1 authority & jurisdiction cpt kennebeck, ja usamps, law division

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Authority & JurisdictionAuthority & Jurisdiction

CPT Kennebeck, JA

USAMPS, Law Division

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Why Study This Stuff?Why Study This Stuff?

You are a part of the justice system Hesitation kills You need to know the basic rules that

give you authority (power) You must understand where and when

you have power (jurisdiction)

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Terminal Learning ObjectiveTerminal Learning Objective

ACTION: Enforce the laws governing authority and jurisdiction

CONDITION: Given classroom instruction, a discussion of current case law, and applicable statutes and regulations.

STANDARD: Enforced the laws governing authority and jurisdiction IAW applicable statutes, regulations and court decisions.

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A. General IntroductionA. General Introduction

What is Authority?– It is the right to exercise power….to

implement and enforce laws

What is jurisdiction?– Power and authority of a court to hear and

determine cases

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Jurisdiction and YouJurisdiction and You

Authority and jurisdiction spill over to you. – You are part of the process just like the

courts.– You need to know who you can control with

your “power” (UCMJ, orders, etc.)

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B. Sources of AuthorityB. Sources of Authority

U.S. Constitution– Article 1: Congress can pass laws– Article 2: President is commander in chief– Article 3: U.S. Supreme Court interprets– Bill of rights

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Laws from Congress– UCMJ - Uniform Code of Military Justice– USC - United States Code

Rules from President– Article 36, UCMJ: Congress gives the

President power to decide sentences and other rules.


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Army Regulations Post regulations SOPs Custom

What if one of those sources conflicts?– Constitution = “minimum rights”– Rules can be added – nothing taken away


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C. Military OffensesC. Military Offenses

ALL authority can be traced to the punitive articles of the UCMJ.

What do I mean?

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Disrespect of Superior Disrespect of Superior Commissioned Officer Commissioned Officer

[Art. 89 UCMJ][Art. 89 UCMJ]

Certain language to or concerning a commissioned officer

Behavior/language was directed toward officer

Officer was accused’s superior

Knowledge

Behavior or language was disrespectful

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What is disrespect?– Behavior that detracts from good order and

discipline– Name-calling, refusal to salute, marked disdain– Insolence, undue familiarity, other rudeness

Must “victim” be in the execution of his office?– NO, on-duty or off-duty



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When is victim “superior” to accused?– Same armed force?

Must be superior but need not be in chain

– Different armed forces? Must be superior AND in chain of command

What if accused didn’t know “victim” was her superior commissioned officer?– Must have knowledge

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Do contemptuous, but truthful, remarks violate this UCMJ offense?– Yes– TRUTH IS NO DEFENSE

What if “victim” was not present when contemptuous remarks were made?– Need not be present

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Is “victim’s” behavior always irrelevant?– NO, victim can lose protected “status”– DIVESTITURE: behavior that departs

substantially from required standards appropriate to rank or position

– Marine said, “Let me see you put me flat on my back”

What about assault though?

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Insubordinate Conduct Toward Insubordinate Conduct Toward a Noncommissioned Officer a Noncommissioned Officer


A warrant officer or enlisted member Did or omitted certain acts or used certain

language Toward and within the sight or hearing Of a warrant, NCO or petty officer in the

execution of office Knowledge Behavior or language was disrespectful

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Disrespect to Officer VERSUSDisrespect to Officer VERSUSDisrespect to NCO Disrespect to NCO

Commissioned officer cannot be found guilty of Disrespect to NCO (but try Article 133)

Disrespect to NCO does not require that “victim” be accused’s superior (required in Article 89)

Disrespect to NCO requires that “victim” be in execution of office (not true for officers, Article 89)

Disrespect to NCO requires that disrespectful behavior or language be within the sight or hearing of the “victim” (not true for officers, Article 89)

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Disrespect & Insubordination Disrespect & Insubordination ExamplesExamples

Accused contemptuously turned and walked away from superior who was still talking to accused - Ferenczi, 27 CMR 77

Accused greeted female superior with “Hi, sweetheart” - Dornick, 16 MJ 642

Accused pointed finger at trial counsel and said, “You are going to get it.” - Gray, 14 MJ 551

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Disrespect & Insubordination Disrespect & Insubordination ExamplesExamples

“Sergeant, well, if you don’t like it, I’ll take you in the back room and fight you too” - Richardson, 6 CMR 88

[When read his Art. 31 rights] “Aw, man, I don’t have time to listen to this sh*t” - Lewis, 7 MJ 348

“If you have something to say, say it to my face.” - Barber, 8 MJ 153

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Disobedience of Superior Disobedience of Superior Commissioned OfficerCommissioned Officer

[Art. 90, UCMJ][Art. 90, UCMJ]

Accused received lawful command from a certain commissioned officer [“victim”]

“Victim” was superior commissioned officer of accused

Knowledge Accused willfully disobeyed

order

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Disobedience of Warrant, NCO or Disobedience of Warrant, NCO or Petty OfficerPetty Officer


Accused was enlisted or warrant officer Accused received lawful order from a warrant,

NCO or petty officer [“victim”] Knowledge Accused had duty to obey order Accused willfully disobeyed order

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Failure to Obey Other Lawful Failure to Obey Other Lawful Order or Regulation Order or Regulation


1. Lawful general orders or regulation– Lack of knowledge not a defense

2. Other lawful orders– Knowledge required– MPs, guards, and sentinels– Also policy orders from CO

3. Dereliction of duty imposed by:– Treaty, Statute, Regulation, Lawful order, SOP, or

custom of the service

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DisobedienceDisobedienceCommon ThemesCommon Themes

