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Military support during a pandemic

Military support during a pandemic

There are many issues police leaders should address to reduce the public anxiety that can accompany an increased military presence in communities

By Lewis “Von” Kliem, MCJ, JD, LLM

As America continues to battle the COVID-19 pandemic, communities may see an increase of military personnel assisting with the response. Although television has conditioned many of us to equate the presence of soldiers with “martial law,” the reality is that military support during a pandemic is far more likely to come in the form of medical care, transportation, construction, equipment, and supplies.

In this article, I’ll address two of the topics that often accompany increased military support during emergency responses: quarantines and the Posse Comitatus Act. I also provide a list of questions that public safety professionals can use to alleviate some of their anxiety and confidently synchronize their public safety efforts with any military response.

Military Support to Quarantines

The federal government’s quarantine and isolation authorities are administered by the Centers for Disease Control and Prevention (CDC) and are primarily aimed at the protection of national borders, interstate travel, and federal property. The military can support these efforts, but it is more likely you will see U.S. Customs & Border Protection, U.S. Immigration and Customs Enforcement, and the United States Coast Guard carrying out these missions. [1]

At the local level, even during national pandemics, quarantine and isolation efforts will primarily fall to local governments operating under state law. State and local personnel, including state-controlled National Guard, remain the primary response, with the federal government preferring to play a supporting role.

If states do request federal support, the active-duty military is just one potential source of assistance. If the military is tasked with these missions, they will carefully plan their operations to minimize unnecessary confrontations between military personnel and civilians. Out of respect for state sovereignty, the military provides domestic support under a “last in” and “first out” approach; allowing it to quickly remove its presence once the mission has been accomplished.

Even with the military’s commitment to states’ rights, any increase in a local military presence can certainly raise anxiety levels and prompt discussions about the Posse Comitatus Act and the military’s long-standing practice of avoiding civilian affairs.

Posse Comitatus Act

The Posse Comitatus Act (PCA) was originally intended to end the use of federal troops in state elections during the reconstruction era. It has since come to represent the federal government’s reluctance to use the military in executing civil laws. [2]

Generally, the PCA prevents the direct participation of the active-duty military in a search, seizure, arrest, or similar activity. The often-repeated shorthand is, “the military can’t arrest civilians,” and in large part that is true – but only when the arrest is done for the primary purpose of helping civilian law enforcement. Where the arrest was done for a “military purpose,” the PCA simply doesn’t apply.

While there are dozens of legislative and court recognized exceptions to the PCA, this “military purpose” doctrine continues to provide the most confusion.

Military Purpose Doctrine

Since the PCA was intended to prevent military involvement in civilian affairs, nothing in the Act (or its implementing regulations) keeps the military from performing military functions – even where those functions may result in direct “law-enforcement-type” activities.

This means, regardless of the ultimate mission, if the military has developed security measures for the protection of military personnel, property, and functions, those measures will be legally enforceable against all persons, including civilians. In its simplest terms, the PCA does not require the military to stand by and watch as civilians steal their medical supplies.

Military Purpose Limitations

Although the PCA doesn’t prohibit direct law-enforcement-type activities (when conducted primarily for a military purpose), constitutional rights still apply to these activities, including any searches, seizures, or use of force.

Military operations taking place in the U.S. are planned with military attorneys specializing in Domestic Operational Law. These attorneys are experts at anticipating military security and enforcement activities and keeping those activities closely related to their underlying military purpose.

Activity that is overly broad and only indirectly or marginally related to the mission may result in a violation of the PCA. For that reason, domestic operations are ideally planned to avoid even the appearance of assisting civilian law enforcement, executing civilian law, or intruding into civilian affairs – unless, of course, specific statutes authorize such support.

Public Safety Coordination with Military Operations

Military officials operating under the National Incident Management System (NIMS) know the importance of aligning their command and control, communications, resources, and authorities with state and local responses.

As part of this alignment, military planners will work with public safety liaisons before deploying into a civilian jurisdiction. Ideally, these relationships will have been established by the Defense Coordinating Officer and their team well before any real-world emergency.

Regardless, whether you’ve known the liaison for months or you’ve just met, specific mission assignments will still benefit from final coordination. As part of this coordination, public safety officials should consider asking the following questions:

  • What are the military authorities and limitations associated with the mission?
  • What security activity and area are related to the mission? (Specify whether this will involve static security, foot patrols, mobile patrols, and how their personnel will be identified.)
  • What steps have been taken to minimize the chance of confrontation between military personnel and civilians? (Limited area of patrols? Signage? Barriers?)
  • What are the command policies for detention, emergency response driving, pursuit, and surveillance?
  • What is the express military purpose of any security activity? (Protect military or federal property or personnel? Ensure the accomplishment of a military mission?)
  • What direct support to civilian law enforcement can the units provide? What support is prohibited? Are there overlapping areas where accomplishing the military mission will have an incidental benefit to civilian law enforcement? Can you plan for the incidental benefit?
  • What methods of communication and information sharing will be used?
  • Can local civilian agencies request the use of military patrols? Who will control the military units? Are there any military assets that can be shared with local law enforcement?
  • What are the military “rules for use of force” (“Mission RUF”) and arming status? What intermediate force options will the military have available? How do these compare to local use of force policies?

Although there are certainly more questions that you’d like answered as you prepare for military support, knowing the answers to the above security-related questions can help inform public information briefings, deconflict emergency operations and reduce the anxiety that can accompany an increased military presence in your communities.

References

1. Although the United States Coast Guard is one of the eight military services in the United States, it has the authority to operate as both a law enforcement agency (under the Department of Homeland Security) and as an armed service (under the Department of the Navy).

2. The Posse Comitatus Act, 18 U.S. Code, Section 1385, states: Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both. (The Navy and Marine Corps were made subject to similar restrictions through DoD regulations.)


About the author

Lewis “Von” Kliem, MCJ, JD, LLM, is a senior policy attorney for Lexipol. With nearly 30 years in the criminal justice profession, Von worked as a civilian police officer, military attorney, educator and author. As an Army Judge Advocate (ret.), Von was recognized as an expert in Domestic Operational Law and Defense Support to Civil Authorities. He was an installation Domestic Operations Legal Advisor, legal advisor to the Region VII Defense Coordinating Officer and, as a member of the Army Staff, practiced Domestic Operational Law in support of some of the Pentagon’s top attorneys.

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