exercise individual
self-defense in response to a hostile act or demonstrated hostile intent, except as limited by a commander as part of unit
self-defense. The SRUF provide that a unit commander may limit the use of individual self-defense by members of
their unit. Whether state National Guard RUF may, like the SRUF, deny the right of individual self-defense in some
instances, is open to question, especially because many states have statutes applicable to all persons within the state,
including National Guard personnel, providing for the right of self-defense. See, e.g., MONT. CODE ANN. § 45-3-102. It
is likely that National Guard commanders could lawfully place restrictions on the use, for self-defense purposes, of
weapons issued by the National Guard; however, if a weapon is issued for the purposes of mission accomplishment, it
may make little tactical sense to deny the use of the same weapon for purposes of individual self-defense.
19 As used herein, “mission analysis” refers to the commander’s vision of the execution of the mission, a determination
of the amount of force necessary for mission accomplishment, and a determination, in light of known factors such as
intelligence on the nature of the threat presented to state forces, of whether National Guard personnel could be the
subject of any type of physical attack in executing the mission.
20
It is important to distinguish between the citizen’s individual right of self-defense from the right of a government
official to use force in self-defense. The rights and duties for these two different legal theories are similar, but contain
critical differences. RUF drafters must decide which legal authority they wish to invoke, and then ensure that the
description of this authority remains consistent. Ambiguities created by confusing the two authorities could lead to
confusion by members. Almost all of the topics listed in this section will allow for different conduct by a member
acting in self-defense under the two theories.
21 N.Y. PENAL LAW § 265-20.
22 NYARNG Transcript, supra note 12, at 51.
23 The right to defend others is frequently the subject of the same state statutes that provide for an individual’s right to
defend him or herself. See, e.g., CONN. GEN. STAT. § 53a-19(a); COLO. REV. STAT. § 18-1-704(2).
24 The laws of several states require the duty to retreat, so, for the airport security mission, those states included the
duty in the RUF. See, e.g., Connecticut airport security mission RUF para. IIIC(b) and CONN. GEN. STAT. § 53a-19(b).
25 For a detailed discussion of the Fourth Amendment aspects of this topic in the context of FBI RUF, see Harris v.
Roderick, 126 F.3d 1189 (9th Cir. 1997).
26 Many, if not most, states included the necessity for a warning (if possible) before resorting to the use of deadly force
in the airport security mission RUF.
27 Some state RUF used for the airport security mission specifically required that action taken in self-defense must be
proportional to the force used in the attack necessitating the defense. It is unclear whether this duty was imposed in the
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and whether the place where the right of self defense is exercised imposes additional legal
implications.28
(3) Special Orders
Many RUF include discussion of issues not directly related to the use of force. These issues are
called “special orders” and cover such matters as: training (including training scenarios), military
bearing and appearance, immunity, standards of conduct and treatment of civilians, safety, handling
news media, discussion of the mission with others, and handling of suspicious persons, vehicles,
and activities. Usually, the state Adjutant General or the task force commander will decide whether
to include them in the RUF or in the OPLAN/OPORD.
b. Role of State Law in Determining RUF for Law Enforcement, Law Enforcement
Support, and Security Missions
There are variations between the states regarding National Guard authority to apply force during a
law enforcement,29 law enforcement support,30or security operation. For example, some states by
statute give the National Guard the full authority of peace officers.31 In other states, the National
Guard has only those peace officer-type powers enjoyed by the population at large.32 Still others
provide that the National Guard has certain specific authorities in limited situations.33 Depending
upon the state statutes, the National Guard’s authority to act as peace officers may apply to
RUF as a result of a state law requirement, or whether it was an inadvertent carryover from the law of war rule of
proportionality that is reflected in the SROE.
28
In some states, the right of self-defense is greater when exercised in the defender’s home or place of work. In those
places there is often no duty to retreat. See, e.g., CONN. GEN. STAT. § 53a-19(b); N. D. CENT. CODE § 12.1-05-07.
29 Because the Posse Comitatus Act, 18 U.S.C. § 1385 (2011) [hereinafter PCA] does not apply to the National Guard
when not in federal status or under federal control, there is no federal law prohibiting the National Guard from
participating in direct law enforcement actions. Whether the National Guard forces of any state may otherwise
participate in such actions therefore depends upon the law of the individual states. Concerning application of the PCA
to the National Guard, see also infra subparagraph C.2.
30 For the purposes of the National Guard, “law enforcement support” usually means assistance provided to civilian law
enforcement agencies at their direction or request - a meaning which may differ for purposes of the PCA regarding
federal military forces.
31 For example, Arkansas law at ARK. CODE ANN. § 12-61-112(a) provides the following:
(a) Whenever such forces or any part thereof shall be ordered out for service of any kind, they shall have all
powers, duties, and immunities of peace officers of the State of Arkansas in addition to all powers, duties, and
immunities now otherwise provided by law.
32 See, e.g., Iowa RUF for the airport security mission “Task Force Freedom Flight - Airport Security Instructions,”
para. 4 and its reliance, for the purposes of arrest of civilians committing crimes in the presence of National Guard
personnel, on Iowa Code § 804.9, granting ordinary citizens the power of arrest; Nebraska Rules of Interaction (ROI)
#02, 2 Oct. 2001, para. 7 (“You must apply the use of force rules that apply to a private citizen under state law”); and
Use of Force and Arrest Powers of New York National Guard Soldiers, para. 5 (“a National Guardsman’s power and
authority under New York state law are the same as any other citizen”). When conducting SAD missions in the wake of
the 11 Sept. 2001 terrorist attacks, the NYARNG had no greater power than the normal citizen regarding arrest
authority. Although a New York State Emergency Act provided a mechanism for the NYARNG to be designated as
peace officers, the provision was not used because the Act also required a lengthy training period. See NYARNG
Transcript, supra note 12, at 52.
33 See, e.g., GA. CODE ANN. § 38-2-6-38-2-6.1.
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operations in a Title 32 status, SAD status, or both.34 Regardless, the National Guard judge
advocate must participate in the effort to tailor the RUF to the particular mission, state law, and the
policies of the state Adjutant General.35
c. Subjects Appropriate for Inclusion in Law Enforcement, Law Enforcement
Support, and Security Mission RUF
(1) Use of Force and Level of Force Generally
If the National Guard mission is law enforcement, law enforcement support, or security, the mission
OPLAN/OPORD or its RUF must specify what type of government weapons, if any, may be used
for mission accomplishment and self defense. How those weapons may be used, what law
enforcement-type actions (such as search and seizure) may be taken, and the level of force that may
be used should also be addressed. If authority is not granted for any law enforcement-type action
(such as search and seizure) under any circumstances for mission accomplishment, the RUF or
mission OPLAN/OPORD should expressly deny the use of force for the specified purpose.
Conversely, if National Guard personnel are allowed to take some law enforcement-type actions as
a last resort, such as the power to detain and question and/or search persons only when civilian law
enforcement personnel are unavailable or where National Guard personnel have been directed to do
so by civilian law enforcement personnel, this should be stated. The RUF must also address the
degree of force authorized for National Guard personnel in the execution of law enforcement-type
actions for mission accomplishment, self defense, or both.
