Opening the Gate?: An Analysis of Military Law Enforcement Authority over Civilian Lawbreakers on and off the Federal Installation

AuthorMajor Matthew J. Gilligan
Pages01

MILITARY LAW REVIEW

Volume 161 September 1999

OPENING THE GATE?:

AN ANALYSIS OF MILITARY LAW ENFORCEMENT AUTHORITY OVER CIVILIAN LAWBREAKERS ON AND OFF THE FEDERAL INSTALLATION

MAJOR MATTHEW J. GILLIGAN1

Fort Swampy is a large Army installation with exclusive federal jurisdiction. At 2200 one night, military policewoman Sergeant Lisa Smith is driving a police vehicle on traffic patrol when she receives an order to pick up a shoplifter detained at the post exchange by a store detective. Upon arrival, she is shocked to see a man run from the store, grab a woman standing at the gas pumps, violently push the woman into her car, jump into the car with the woman, and speed away. Sergeant Smith pursues the vehicle for two miles at high speeds toward an exit gate that is only open during daytime. Finding the gate closed, the man exits the car, climbs over the gate fence, and runs away. Sergeant Smith quickly ensures the woman is safe, then climbs the fence, draws her 9mm handgun, and pursues the man on foot, chasing him into a crowded trailer park. The man is exhausted, so she gains on him. At thirty feet, he suddenly turns in the darkness, it appears he has a gun. Sergeant Smith fires- bamm, bamm!! The shots miss, but the man hits the ground and gives up. As reinforcements arrive, Sergeant Smith handcuffs

the man and instructs another military police officer (MP to transport him to the MP station.

  1. Introduction

    Sergeant Smith has saved the day, apprehending a dangerous felon. But what exactly are the limits of her authority? Can she legally exercise her military law enforcement authority outside the gates?

    This article examines the authority that military law enforcement officials2 may exercise over civilian lawbreakers. Specifically, the article seeks to clarify the legal bases for the assertion of military police power over civilians in various contexts-both on and off the federal military installation.3 The focus is on the exertion of authority at the initiative of

    military officials, and not at the request of, or in cooperation with, civil authorities.4

    The primary focus of this article is to study the power of military officials to conduct warrantless arrests of civilians.5 The decision to arrest is a critical stage in the assertion of police authority, and is perhaps the most intrusive of all governmental powers. An illegal arrest may violate the Fourth Amendment's guarantee to be free from unreasonable seizures;6 evidence seized incident to (weapons, contraband) or resulting from (confessions, identifications) an illegal arrest will be suppressed by courts as "fruit of the poisonous tree."7 In particularly egregious cases, an illegal arrest may warrant a civil tort action.8 The authority to arrest is thus an extraordinary power, the abuse of which raises grave concerns. Accordingly, this article provides military law enforcement officials and the attorneys who advise them with clear guidelines on the authority to arrest a civilian.

    Section II reviews the legal limitations to military authority over civilians, including the lack of federal statutory arrest authority, and the specific limitation of the Posse Comitatus Act,9 which generally prohibits military assistance to civil authorities in enforcing civil laws.10 Section III reviews the principle legal basis for the assertion of military law enforcement authority over civilians: the inherent authority and responsibility of the installation commander to maintain law and order and protect the inhabitants of the installation.11 Section III also reviews the principle exception to the Posse Comitatus Act allowing for this exercise of military police power: the Military Purpose Doctrine, which permits actions taken for the primary purpose of furthering a military function, regardless of the incidental benefits to civil authorities. This article analyzes the Military Purpose Doctrine in the context of both on- and off-post applications of authority.

    Finally, Section IV studies two likely off-post scenarios where military law enforcement officials will need to make instantaneous decisions

    about the extent of their authority: (1) a civilian lawbreaker, being followed in "hot pursuit," crosses outside the boundary of federal jurisdiction; and (2) a military official, within a close response range, personally

    observes-or is requested to respond to-a crime in progress off the installation.12 In determining the legal bases for military officials to exert authority in these scenarios, Section IV reviews not only the commander's inherent authority and the Military Purpose Doctrine, but other theories as well, including "citizen's arrest" authority and the common law doctrine of extraterritorial authority to arrest when in "hot pursuit."

