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June 1991
MILITARY SUPPORT TO
CIVILIAN LAW ENFORCEMENT AGENCIES
By
R. Barry Cronin
Major
U.S. Marine Corps Headquarters
Washington, D.C.
If a cross-section of police chiefs were polled concerning
their understanding of the Posse Comitatus Act, most would
likely answer that the act prohibits U.S. military personnel
from performing civilian law enforcement functions. (1)
However, to assume that Posse Comitatus prevents law enforcement
agencies from obtaining any military support would be a mistake.
In fact, several exceptions to the general prohibition exist,
and civilian police organizations should not be reluctant to
seek the military's help in certain circumstances.
This article provides an overview of the type of military
support available to civilian law enforcement agencies. It then
describes briefly the procedures for requesting military
assistance, depending on the type and amount of support desired.
PERMISSIBLE DIRECT ASSISTANCE
As a general rule, the Posse Comitatus Act restricts direct
use of military personnel in civilian law enforcement
operations. Direct assistance is defined as: 1) A search or
seizure; 2) an arrest, apprehension, stop and frisk, or similar
activity; or 3) the use of military personnel for surveillance
or pursuit of individuals, or as undercover agents, informants,
investigators, or interrogators. (2)
Despite these restrictions, it is military policy to try to
cooperate with civilian law enforcement officials to the maximum
extent possible, depending upon national security and military
preparedness, the tradition of limiting direct military
involvement in civilian law enforcement activities, and the
requirements of applicable law. (3) Even so, direct assistance
is permissible when it is with the "...primary purpose of
furthering a military or foreign affairs function of the United
States, regardless of incidental benefits to civilian
authorities." (4) The key is that direct assistance must
support military interests. Police chiefs, especially those
with jurisdictions near major military installations, should be
aware of this important exception and of the various forms of
military assistance available locally.
TYPES OF AVAILABLE ASSISTANCE
Military Working Dog Teams
The most widely requested form of military assistance is
the military working dog (MWD) teams, which are located at
almost every major Department of Defense (DoD) installation in
the United States. (5) Normally, military bases have both
explosive and drug detector dog teams available for use by
civilian law enforcement with the understanding that military
commitments will usually take precedence over civilian requests.
(6)
Training
Every year, scores of civilian police agencies take
advantage of firing ranges, combat towns, and other military
training facilities. Depending on the size of the military
installation, these facilities can vary from a standard, small
arms requalification range to a full-scale combat town where
police tactical units can practice in a realistic, urban
setting. There are also demolitions ranges, as well as training
areas where teams can conduct a variety of outside exercises.
Additionally, office spaces and buildings may be used for
traditional classroom training. And, if available, military
instructors may also be used to train civilian law enforcement
personnel. (7)
Expert Advice/Technical Assistance
The military is authorized to provide expert advice to
civilian law enforcement agencies. (8) There is no restriction
on this kind of support so long as military personnel do not
participate directly in civilian law enforcement activities.
Equipment and Personnel
Military equipment can be loaned to civilian law
enforcement agencies on a temporary basis to support on-going
operations and training. Approval for these requests is handled
on a case-by-case basis. (9) In addition, personnel may also be
requested in situations where it would be impractical from a
cost or time perspective to train civilian personnel to operate
and/or to maintain equipment. (10) For example, recently, a
local police department requested assistance from a nearby
Marine Corps base concerning a homicide case. Eleven Marines,
using mine sweepers, were assigned to help the local police
department conduct an area search for the homicide weapon. In
this case, it would have been highly impractical to train local
police department members on how to use mine sweepers properly.
In such cases, however, service members operating or
maintaining equipment should not be placed in positions where
violations of the Posse Comitatus Act might occur.
Emergency Situations
In an emergency, civilian law enforcement authorities
cannot waste time tracking down helicopters, dive teams, or
explosive ordnance disposal (EOD) technicians. Fortunately, the
military possesses a variety of capabilities to which a civilian
law enforcement department may not have access. In fact,
military search and rescue helicopters and military divers
frequently aid civilian law enforcement in searches for boats
and missing persons on oceans, lakes, or rivers. In addition,
military EOD technicians regularly assist civilian law
enforcement officials in ordnance recovery and disposal
operations.
HOW TO REQUEST ASSISTANCE
There are various regulations regarding military support to
civilian law enforcement agencies, and the level at which DoD
approval is granted varies according to the amount and duration
of the support desired. For example, in many cases, the base
commanders can approve requests, while other requests must have
higher approval. In addition, the military may require
reimbursement for certain services. (11)
However, civilian law enforcement officials need not be
completely familiar with all of these regulations. The senior
military law enforcement official stationed at each installation
is the point of contact for these services and can provide all
the necessary information regarding any rules or regulations.
Law enforcement agencies near Army or Marine Corps installations
should contact the Provost Marshal. Those agencies near Air
Force bases should contact the Chief of Security Police, while
requests for assistance from area naval bases should be directed
to the Security Officer.
CONCLUSION
This article has briefly described a few of the exceptions
to the Posse Comitatus Act with regard to civilian law
enforcement requesting military assistance. Every year,
hundreds of requests for assistance from civilian law
enforcement are successfully supported by the U.S. military. As
stated previously, routine requests can be approved locally, and
civilian law enforcement administrators should contact their
military counterparts about available support. The U.S.
military stands ready to provide civilian law enforcement with
whatever assistance it can, in accordance with the complex
stipulations of Posse Comitatus. In many cases, all an agency
has to do is ask.
FOOTNOTES
(1) The Posse Comitatus Act provides: "...whoever, except
in cases and under circumstances expressly authorized by the
Constitution or Act of Congress willfully uses any part of the
Army or Air Force as a posse comitatus or otherwise to execute
the laws shall be fined not more than $10,000 or imprisoned not
more than two years or both." 18 USCA sec. 1385 (1984).
(2) SECNAVINST 5820.7B (paragraph 9.a.(3)) March 28, 1988.
(3) Ibid., paragraph 6.a.
(4) Ibid., paragraph 9.a. (2).
(5) 10 USCA sec. 374(b)(2) (1989).
(6) Capt. James L. Setzer, "Bomb Dog Teams," FBI Law
Enforcement Bulletin, July 1990, pp. 12-13.
(7) 10 USCA sec. 373 (1989).
(8) 10 USCA sec. 371-380 (1989).
(9) Supra note 5.
(10) 10 USCA sec. 372 (1989).
(11) 10 USCA sec. 377 (1989).