For example, if a law enforcement support or security mission includes guarding buildings or real
property, the RUF must address whether persons entering or leaving the property may be detained
and questioned or searched by National Guard personnel. If detention, questioning and/or search
are authorized, then the RUF must state whether and to what degree force may be used to enforce
the action. Moreover, for missions that include guarding buildings or real property, the RUF must
address whether force up to and including deadly force may be used to defend the property. Some
airport security mission RUF, for instance, provided that deadly force could only be used to defend
specially designated property.36 When this device is used, National Guard judge advocates must
ensure that a statutory or other system exists for the designation of such property.
(2) Definitions
Definitions may be appropriate for inclusion in all RUF but they are particularly necessary in armed
law enforcement, law enforcement support, or security operations. Using law enforcement-type
terms that National Guard personnel may not be familiar with may create confusion and may have
34 For example, Ark. Code Ann. § 12-61-112 applies “Whenever” National Guard forces are ordered to “service of any
kind,” but Ga. Code Ann. § 38-2-6 to 38-2-6.1, when read in toto, provide that the Governor has the power “in case of
invasion, disaster, insurrection, riot, breach of the peace, combination to oppose the enforcement of the law, or
imminent danger thereof” to declare an emergency ordering the National Guard into “the active service of the state” and
granting the National Guard the authority to “quell riots, insurrections, or a gross breach of the peace or to maintain
order.”
35 For the purposes of the airport security mission, some states adopted more restrictive RUF than state law allowed.
36 On the other hand, the NYARNG RUF did not allow the use of deadly force to protect property. Deadly force was
only authorized in self-defense “if there was a threat of death or grievous bodily harm.” See NYARNG Transcript,
supra note 12, at 70.
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unintended consequences. Terms commonly defined include: deadly weapon; firearm; reasonable,
necessary, or minimum force; peace officer; probable cause; reasonable suspicion; reasonable
belief; deadly and non-deadly force; arrest (civilian or military term); apprehension; detention;
property vital to public health or safety (or other similar phrase); forcible felony (when defense is
predicated on commission of a forcible felony); hostile act; hostile intent; proportionality or
proportional force; felony; and misdemeanor.
(3) Arming Orders
If firearms or other weapons with the capability to kill or severely injure another will be issued, then
the RUF should provide for positive control by experienced NCOs or officers. One method of
accomplishing this is to specify how members will carry their weapons, ammunition, and other
ancillary equipment, expressed through arming orders. Arming orders are a state of preparedness to
use force. They should not be confused with the authority to use force once a member is faced with
a threat. Arming orders are typically written in a chart or matrix format, specifying where or how
the weapons will be carried and where ammunition will be kept, including when and where loaded
magazines should be carried and when rounds should be chambered. Use of weapons other than
firearms should also be addressed if those weapons will be issued.37 Below is an example of arming
orders used by the Indiana National Guard for the airport security mission.
Arming
Rifle or
Pistol
Baton
Chamber
Ammo
Bayon
Weapon/
Order
Shotgun
et
Safety
Not
AO-1
Sling
Holster
Belt
Empty
In Pouch
ON
issued
Not
AO-2
Port
Holster
Belt
Empty
In Pouch
ON
issued
Not
AO-3
Sling
Holster
Hand
Empty
In Pouch
ON
issued
Not
AO-4
Port
Holster
Hand
Empty
In Pouch
ON
issued
In
Not
AO-5
Port
Holster
Hand
Empty
ON
Weapon
issued
Locked &
In
Not
AO-6
Port
In Hand
Belt
ON*
Loaded
Weapon
issued
* Leave safety on until ready to fire
37 Other weapons may include use of water, batons, pepper spray, or tasers (electric stun guns). In airport security
mission RUF, some states began their use of force matrix at a much lower level than would usually be the case, such as
with an unarmed member first attempting verbal persuasion, then using “unarmed defensive techniques,” then using
non-deadly physical force to restrain the aggressor, then stating that a weapon would be drawn if the aggressor
continued his or her aggression, then drawing and displaying the weapon, then stating that a round would be chambered,
etc. Commanders using this technique must of course explain that in a true tactical situation, the command does not
expect that each service member must always use each and every incremental increase in the use of force; in some
instances it would be futile and could risk injury to do anything except for, drawing and firing a weapon.
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(4) THREATCON Levels Matched to RUF
Another method of control includes adjusting the readiness posture in relation to the threat
condition,38 or THREATCON.39 One way to make RUF dependent upon THREATCON level is
through use of arming orders in which the order number (condition of readiness of the firearm or
other weapon) relates to the THREATCON in effect.40
(5) Special Orders
Other potential subjects appropriate for inclusion in National Guard RUF for law enforcement, law
enforcement support, or security missions concerning use of force include: the relationship of
National Guard personnel to civilian law enforcement personnel,41 acting at the direction of civilian
law enforcement,42 defense of others, pursuit of suspects, retention of evidence,43 use of restraints,
reports of firearm discharge,44 or other use of deadly force, accountability of weapons and
ammunition, and a prohibition against use of non-issued weapons and ammunition.
38 The THREATCON levels are ALPHA, BRAVO, CHARLEY, and DELTA. U.S. DEP’TS OF ARMY AND AIR FORCE,
NATIONAL GUARD BUREAU PAM 190-1/AIR FORCE NATIONAL GUARD PAM 208-2, App. A (15 Jul. 1986) [hereinafter
NGBP 190-1/ANGP 208-2]. Note that this is different from Force Protection Conditions (FPCON) used by DoD and
the Army. Army FPCONs are progressive levels of security measures implemented in response to threats facing DoD
and Army personnel, information and critical resources. See U.S. DEP’T OF DEFENSE, DIR. 2000.12, DOD
ANTITERRORRISM PROGRAM (18 Aug. 2003).
39 Texas Rules for the Use of Force for the airport security mission specifically relied on THREATCON levels. Other
states providing for “levels” of threat or RUF for the purposes of the airport security mission were Arkansas and North
Carolina.
40 The THREATCON levels provided in NGBP 190-1/ANGP 208-2, supra note 38, provide for increased security
measures depending on the particular THREATCON level then in effect.
41
In a mission supporting civil authorities, National Guard personnel are typically instructed to rely upon civilian law
enforcement personnel to detain and question persons, conduct searches and seizures, and to apprehend offenders, and
to take any of these steps themselves only when requested or directed by those civilian law enforcement personnel or
only in the most exigent of other circumstances. See NGR 500-1, supra note 8; and, for the purposes of the airport
security mission, 29 Sept. 2001 ARNG Airport Security Instructions, para. 2-1, 3-6b [hereinafter ARNG Airport
Security Instructions] (limiting the National Guard to a law enforcement support role during the airport security
mission).
