The Use of Force to Protect Government Property

• Author: By Captain Darrell L. Peck
• Pages: 02

I. INTRODUCTION

His rifle slung loosely over his shoulder, the young soldier looked over the Nike site in the dim moonlight. This was his first time on sentry duty and he had not realized how lonely it could be. Suddenly he was startled by a sound near the fence. Straining his eyes, he made out a crouching figure moving from the fence toward the center of the site. "Halt," he cried, unslinging his rifle. The flgure stood erect for an instant, then began to run. "Halt I Halt or I'll shoot." shouted the sentry. The figure continued across the site. The rifle cracked, once, then again, resounding in the stillness of the night, as the sentry fired into the air, Still the figure ran, faster than ever. The sentry aimed his weapon after the retreating figure and pulled the trigger.

A rare incident? Unfortunately, it is not. For example, in a period of only two months the United States Army Air Defense Command experienced twelve known penetrations or attempted penetrations into its Nike sites. In five of these twelve cases, the sentry fired at the intruder.1

Who was the intruder? Perhaps it was a saboteur, or possibly an espionage agent seeking important information for a foreign power. More likely, however, it was a thoughtless teenager taking a short cut, or a nearby resident looking for his cat, or, at worst, B petty thief out to get a few gallons of gasoline. Is the sentry justified in shooting at any or all such intruders?

agency.

** JAGC; Inatruetor, MilitsFy Affairs Division, The Judge Advocate General's Schaal, U.S. Army, Chaiiottesviile. Va.; A.B., 1862, Marqurtte University, LL.B., 1964. Marpuette University; Member of the Bar of the States of Washington and Wiaeonain, and of the United States Supleme Court. United States District Court, Eastern Diatrict of Wiicanain, snd the United States Court of Yilitnn Apprda.

1 See JAGA 186114S26 (26 Aug. 1961). Na injury was inflicted in any of these eases.

*oo 5,108 81

Unless he is speciflcally instructed to the contrary, the sentry will very likely as8ume that he is. He is required to memorize general orders which direct him to "take charge of this post and all government property in view" and "to challenge all persons on or near my post and to allow no one to pass without proper authority."z He is given a weapon and, in many cases, live am. munition. Quite naturally he assumes that he is expected to use them. As one young private put it after wounding a fleeing civilian, ". . . that is what weapons were there for, to use."8

Thus, because the sentry is armed with a deadly weapon the problem of when and how much force he may legally use in protecting government property & is a particularly acute one. But the same basic problem extends to every person intrusted with the custody of government property or the responsibility far protecting it. W3a.t may the military driver do when he discovers someone slashing the tires of the vehicle assigned to him? Or the motor sergeant when he sees someone stealing a can of gasoline? In each case the serviceman 6 will act according to his own best judgment to protect the property intrusted to his care, even though this may involve the use of force.

But what are the legal consequences af his use of farce? Khat law will be applied in passing judgment an his conduct? What are the general legal principles governing the use of force in such eases? These are some of the problems which will be dealt with in this article.

11. THE PARTIES AND THE L4W A. THE CNITED STATES AS DEFENDANT

If an injury is caused by the unprivileged or excessive use of force in protecting government property, the injured party could conceivably seek compensation either from the individual serviceman or, under the principle of respondeat superior, from the

2 See C.S. DEP'T OF ARMY. FIELD MAIUAI 110. 26-5, INTER~DR

GCARD, para.

8 Lewis Y United States, 194 F.2d 688, 682 i3d Clr. 1952)4 The term proprty 81 used herein refers to real and persons1 pr0peitY ingeneral There 3% no dircuasion of legal problems peculiar to m y particular type of properry or sriaing from the special nature of such property is.&, nuclear mafeml~, property of B claaaihed or restricted nsture).

5 The term rervicemsn is used for eonvenancr. With the exception of the Pome Comitabcs Act, 18 U.S.C. 5 1385 i18581, discussed below. the same legs1 principles are generally applicable ta civilian guards and ather employees of the United States who have no specific statvtary law enforcement authority.

5 i1856).

*oo 64608

USE OF FORCE

United States. It is to be expected that the injured party would prefer to recover directly from the United States since servicemen in general, and especially those usually performing guard duty, are not noted for their affiuence.

A formidable obstacle to any civil action directly against the United States, however, is the fact that claims based on assault, battery, false imprisonment, and false arrest, all the torts most likely to be committed in connection with the defense of mvernment orooertv. are mecificallv excluded from the Federal Tort Claims Act.? No; are such claims payable ad. ministratively.8

This has not prevented imaginative plaintiffs from suing the United States, however. There have been several casea, for ex-ample, in which negligence has been alleged in connection with the serviceman's unprixdeged or excessive use of force.