  2. Limiting the Role of the Military in Civil Law Enforcement

    A firmly rooted constitutional principle of American government is that the federal armed forces shall be subordinate to civil authorities.13 Perhaps nowhere is this principle more sacred than in the context of law enforcement, where there exists an historic tradition of strictly limiting direct military involvement in civilian law enforcement activities.14

    While there have been, and will continue to be, instances when military authorities are lawfully employed to assist civil authorities,15 the primary responsibility for maintaining law and order in the civilian community is vested in state and local governments.16 There are, of course, certain federal agencies-but not the Department of Defense-that are granted statutory law enforcement authority over civilians who violate federal penal statutes.17

    This section reviews the two primary limitations on the exercise of military law enforcement authority over civilians: (1) the lack of congressionally granted statutory authority to arrest; and (2) the Posse Comitatus Act. The first limitation reflects Congress's determination that the military has no active role in civil law enforcement. As this article demonstrates, however, the military inevitably must assert some law enforcement authority over civilians-as a minimum, military commanders have the inherent authority and duty to maintain law and order on military installations and to guarantee the security of the occupants thereon. The second limitation, therefore, is an affirmative effort by Congress-via a criminal prohibition- to ensure that, beyond these limited authorized uses, the military is never deliberately used as an active police power over the civilian populace.

    1. No Statutory Authority for Military Law Enforcement Officials to Arrest Civilians

      The military lacks statutory formal arrest authority over civilians. "Formal arrest" means the authority to take a lawbreaker into physical custody for the purpose of exercising criminal jurisdiction over him.18 For federal officials, the authority to conduct a formal arrest requires an affirmative statutory grant of power by Congress.19 Arrests that are conducted

      without such authority are unlawful and invalid, unless they are upheld under common law doctrines or other authority.20

      Several federal agencies, such as the Federal Bureau of Investigation,21 the U.S. Marshals,22 and the Secret Service,23 have broad statutory authority to arrest persons for violations of federal law.24 Military law enforcement authorities, however, do not possess statutory arrest authority over civilians.25

      Congress has specifically granted to military law enforcement officials statutory arrest authority over service members for violations of the Uniform Code of Military Justice.26 This authority applies worldwide.27 But, while the grant of authority does not prohibit civilian arrests, it does not specifically provide for such powers.28

      Because they lack statutory formal arrest powers over civilians, military law enforcement officials must rely on other bases of legal authority to arrest civilian lawbreakers. Determining these "other bases of legal authority" is the crux of this article. As will be revealed, under such generally accepted common law bases as the installation commander's inherent authority to maintain law and order and protect the installation, the doctrine of extraterritorial authority to arrest when in "hot pursuit," and "citizen's arrest" authority, military law enforcement officials do in fact possess arrest authority in many circumstances. These bases will be explored in Sections III and IV.

    2. The Posse Comitatus Act

      As stated above, the lack of statutory authority requires military law enforcement officials to rely on other legal bases to assert police power over civilians. But even where the common law permits the military to act, an additional hurdle must always be crossed: the Posse Comitatus Act. The Posse Comitatus Act is the primary restriction on the use of military personnel in civilian law enforcement activities. The Act prohibits using military personnel29 to execute civil laws unless authorized by the Constitution or an Act of Congress:

      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.30

      In 1981, Congress enacted legislation to help clarify the types of support military forces may provide to civil law enforcement agencies without violating the Act.31 The fundamental limitation described by this legislation is that military members32 may not "directly participate" in civil law enforcement operations.33 Direct participation includes search and seizure, arrest, and other similar activities.34 The Department of Defense has implemented this legislation with Department of Defense Directive

      5525.5,35 and each military department has in turn developed regulations to implement the Directive.36

      Numerous state and federal courts have interpreted the meaning of the Posse...

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