42 Actions taken at the direction of federal personnel will help support the argument that National Guard members are
shielded by federal Supremacy Clause immunity from state criminal charges. See text infra, subparagraph C.2.; also
see, West Virginia v. Laing, 133 F. 887 (4th Cir. 1904) and James River Apartments, Inc. v. Federal Hous. Admin., 136
F. Supp. 24 (D. Md. 1955), in which persons who otherwise had no federal or other governmental status were given
federal Supremacy Clause immunity by judicial opinion because they acted at the behest of federal officials. Note also
that National Guard members taking law enforcement-type action at the express request or direction of law enforcement
personnel may be provided with state immunity from civil or criminal prosecution. See, e.g., UTAH CODE ANN. § 76-2
404; CONN. GEN. STAT. § 53a-22(d)-(e).
43 DA Form 3316R (Detainee Turnover Record) may be used to inventory items taken from detainees.
44 ARNG Airport Security Instruction, supra note 41, para. 3-17a(3), required that the discharge of firearms, among
other matters, by National Guard personnel serving in that mission be reported to the National Guard Bureau as a
serious incident.
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C. Specific RUF Issues
1. RUF in Interstate (Cross Border) Operations
National Guard forces may cross state borders both for training in a Title 32 status for their federal
mission and for assisting neighboring states in SAD status. Naturally, for many of these operations,
the units carry their organic weapons. In some states, however, state code or constitutions may
complicate this practice. For example, § 33 of the Montana Constitution provides that no “armed
persons . . . shall be brought into this state for the preservation of the peace . . . except upon
application of the legislature . . .” and § 431.011 of Texas Statutes provides that a “military force
from another state . . . may not enter the state without the permission of the governor.” Statutes or
constitutional provisions like these can impede the timely flow of National Guard forces from one
state to another.
Federal Supremacy Clause immunity45 may be a viable defense should an violation of state law
arise in the case of a National Guard force crossing a state border for federal training purposes (this
concept is discussed more below). If Federal Supremacy Clause immunity is successful in defense
of a violation of state law, then the use of one state’s RUF would not appear to be an issue in cross-
border operations (unless the RUF themselves are unconstitutional),46 unless operations undertaken
in an SAD status are involved.47
The best approach is to work in advance of the need to cross a state border to get proper approvals
to enter. Cross-border operations by state National Guard units in an SAD status for the purposes of
disaster relief or other state emergencies within a second state have typically been accomplished
pursuant to the several disaster-related or “National Guard-only” interstate compacts.48 The latest
of these compacts available for use during disaster relief or other state emergencies by the National
Guard, and the one most recently approved by Congress, is the Emergency Management Assistance
Compact (EMAC).49 All states now have codified the EMAC, most without change. Since its
45 See text infra subparagraph C.2.
46 For an example of unconstitutional RUF, see Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997).
47
It is even more likely that an armed National Guard force would be seen as a threat if entering the state in a SAD
status to control civil unrest, rather than under a pure training mission pursuant to 32 U.S.C. § 502(f). Also note that
some civil support missions undertaken for state purposes may be counted as training; however, under NGR 350-1,
supra note 13, para. 2-1a(9), and federal Supremacy Clause, immunity may be available to protect that mission or part
of that mission.
48 AMERICAN LAW SOURCE ON-LINE, United States - Interstate Compacts, http://www.lawsource.com/also/usa.cgi?usi
(last visited Sept 18, 2013) provides a listing of interstate compacts, including those of most direct concern to the
National Guard: the Emergency Management Assistance Compact (EMAC); the Interstate Civil Defense and Disaster
Compact; the Interstate Emergency Management Compact; the Interstate Mutual Aid Compact; and the National Guard
Mutual Assistance Compact. This on-line list includes neither the Massachusetts Compact with New York for Military
Aid in an Emergency nor the New England States Emergency Military Aid Compact.
49 The Emergency Management Assistance Compact (EMAC) was approved by Congress in October of 1996, see Pub.
L. No. 104-321, 110 Stat. 3877 (1996) [hereinafter EMAC]. At the time of the 9/11 terrorist attacks, New York was not
a member of the EMAC. New York did, however, have a 1951 Mutual Aid Compact with New Jersey, Vermont, and
Massachusetts. A major issue that arose was what state would have command and control over service members from
other states. NYARNG Transcript, supra note 12, at 35-6.
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approval by Congress in 1996, many states have used EMAC for various state emergencies. The
possibility of its use in situations where the use of force may be necessary exists.50
EMAC, like all congressionally-approved interstate compacts, is federal law.51 As such, it is
applied in the same manner as other federal legislation.52 This position in the legal hierarchy
provides a basis to overcome state constitutional provisions that would otherwise serve to prohibit
the entry of National Guard members from other states.53 Further, peace officer powers granted by
the requesting state’s statutes only to the National Guard forces of that state54 may be granted to the
National Guard forces of the sending state by the use of one or more EMAC supplemental
agreements.55
Finally, National Guard judge advocates advising the State Adjutant General or Task Force
commander for the sending and/or receiving state in cross-border law enforcement operations in a
SAD or Title 32 status under EMAC should take note of Art. XIII (“Other Provisions”) of that
compact.56 This provision is untested in the courts57 but its apparent intent may be to apply the
Posse Comitatus Act to National Guard operations, by denying the use of EMAC to the National
Guard58 in situations where the PCA would prevent the active components of the Army and Air
50 The Emergency Management Assistance Compact Guidebook & Standard Operating Procedures manual of the
National Emergency Management Association notes that EMAC has been used for several large-scale emergencies,
such as Hurricane Andrew, and notes that it was used in response to 9/11 terrorist attacks on the World Trade Center in
New York. MUNRO, DOUGLAS P., THE EMERGENCY MANAGEMENT ASSISTANCE COMPACT GUIDEBOOK & STANDARD
OPERATING PROCEDURES (Diane Pub. Co., 1997) [hereinafter EMAC SOP manual].
51 See, e.g., Texas v. New Mexico, 462 U.S. 554 (1983).
52 See, e.g., Skamania County v. Woodall, 16 P.3d 701 (Wash. 2001).
53 The EMAC provides that a request by one party state for mutual aid from a second state is mandatory in that the
request must be honored, subject only to the second state’s right to retain within that state those resources as are
necessary for self protection. EMAC, supra note 49, art. IV, para.1.
54 See ARK. CODE ANN. § 12-61-112(a).
55 The EMAC provides that the power of arrest is granted to the emergency forces of the sending state if that power is
“specifically agreed to” by the receiving state. EMAC, supra note 49, art. IV, para. 2. If the statutes of the receiving
state grant only the National Guard forces of that state the authority of a peace officer, that limitation might be
overcome by providing for the expanded authority of those forces from the sending state into one or more
supplementary agreements pursuant to EMAC Article VII. Including this authority in a supplemental agreement could
overcome the limitations to a state’s own National Guard units because an agreement implementing an interstate
compact that has been approved by Congress has been held also to have the force and effect of federal law. See Tahoe
Reg’l Planning Agency v. McKay, 769 F.2d 534, 536 (9th Cir. 1985). A related issue is whether the executive branch
emergency forces of two states whose legislative branches have granted no peace officer authority to either of their
respective National Guard forces can nevertheless give themselves those powers and their supporting RUF by the
inclusion of those powers in an EMAC Article VII supplementary agreement.