Typical of these is the case of Collins v. United State89 in which suit was brought under the Federal Tort Claims Act alleging negligence on the part of a military policeman. The military policeman had parked his duly assigned Army vehicle outside of a hotel in the civilian community and had gone Inside. When he came out he discovered Collins partly in the cab of the vehicle and two other civilians standing just outside of it. The military police. man, drawing and cocking his .46 pistol, demanded an explanation of what the three men were doing and lined them up at gun point. Collins attempted to seize the pistol but the weapon discharged, wounding him.

Although the use of a pistol may possibly have been excessive under the circumstances and therefore might have constituted an assault, the allegation of negligence seems somewhat strained. Apparently the court thought so too, aince it found that the plaintiff had failed to sustain the burden of proving negligence on the part of the military policeman. and therefore dismissed the suit.10

Recovery against the United States on the theory of negligence was allowed under similar facts in the Tastor ease," where a

7 Ch. 753, 60 Stat. 842 (1346). 8s amended (codinad in scattered sections of

___

BSee 28 U.S.C. 8 2680ch) (1358).

9* I, Q r % _I I.U.V.,.

BSee, e.&., Army Regs. No,

26-26, para, 5m(6) (1 Oct. 1350); Army Regs. No. 26-30. para. 81 11 Oet. 1363)s35 F. Supp. 522 (W.D. Pa. 1351).lollrid. (alternative holding). The Court also found that there WPP eon- II Tastor V. United Ststel, 124 F. Supp. 618 (N.D. Cal. 1354). tributary negligence on tho part of the pisintiff.

26 XILITARY LAW REVIEW

person trying to disarm a soldier guarding B ship was killed when the soldier's pistol discharged during the seufle, and in the Cerri case,'* where B bullet fired by a soldier without sufficient justificatian at a person escaping from arrest struck an innocent by. stander.13 However, no suit against the United States has been successful when the serviceman intentionally fired at the plaintiff or plaintiffs decedent."

Thus, it appears that any suit far damages arising from the intentional use of unprivileged or excessive force against the injured party is not properly brought against the United States. And, of course, the United States is never criminally liable for the acts of its agents.

B. THE INDIVIDUAL AS DEFENDANT

Kith reaard to the individual serviceman, the possibility of criminal liability to bath state and federal governments must be considered in addition to any possible civil liability for damages.lj

It has long been recognized that an officer of the United States is not subieet to the criminal sanctions of a state for acts done within the scope of his duties." Some decisions appear ta base this immunity on lack of jurisdiction in state courts.

. . [Wlhere an officer from excess of zeal or misinformation, or lack af rood judgment in the perfarmanee of what he eaneeives ta be his duties as an officer. in fact transcends his authority, and invades the rights of individuals, he IS answerable to the government or power under whose appointment he is acting, and may also lay hlmself liable to answer taa prlvate lndrviduai who is injured or oppressed by his action; yet, where there is no criminal intent on his part, he does not become llsble to an~rerto the criminal process of B different governrnant.17

12 Cerrl I. United States, 80 F. Supp. 831 (N.D.

Cai. 1848).18 It may be significant that bath easel ~n which recovery was allowed were decided ~n the sama dwnan of the same &strict C O Y T ~ . although not by the

__

same judge.

14 See, e.#, Stepp I, United States, 207 F 2d 909 (4th Cir. 1853), esrl. denud. 347 U.S. 933 (1911): Lev?% V. United States, 194 F.2d 689 (3d Clr. 1962): Ferran I. Enited Stales. 144 F. Supp. 612 (D.P.R.

19561.

15 A detailed analysis of tbe criminal and 'ivil liability of federal employees for acts done in the performance of rheir duties 19 bfgand the eeope of this article. Only B brief resume is inciuded here.

36 See I n Neagie. 135 U.S. 1, 75 (1890); In 78 Wait*. 81 Fed. 359 (F.D.

Iowa 1SYi). ad'd 88 Fed. 102 (6th Cir. ISSB), appeal dtamzesd, 180

U.S. 636 (1901): Broan Y C a x 58 F. SUPP. 56 (ED. Pa. 1944). Thin rule IS siso npplmble to enlirte3 members of the armed forces. liz i e Fair, 100 Fed. 149 (C.C

D Xieb 1900)171% ?e Lewis. 83 Fed. 169. 160 (N D. Warh. 1897) A m a d Brown V. Cam, siipm note 16.

84 A 0 0 6,108

Other decisions appear to recognize performance of a federal duty ad R substantive defense to state prosecution without actually denying the existence...