56 See EMAC, supra note 49, art. XIII (providing that “[n]othing in this compact shall authorize or permit the use of
military force by the National Guard of a state at any place outside that state if any emergency for which the President is
authorized by law to call into federal service the militia or for any purpose for which the use of the Army or Air Force
would in the absence of express statutory authorization be prohibited under Section 1385 of title 18, United States
Code”).
57 Telephone Interview with Ms. Amy Hughes, Policy Analyst for the National Emergency Management Association
(NEMA), Lexington, KY (June 2003), which administers the NEMA website and provides support for the
administration of EMAC.
58
In other words, not prohibiting the National Guard from crossing a state border in a particular case but only
prohibiting the use of EMAC as the authority to do so, so that if another interstate compact exists upon which to rely, or
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Force from providing direct law enforcement services. Under most situations, this proscription will
have little impact on National Guard cross border operations and the RUF because National Guard
activities are usually limited to providing law enforcement support to civil authorities, rather than
providing direct law enforcement service.59 National Guard judge advocates should be mindful of
this limitation, however, so that if EMAC is relied upon for any aspect of a cross-border operation
to which Art. XIII might apply, National Guard authorities will be advised appropriately.
2. State Criminal Liability of National Guard Members for Use of Force
Immunity from state criminal charges for wrongful use of force by National Guard personnel was a
topic addressed by some National Guard RUF for the airport security mission.60 The subject is
addressed here in the context of National Guard personnel on active duty for the purpose of federal
domestic law enforcement support or federal security mission,61 and both Title 32 status62 and SAD
status for the purposes of a state emergency. As discussed at the beginning of this chapter, state
criminal law and therefore state RUF apply to both missions in Title 32 and SAD statuses. The
focus of criminal liability under state law while in federal active duty status or in a state status is on
the doctrine of Federal Supremacy Clause immunity.63
a. Active Duty Federal Mission
Although the early history of the doctrine of Federal Supremacy Clause immunity64 began
somewhat before the case was decided,65 the opinion of the Supreme Court in In Re Neagle, 135
U.S. 1 (1890), is regarded as the seminal case establishing the theory that the employees of the
United States cannot be limited, by prosecution under state criminal laws, by the states in their good
faith, rightful, and proper execution of their federal duties.
Mr. David Neagle, who served as a Deputy U.S. Marshal and bodyguard to Mr. Justice Stephen
Field, then a sitting member of the U.S. Supreme Court, was charged with murder by the state of
California after killing another individual, Mr. David Terry, whom Neagle thought was reaching for
a weapon in an attempt to kill Mr. Justice Field. Neagle successfully argued that in killing Mr.
Terry, he (Neagle) did no more than was required of him by his federal position as Deputy Marshal
in the event that use of such a compact is considered unnecessary, the National Guard force may still cross the border in
an SAD status for the purposes of an armed law enforcement mission.
59 See NGR 500-1, supra note 8, para. 4-2. The National Guard instruction governing the airport security mission
contemplated cross border operations but provided that National Guard forces were not to participate in law
enforcement operations unless in exigent circumstances. ARNG Airport Security Instructions, supra note 41, paras. 2
1e, 2-8.
60 See, e.g., Airport security mission RUF for the states of Nevada, New Jersey, and New York.
61 Such as during the 2002-2003 Air Force security mission, in which approximately 8,100 Army National Guard
Soldiers were mobilized under 10 U.S.C. § 12302 for the purposes of providing security at U.S.A.F. and Air National
Guard installations.
62 This was the case in the airport security mission.
63 Since National Guard Soldiers performing security duties may be subject to both criminal and civil liability based on
both state and federal law for use of force incidents, the concepts of federal Supremacy Clause immunity and
governmental qualified immunity under both state and federal law will be critical. For simplicity, this discussion is
limited to federal Supremacy Clause immunity.
64 See U.S. CONST. art. VI, cl. 2 (Supremacy Clause).
65 A U.S. Supreme Court case predating Neagle is Tennessee v. Davis, 100 U.S. 257 (1880).
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and bodyguard and that California should not be allowed to proceed in its prosecution lest that state
by implication be allowed to control the proper execution of his federal duties.
Since that case, the defense that proved so valuable to Mr. Neagle has been applied successfully
numerous times in judicial opinions on behalf of federal employees and other persons carrying out
federal missions, including federal military personnel carrying out federal military missions. Those
federal active duty military defendants have successfully employed the “Neagle defense” of Federal
Supremacy Clause immunity against state criminal charges for improper operations of a motor
vehicle,66 defamation,67 assault,68 and murder in the course of guarding prisoners of the U.S.
Army.69 There is no limitation expressed in any of those opinions as to the type or character of the
state offense to which the doctrine might be applied on a service member’s behalf.70
In only one reported military-related case has anything like federal military RUF been clearly the
subject of a Federal Supremacy Clause defense to state criminal charges. In United States v.
Lipsett, 156 F. 65 (W.D. Mich. 1907), a case involving the shooting of an innocent bystander by a
military guard, the Court examined the manual of guard duty used for training guards assigned to
military prisoners. The Court found that per the manual, the guard’s duty in response to an
attempted escape was to first call for the escapee to halt, and if the escapee did not halt, to then fire
upon the prisoner.71 In this case, based largely on the court’s understanding of the guard’s federal
duties, the guard was acquitted of manslaughter.
The only reported case found involving federal RUF is a non-military civil case involving the RUF
used by the FBI during the standoff between alleged weapons trafficker Randy Weaver and the FBI
at Ruby Ridge, Idaho, in 1992. In Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997), the Court held
the “shoot any armed male” FBI RUF to have been overly broad and to have deprived the plaintiff
of his constitutional rights under the Fourth Amendment of the Constitution. Thus, not only may a
federal officer, in the performance of his duties under a set of rules unlawfully deny the victim his
constitutional rights, but the RUF at issue may be considered unconsititutional on their face as well.
b. Title 32 or SAD Status and Mission
The holding of Perpich v. Dep’t of Defense72 (noted above) stated that National Guard personnel in
a federal training or “other duty” status under 32 U.S.C. 502 are a state military force, and
consequently, their RUF are derived from state criminal and civil law. Under this analysis, the best
66 See Montana v. Christopher, 345 F. Supp. 60 (D. Mont. 1972) (operating a vehicle without lights); Commonwealth v.
Thomas, 612 F. Supp. 14 (W.D. Pa. 1984) (violation of state weight limits).
67 Howard v. Sikula, 627 F. Supp. 497 (S.D. Ohio 1986).
68 See Lima v. Lawler, 63 F. Supp. 446 (E.D. Va. 1945); Commonwealth v. Johnson, 297 F.Supp. 877 (W.D. Pa. 1969).
69 See In re Fair, 100 F. 149 (C.C.D. Neb. 1900) and United States v. Lipsett, 156 F. 65 (W.D. Mich. 907).
70 The only limitation is that the act in question be taken in good faith and that the act be truly necessary for the
purposes of the federal mission. Thus, the defense has not been judicially applied in defense to state charges of
unintentional death where the particular maneuver of a government vehicle was not required by the federal military
mission. See State v. Ivory, 906 F.2d 999 (4th Cir. 1990).
71 United States v. Lipsett, 156 F. 65 (W.D. Mich. 1907).
72 Perpich v. Department of Defense, 496 U.S. 334 (1990).
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defenses to the possibility of a state criminal charge73 resulting from good faith compliance with
state RUF include:
• A state statute providing criminal immunity for National Guard personnel.74
• An agreement with the State Attorney General (possibly at the time the state Attorney General
gives any approval of the RUF75) that National Guard personnel will not be prosecuted
criminally for good faith compliance with the National Guard RUF.76
• Extension of the doctrine of Federal Supremacy Clause immunity to National Guard personnel
acting under federal control.
The application of Federal Supremacy Clause immunity to a state military force may rest upon the
accumulation of indicia of a federal mission such as: federally-funded orders, use of federal
equipment, governance by federal regulations, execution of the mission on a federally-owned or
governed facility, application of the state RUF through execution of supplemental agreements under
EMAC,77 execution of the mission details at the direction of federal authorities such as Department
of Homeland Security personnel, contracts or memoranda of agreement (MOAs) with federal
officials, or orders to Title 32 duty at the request of federal government officials. Caselaw clearly
indicates that Federal Supremacy Clause immunity should be applied to cases involving a federal
mission whether or not the subject of that protection is a federal employee.78
3. RUF in Mixed National Guard and Active Component Operations
Given the doctrine of Federal Supremacy Clause immunity, federal active duty Soldiers have less
reason to consider themselves bound by the exact restrictions of a state’s criminal law and more
reason to follow the requirements of the SRUF than do National Guard personnel in Title 32 or
SAD status. For this reason, in domestic law enforcement support or security operations involving
both active component and National Guard members, judge advocates must pay close attention to
73 Of course, because the subject is the possibility of state criminal charges, there is no value to tort law “hold
harmless” agreements or the possible application of both the Federal Tort Claims Act and state tort claims laws.
74 New York, for example, has a statute that grants civil and criminal immunity to members of the New York National
Guard ordered into active service of the state for “any act or acts done by them in the performance of their duty.” N.Y.
PENAL LAW § 235. See also, NEV. REV. STAT. 412.154(1). In the case of the statutory immunity predicate for National
Guard missions for which firearms are issued, the most basic statute providing for use of force may be a statute
providing for immunity for the carrying of firearms. See, e.g., N.J. REV. STAT. § 2C: 39-6(1).
75 The ARNG airport security instruction required the National Guard RUF used for that mission be reviewed by the
state Attorney General. ARNG Airport Security Instructions, supra note 41, para. 3-6a.
76 This type of agreement would have to be predicated upon the approval of the National Guard RUF by the state
Attorney General. It also must be based upon the Attorney General’s statutory or common law powers of supervision
over county or district prosecutors; the more independent the local prosecutor, the less value of any agreement with the
state Attorney General. Where local prosecutors are mostly independent, assurance can only come from the
agreement(s) of the local prosecutor(s).
77 Thus making the supplemental agreement and the RUF contained therein a matter of federal law. See, e.g., Tahoe
Regional Planning Agency v. McKay, 769 F.2d 534, 536 (9th Cir. 1985).
78 For cases in which defendants, who had no federal employee status, were subject to state criminal charges
successfully argued the application of federal Supremacy Clause immunity based upon a federal mission, see, e.g., West
Virginia v. Lang, 133 F. 887 (4th Cir. 1904) (member of U.S. Marshal’s posse made of ordinary citizens charged with
murder); Connecticut v. Marra, 528 F. Supp. 381 (D. Conn. 1981) (informer cooperating with FBI charged with
attempting to bribe a city policeman).
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their RUF (in particular to ensure compatibility with federal SRUF) if each group has similar duties.
The RUF applicable to National Guard personnel must respect state limitations on law enforcement-
type activities by the National Guard (such as searches and seizures) and the use of force to support
those activities.79
D. Role of the National Guard Judge Advocate
1.
Drafting RUF
While RUF are an S-3/G-3 and commander responsibility, judge advocates should assist in drafting
them (and may be tasked directly to draft them nonetheless). In addition, judge advocates should be
directly involved in the production of RUF-related documents, such as information papers,
memoranda of law, and memoranda of agreement with supported civil authorities.80 Some MOAs
may contain hold harmless provisions which the judge advocates should review, negotiate, and
advise upon. If the RUF used by the National Guard in a law enforcement, law enforcement
support, or security mission refers the reader to, or adopts the RUF currently used by a state law
enforcement agency, judge advocates must review the documents relied upon for the RUF. The
documents should be carefully reviewed to ensure compatibility with member skills, training,
capabilities, weapons, and mission. It may be necessary to add provisions specifically applicable to
the National Guard.
2.
Negotiating RUF with State Agencies
Judge advocates will want to determine whether the RUF, MOA, OPLAN/OPORD, training
documents, and other matters relating to the RUF are comprehensive, legally accurate, and well
understood by the drafters and commanders. At times, other state officers or agencies, such as the
Attorney General, district attorneys, or state law enforcement agencies may be involved in drafting
or approving the RUF. In such cases, judge advocates may find it necessary to educate and
negotiate issues that meld legal requirements with operational imperatives. For example, in New
York after September 11th, New York Army National Guard judge advocates assisted in drafting
the Governor’s airport security plan, including RUF. The plan and RUF were staffed through the
Adjutant General and the Governor’s Counsel Office, and approved by the Governor on 29
September 2001.81
79 This does not necessarily imply that state RUF will always be more restrictive than the SRUF. For example, in civil
disturbance support operations in which NGR 500-1 applies, when federal equipment is used the RUF provides that
deadly force may be used for the prevention of the destruction of “property vital to public health and safety”
(undefined). See NGR 500-1, supra note 8, paras. 4-6 and 4-6b(3)(c). Some states followed this authorization for the
purposes of the airport security operation, even though that operation was not a civil disturbance operation, but was an
airline security operation. In contrast, the analogous provision of the draft SRUF, CJCSI 3121.01B supra note 5, Encl.
L para. 5.c.(2), authorizes the use of deadly force to protect president-designated assets vital to national security, which
by definition is property the theft or sabotage of which must create an “imminent threat of death or serious bodily
harm.”
80 The National Guard Bureau Instruction governing the airport security mission required that states execute
memoranda of understanding or memoranda of agreement (MOU/MOA) with supported airports for missions longer
than thirty days. See ARNG Airport Security Instructions, supra note 41, para. 2-8a.
81 NYARNG Transcript, supra note 12, at 184.
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3. Providing Legal Advice on Liability
Counseling decision makers on the legal requirements necessary to protect members from civil and
criminal liability can be a complicated task. The primary focus of the judge advocate’s counseling
will be the state Adjutant General; the Deputy Chief of Staff for Operations; the Plans, Operations,
and Training Officer; and the Task Force or other commanders.
4. Training
Judge advocates should seek opportunities to assist trainers responsible for ensuring that individual
members learn and apply the correct standards for force. In this role, they can write or assist in
writing information papers, training vignettes, and legal memoranda. Also, the use of a training
certification process may be useful.
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CHAPTER 12
FUNDING DOMESTIC SUPPORT OPERATIONS
KEY REFERENCES:
•
18 U.S.C. § 1385 - Posse Comitatus Act.
•
10 U.S.C. §§ 371-382 - Military Support For Civilian Law Enforcement Agencies.
•
10 U.S.C. §§ 331-335 - Insurrection Act.
•
10 U.S.C. § 2012 - Support and Services for Eligible Organizations and Activities Outside
Department of Defense (Innovative Readiness Training Program).
•
10 U.S.C. § 2551 - Equipment and Barracks: National Veterans’ Organizations.
•
10 U.S.C. § 2552 - Equipment for Instruction and Practice: American Red Cross.
•
10 U.S.C. § 2554 - Equipment and Other Services: Boy Scout Jamborees.
•
10 U.S.C. § 2555 - Transportation Services: International Girl Scout Events.
•
10 U.S.C. § 2556 - Shelter for Homeless; Incidental Service.
•
10 U.S.C. § 2558 - National Military Associations; Assistance at National Conventions.
•
10 U.S.C. § 2562 - Limitation on Use of Excess Construction or Fire Equipment from
Department of Defense Stocks in Foreign Assistance or Military Sales Programs.
•
10 U.S.C. § 2564 - Provision of Support for Certain Sporting Events.
•
10 U.S.C. § 2576 - Surplus Military Equipment: Sale to State and Local Law Enforcement,
Firefighting, Homeland Security, and Emergency Management Agencies.
•
10 U.S.C. § 2667 - Leases: Non-Excess Property of Military Departments and Defense
Agencies.
•
31 U.S.C. § 1535 - Economy Act.
•
31 U.S.C. § 3302 - Miscellaneous Receipts.
•
32 U.S.C. § 112 - Drug Interdiction and Counter-Drug Activities.
•
42 U.S.C. § 5121, et seq., as amended - Stafford Act.
•
50 U.S.C. § 2311 - Response to Threats of Terrorist Use of Weapons of Mass Destruction
•
National Defense Authorization Act for Fiscal Year 1991, Pub. L. No. 101-510, § 1004 (as
amended, Additional Support for Counter-Drug Activities).
•
Department of Defense Appropriations Act, 1994, Pub. L. No. 103-139, § 8131 (Emergency
Response Fund, Defense).
•
Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, § 5802 (Support to
International Sporting Competitions - Defense).
•
National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, § 1031, (as
amended, Authority to Provide Additional Support for Counter-Drug Activities of Mexico).
•
National Defense Authorization Act for Fiscal Year 1998, Pub. L. No. 105-85, § 1033
(Authority to provide Additional Support for Counter-Drug Activities of Peru and Colombia).
•
National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, § 1021
(Extension and Restatement of Authority to Provide Department of Defense Support for
Counter-Drug Activities of other Governmental Agencies).
•
National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, § 302, Working
Capital Funds.
•
National Defense Authorization Act for Fiscal Year 2003, Pub. L. No. 107-248, Title II
Operation and Maintenance.
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•
National Defense Authorization Act for Fiscal Year, 2009, Pub. L. No 110- 417, Subtitle C,
Counter Drug Activities.
•
Department of Defense Appropriations Act, 2010, Pub. L. No. 111-118.
•
National Defense Authorization Act for Fiscal Year 2011, Pub. L. No 111-383.
•
DoDD 1100.20 - Support and Services for Eligible Organizations and Activities Outside the
Department of Defense, April 12, 2004.
•
DoDI 3025.20 - Defense Support of Special Events, April 6, 2012.
•
DoDD 3025.18 - Defense Support of Civil Authorities, September 21, 2012.
•
DoDI 3025.21 - Defense Support of Civilian Law Enforcement Agencies, February 27, 2013.
•
DoDD 5200.31E - DoD Military Working Dog (MWD) Program, August 10, 2011.
•
DoD Financial Management Regulation (FMR) 7000.14-R, vol. 12, ch. 6 - Defense Emergency
Response Fund.
•
NGR 500-1/ ANGI 10-8101 - National Guard Domestic Operations, June 13, 2008.
•
NGR 500-2/ ANGI 10-801 - National Guard Counterdrug Support, August 29, 2008.
•
CJCSI 3710.01B, DoD Counterdrug Support, January 26, 2007.
•
AR 75-14/OPNAVINST 8027.1G/MCO 8027.1D/AFR 136-8 - Interservice Responsibilities for
Explosive Ordinance Disposal, February 14, 1992.
•
AR 75-15 - Responsibilities and Procedures for Explosive Ordinance Disposal, February 22,
2005.
•
AR 190-12, Military Working Dogs, March 11, 2013.
•
AR 700-131, Loan and Lease of Army Material, August 23, 2004.
•
AR 725-1, Special Authorization and Procedures for Issues, Sales, and Loans, October 17, 2003.
•
SECNAVINST 5820.7C - Cooperation With Civilian Law Enforcement Officials, January 26,
2006.
•
OPNAVINST 3440.16D - Navy Defense Support of Civil Authorities Program.
•
AFI 10-801 - Defense Support of Civil Authorities (DSCA), September 19, 2012.
•
AFI 31-202 - Military Working Dog Program, May 16, 2009.
A.
Introduction: Basic Fiscal Law Framework
The principles of federal appropriations law permeate all federal activity. Fiscal issues arise
frequently during domestic operations, and the failure to understand fiscal nuances may lead to the
improper expenditure of funds and administrative and/or criminal sanctions against those
responsible for funding violations. There are several sources that define fund obligation and
expenditure authority: (1) Title 10, U.S. Code; (2) Title 31, U.S. Code; (3) Department of Defense
(DoD) appropriation acts; (4) DoD authorization acts; (5) agency regulations; (6) Department of
Justice Office of Legal Counsel opinions; (7) Comptroller General decisions; and (8) other
executive agencies’ authorities.
Under the Constitution, Congress raises revenue and appropriates funds for federal agency
operations and programs.1 Courts interpret this constitutional authority to mean that Executive
Branch officials, e.g., commanders and staff members, must find affirmative authority for the
1 See U.S. CONST. art. I, § 7.
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obligation and expenditure of appropriated funds.2 Likewise, in many cases, Congress has
specifically limited the ability of the Executive Branch to obligate and expend funds, in annual
authorization or appropriations acts or in permanent legislation.
Because DoD functions primarily in a support role in domestic operations, most military assistance
to civil authorities is provided on a reimbursable basis. In the case of some authorized activities
such as counter-drug support, Congress annually appropriates money for DoD to provide support.
For other authorized activities, Congress has established special “no year” accounts (such as the
Defense Emergency Response Fund (DERF) and the Support for International Sporting
Competitions (SISC) account) into which DoD can transfer part of its annual appropriation of
Operation and Maintenance (O&M) funds. Once O&M funds are transferred into such an account,
the funds are available for the same purposes and for the same time period as the appropriation to
which transferred. In providing some types of support such as Military Assistance to Safety and
Traffic (MAST), DoD has the authority to act directly and expend O&M funds. As a result of these
various types of situations, it is important to understand that the purpose, time, and amount rules
apply in domestic support operations.
B. Basic Fiscal Controls
Congress imposes fiscal controls through three basic mechanisms, each implemented by one or
more statutes. The controls are as follows: (1) obligations and expenditures must be for a proper
purpose; (2) obligations must occur within the time limits applicable to the appropriation (e.g.,
O&M funds are available for obligation for one fiscal year); and (3) obligations must be within the
amounts authorized by Congress.
1. Purpose
Although each fiscal control is important, the “purpose” control is most likely to become an issue
during military operations. The Purpose Statute provides that “[a]ppropriations shall be applied
only to the objects for which the appropriations were made except as otherwise provided by law.”3
Thus, expenditures must be authorized by law (permanent legislation or annual appropriations act)
or be “reasonably related” to the purpose of an appropriation. Judge advocates should ensure,
therefore, that an expenditure fits an appropriation (or permanent statutory provision), or is for a
purpose that is necessary and incident to the general purpose of an appropriation; the expenditure is
not prohibited by law; and the expenditure is not provided for otherwise, i.e., it does not fall within
the scope of some other appropriation.
A corollary to the “purpose” control is the prohibition against augmentation.4 Appropriated funds
designated for a general purpose may not be used for another purpose for which Congress has
2 See, e.g., U.S. v. MacCollom, 426 U.S. 317, 321 (1976) (“The established rule is that the expenditure of public funds
is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.”).
An obligation arises when the government incurs a legal liability to pay for its requirements, e.g., supplies, services, or
construction. For example, a contract award normally triggers a fiscal obligation. Commands also incur obligations
when they obtain goods and services from other U.S. agencies or a host nation. An expenditure is an outlay of funds to
satisfy a legal obligation. Both obligations and expenditures are critical fiscal events. See 31 U.S.C. § 1501 (2013).
3 See 31 U.S.C. § 1301(a) (2013).
4 See Nonreimbursable Transfer of Admin. Law Judges, B-221585, 65 Comp. Gen. 635 (1986); cf. 31 U.S.C. § 1532
(2013) (prohibiting transfers from one appropriation to another except as authorized by law).
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appropriated other funds.5 If two funds are equally available for a given purpose, an agency may
elect to use either, but once the election is made, the agency must continue to charge the same
fund.6 This concept is known legally as the “election doctrine,” and the election is binding even
after the chosen appropriation is exhausted.7
If an agency obligates funds outside the normal appropriation process, then the agency is
augmenting the funds that Congress has appropriated. In addition, retaining those funds violates the
Miscellaneous Receipts Statute.8 When these retained funds are expended, this also violates the
constitutional requirement for an appropriation.9
There are, however, statutory exceptions to the Miscellaneous Receipts Statute. For example intra
and intergovernmental acquisition authorities allow agencies to retain and use funds from sources
other than those appropriated by Congress.10 The Economy Act authorizes a federal agency to
order supplies or services from another federal agency. For these transactions, the requesting
agency must reimburse the performing agency fully for the direct and indirect costs of providing the
goods and services.11 Judge advocates may wish to consult agency regulations for order approval
requirements.12
Congress also has authorized certain expenditures for military support to civil law enforcement
agencies (CLEAs) in counter-drug operations. Support to CLEAs is reimbursable unless it occurs
during normal training and results in DoD receiving a benefit substantially equivalent to that which
otherwise would be obtained from routine training or operations.13 Another statutory provision
authorizes operations or training to be conducted for the sole purpose of providing CLEAs with
specific categories of support.14 In 10 U.S.C. § 124, Congress assigned DoD the operational
mission of detecting and monitoring international drug traffic (a traditional CLEA function). By
authorizing DoD support to CLEAs at essentially no cost, Congress has authorized augmentation of
CLEA appropriations.
5 Secretary of the Navy, 20 Comp. Gen. 272 (1940).
6 See Funding for Army Repair Projects, Comp. Gen. B-272191, Nov. 4, 1997, 97-2 CPD P141.
7 Honorable Clarence Cannon, B-139510, May 13, 1959, available at http://www.gao.gov/products/403911 (Rivers and
Harbors Appropriation exhausted; Shipbuilding and Conversion, Navy, unavailable for used to dredge channel to
shipyard).
8 See 31 U.S.C. § 3302(b) (2013); Interest Earned on Unauthorized Loans of Fed. Grant Funds, B-246502, 71 Comp.
Gen. 387 (1992).
9 See Use of Appropriated Funds by Air Force to Provide Support for Child Care Centers for Children of Civilian
Employees, B-222989, 67 Comp. Gen. 443 (1988); Bureau of Alcohol, Tobacco, and Firearms--Augmentation of
Appropriations--Replacement of Autos by Negligent Third Parties, B-226004, 67 Comp. Gen. 510 (1988).
10 See, e.g., Economy Act, 31 U.S.C. § 1535 (2013).
11 See Washington Nat’l Airport; Fed. Aviation Admin., B-136318, 57 Comp. Gen. 674 (1978) (depreciation and
interest); Obligation of Funds Under Mil. Interdep’tal Purchase Requests, B-196404, 59 Comp. Gen. 563 (1980); see
also DoD 7000.14-R, vol. 11A, ch. 1, para. 010201.J (waiving overhead for transactions within DoD).
12 See, e.g., GEN. SERVS. ADMIN. ET AL., FEDERAL ACQUISITION REG. Subpart 17.5 (April 2013) [hereinafter FAR];
Defense Federal Acquisition Regulation Subpart 217.5; Army Federal Acquisition Regulation Supplement Subpart
17.5.
13 See 10 U.S.C. § 377 (2013).
14 See § 1004 of the 1991 National Defense Authorization Act (FY91 NDAA), as amended (10 U.S.C. § 374, note).
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2. Time
The “time” control has two major elements: Appropriations have a definite life span; and
appropriations normally must be used for the needs that arise during their period of availability.
Most appropriations are available for a finite period. For example, Operation and Maintenance
(O&M) funds, the appropriation most prevalent in an operational setting, are available for one year;
procurement appropriations are available for three years; and construction funds have a five-year
period of availability. If funds are not obligated during their period of availability, they expire and
are unavailable for new obligations (e.g., new contracts or changes outside the scope of an existing
contract). Expired funds may be used, however, to adjust existing obligations (e.g., to pay for a
price increase following an in-scope change to an existing contract). The “bona fide needs rule”
provides that funds are available only to satisfy requirements that arise during their period of
availability, and will affect which fiscal year appropriation you will use to acquire supplies and
services.15 This is commonly referred to as using current year funds for current needs.
The bona fide need for supplies normally exists when the government actually will be able to use
the items. Thus, a command would use a currently available appropriation for computers needed
and purchased in the current fiscal year. Conversely, commands may not use current year funds for
computers that are not needed until the next fiscal year. Year-end spending for computers that will
be delivered within a reasonable time after the new fiscal year begins is proper, however, as long as
a current need is documented. Note that there are “lead-time” and “stock-level” exceptions to the
general rule governing purchases of supplies.16 In any event, “stockpiling” items is prohibited.17
Normally, severable services are bona fide needs of the period in which they are performed.
Grounds maintenance, custodial services, and vehicle/equipment maintenance are examples of
recurring services considered severable. Use current year funds for recurring services performed in
the current fiscal year. As an exception however, 10 U.S.C. § 2410a permits funding a contract (or
other agreement) for severable services using an appropriation current when the contract is
executed, even if some services will be performed in the subsequent fiscal year. Conversely,
nonseverable services are bona fide needs of the year in which a contract (or other agreement) is
executed. Nonseverable services are those that contemplate a single undertaking, e.g., studies,
reports, overhaul of an engine, painting a building, etc. Fund an entire undertaking with
appropriations current when the contract (or agreement) is executed.18
3. Amount
The Anti-Deficiency Act (ADA) prohibits any government officer or employee from making or
authorizing an expenditure or obligation in advance of or in excess of an appropriation,19 making or
authorizing an expenditure or incurring an obligation in excess of a formal subdivision of funds, or
15 See 31 U.S.C. § 1502(a) (2013).
16 See DEP’T OF DEFENSE, DEFENSE FINANCE AND ACCOUNTING SERVICE, DFAS-IN Reg. 37-1, DEFENSE FINANCE AND
ACCOUNTING SERVICE REG. INDIANAPOLIS 37-1 ch. 8 (Jan. 2010) [hereinafter DFAS-IN 37-1].
17 See Mr. H.V. Higley, B-134277, Dec. 18, 1957, available at http://redbook.gao.gov/6/fl0029466.php.
18 See DFAS-IN 37-1, supra note 16, ch. 8.
19 See 31 U.S.C. § 1341 (2013).
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in excess of amounts permitted by regulations prescribed under 31 U.S.C. § 1514(a);20 or from
accepting voluntary services, unless authorized by law.21
Commanders must ensure that fund obligations and expenditures do not exceed amounts provided
by higher headquarters. Although over-obligation of an installation O&M account normally does
not trigger a reportable ADA violation, an over-obligation locally may lead to a breach of a formal
O&M subdivision at the Major Command level.22
Commanders must investigate suspected violations to establish responsibility and discipline
violators. Regulations require “flash reporting” of possible ADA violations.23 If a violation is
confirmed, the command must identify the cause of the violation as well as the senior responsible
individual. Investigators file reports through finance channels to the office of the Assistant
Secretary of the Army, Financial Management & Comptroller (ASA (FM&C)). Further reporting
through Office of the Secretary of Defense (OSD), Office of Management and Budget (OMB),
Government Accountability Office (GAO), President, and Congress is required if ASA (FM&C)
concurs with a finding of a violation.
By regulation, commanders must impose administrative sanctions on responsible individuals.
Criminal action also may be taken if a violation was knowing and willful.24 In previous cases,
lawyers, commanders, contracting officers, and resource managers all have been found to be
responsible for violations. Common problems that have triggered potential ADA violations include
the following:
• Without statutory authority, obligating (e.g., awarding a contract) current year funds for the
bona fide needs of a subsequent fiscal year. This may occur when activities stockpile supply
items in excess of those required to maintain normal inventory levels.
• Exceeding a statutory limit (e.g., funding a contingency construction project in excess of
$750,000 with O&M; acquiring investment items with O&M funds).
• Obligating funds for purposes prohibited by annual or permanent legislation.
• Obligating funds for a purpose for which Congress has not appropriated funds (e.g., personal
expenses where there is no regulatory or case law support for the purchase or where Congress
has placed a funding prohibition).
C. Military Assistance to Civil Authorities
The military’s mission is to fight and win the nation’s wars. DoD will operate with civil authorities,
but the relationship is generally one of support—the civilian authorities retain primary
responsibility for responses. The starting point for all DoD support is DoD Directive (DoDD)
3025.18. The Posse Comitatus Act (18 U.S.C. § 1385) provides limitations on the types of support
20 See 31 U.S.C. § 1517 (2013).
21 See 31 U.S.C. § 1342 (2013).
22 See 31 U.S.C. § 1514(a) (2013) (requiring agencies to subdivide and control appropriations by establishing
administrative subdivisions);
31 U.S.C. § 1517 (2013); DFAS-IN 37-1, supra note 16, ch. 4.
23 See DEPARTMENT OF DEFENSE, DoD 7000.14-R, FINANCIAL MANAGEMENT REGULATION vol. 14 (Nov. 2010)
[hereinafter DoD 7000.14-R]; DFAS-IN 37-1, supra note 16, ch. 4.
24
31 U.S.C. §§ 1349 -1350 (2013).
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that the military may provide to civil authorities. The following are areas of common allowable
military support and their governing policies and authorities:
•
Civil disasters and emergencies. Stafford Act (42 U.S.C. §§ 5121, et seq.), DoDD 3025.18
•
Civil disturbances; Insurrection Act. 10 U.S.C. §§ 331-335, DoDI 3025.21
•
Support to civilian law enforcement:
¾ Sharing information. 10 U.S.C. § 371, DoDI 3025.21
¾ Loan of equipment. 10 U.S.C. § 372, DoDI 3025.21
¾ Expert advice and training. 10 U.S.C. § 373, DoDI 3025.21
¾ Maintenance and operation of equipment. 10 U.S.C. § 374, DoDI 3025.21
•
Counterdrug support:
¾ Detection and monitoring. 10 U.S.C. § 124
¾ Training and other support. § 1004, Fiscal Year (FY) 91 NDAA, as amended by
§ 1021, FY 02, NDAA; CJCSI 3710.01B
•
Innovative Readiness Training. 10 U.S.C. § 2012, DoDD 1100.20
•
Department of Defense Support to Special Events to include support to International Supporting
Events. 10 U.S.C. § 2564(a)-(c), DoDI 3025.20
•
Support to Private Organizations. 10 U.S.C. § 2554 (Boy Scouts of America), 10 U.S.C.
§ 2555 (Girl Scouts of America), 10 U.S.C. § 2551 (National Veterans’ Organizations), 10
U.S.C. § 2552 (American Red Cross), 10 U.S.C. § 2558 (National Military Associations), and
10 U.S.C. § 2556 (Homeless)
•
Loan or Lease of Non-Excess Property of a Military Department. 10 U.S.C. § 2667 (to anyone),
Army Regulation (AR) 700-131, Loan and Lease of Army Material, and 31 U.S.C. § 1535
(Agency Agreements)
•
Military Assistance to Safety and Traffic (MAST). DoDD 3025.1-M
•
Explosive Ordinance Disposal (EOD): AR 75-14, AR 75-15
•
Military Working Dogs. DoDD 5200.31E, AR 190-21
•
Miscellaneous support:
¾ Sensitive support. DoDD S-5210-36
¾ Law enforcement detachments. 10 U.S.C. § 379
¾ Emergencies involving chemical or biological weapons. 10 U.S.C. § 382
D. DoDD 3025.18
This Directive governs DoD military assistance provided to civil authorities within the 50 States,
District of Columbia, Puerto Rico, and U.S. possessions and territories. It provides six criteria (the
CARRLL factors) against which all requests for support shall be evaluated. Commanders at all
levels should use these criteria when providing a recommendation up the chain of command.
• Cost - who pays and the impact on DoD budget.
• Appropriateness - whether conducting the requested mission is in the interest of DoD.
• Readiness - impact on DoD’s ability to perform its primary mission.
• Risk - safety of DoD forces.
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