Lawfulness of orders presumed– You disobey a superior’s order at your peril

Order must relate to a military duty– accomplish a military mission or safeguard

or promote the morale and discipline

From someone with authority

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DisobedienceDisobedienceCommon ThemesCommon Themes

Ideally, an enforceable order is:– A positive command– Specific– Contains time for compliance

But something less will often do– Politely phrased orders are still orders– Lack of suspense implies immediate

compliance expected

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Lawful OrdersLawful Orders

Personal orders [Arts. 90 (Officer), 91(NCO), and 92 (MP, sentinel)– Knowledge of “victim’s” status must be proven– Can be proven by circumstantial evidence

“Impersonal” orders [Art. 92]– AR or general order (GO or GCMCA)– Accused’s lack of knowledge not a defense

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NCO DefinedNCO Defined

Army/Air Force– Corporal and higher (not Specialist)

Navy/Marines– All E-4 and higher

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18 U.S.C. section 111418 U.S.C. section 1114

Protection of officers/employees of US– Defines WHO is protected– Includes MPs and investigators (DoD also)

18 U.S.C. section 111– Anyone who “forcibly assaults, interferes, resists,

opposes, impedes or intimidates”– Refers to section 1114– 3 years, $5,000 fine

(Extraterritorial application)

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Apprehension & AuthorityApprehension & Authority

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ApprehensionApprehension

Civilian World = Arrest Military World = Apprehension

– Formal apprehension means “taking into custody”

– ONLY soldiers can be apprehended

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DetainDetain

Detain versus Custody:– Detain is more temporary in nature– Detain is any time you stop somebody– Detention can become “custody”

Civilians are “detained” Think “Terry Stop” when you think

detain – temporary

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CustodyCustody

Custody = 1. formal arrest; or 2. restraint on the freedom of movement of

the degree associated with a formal arrest.

Objective Test:– What a “reasonable person” would believe– Subjective belief of officer or suspect is

irrelevant.

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CUSTODY?CUSTODY?

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Who Can Apprehend?Who Can Apprehend?

1. MPs on duty (NO off-duty authority!!)

2. ALL Officers; Warrant; Petty; and NCOs

3. Civilian police (deserters)

4. Investigators, guards, and police appointed by proper authority and executing assigned duties

5. Federal law enforcement officers

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Who Can be Apprehended?Who Can be Apprehended?

SERVICEMEMBERS only!!

Civilians CANNOT!!

Can an Army MP apprehend an airman or a sailor?

Can an MP apprehend a superior?

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Special NotesSpecial Notes

KNOW YOUR LOCAL SOP!!! – Officer apprehensions– Civilian apprehensions

R.C.M. 302(d)– Notify soldier– Notify CDR ASAP– Use of Force

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When can you apprehend?When can you apprehend?

When you have PROBABLE CAUSE– UCMJ offense– UCMJ offender

CANNOT apprehend civilians– More to follow…

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Proof ContinuumProof Continuum100%

Probable Cause

Preponderance

Beyond a Reasonable Doubt98%

51%

30%

0%

Reasonable Suspicion

No Proof

20%

APPREHEND

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Probable Cause?Probable Cause?

You are the expert! What do you think?

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Probable Probable Cause?Cause?

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RegulationsRegulations

AR 190-30: MPI can apprehend

AR 195-2: CID can apprehend

AR 190-56: Federally employed civilians can apprehend

(RCM 302 applies to all these)

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Jurisdiction Over CiviliansJurisdiction Over Civilians

General rule is: – No UCMJ jurisdiction

UNLESS, in time of “declared war” and the civilian is accompanying the armed forces in the field

Does that mean we cannot control what civilians do when they are on-post?

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Civilians can be “DETAINED”– NOT arrested or apprehended– They are turned over to civilian

authorities ASAP Power to detain:

– Comes from “inherent authority” of the installation commander.

– You are an “agent” of installation commander when you are on duty

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Jurisdiction over CiviliansJurisdiction over Civilians

AR 190-30: civilians can be detained

AR 195-2: civilians can be held and turned over

AR 190-56: contract controls DA policeman’s power, they can detain also

Can apprehend soldiers off-post

Cannot apprehend civilians OFF-post unless helped by civilian police

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Citizen’s ArrestCitizen’s Arrest

AR 195-2: nothing prevents citizen’s arrest

AR 600-40: members of armed forces have ordinary rights of citizen’s arrest

BUT, remember:

– You MUST know state law

– You MUST not act in official capacity

– You are liable for your actions

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Summary Summary

CRIME + Soldier = Apprehend (anywhere)

CRIME + Civilian = Detain (ONLY on-post)

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Get it RIGHT!Get it RIGHT!

Using too much force or an otherwise bad apprehension can result in a “Get Out Of Jail Free Card.”

– NO PC for apprehension?NO evidence!

– Too much force?NO evidence.

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Review Review

PFC Chuckles is an MP and sees PVT Smith vandalize a car on post. Chuckles is just off-duty. Can Chuckles apprehend Smith?

SGT Norm sees the same incident, and he is off duty as well. Can he apprehend Smith?

SGT Norm and PFC Chuckles are both on duty and observe John Longhair smoking dope in his car in the housing area on post. Can they apprehend?

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Review Review

Can civilians be apprehended?

Who gives us the authority to detain civilians? What rank must that person be?

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MP Authority over CiviliansMP Authority over Civilians

Posse Comitatus Act:– The military cannot be used to directly

participate in civilian law enforcement.

– BUT, we can enforce federal criminal lawApplies to all persons on-post (if there is jurisdiction)Cases are tried in U.S. District and Magistrate Court

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Bar LettersBar Letters

CG can protect installation– 13 U.S.C. section 1382: Trespass

– If someone violates the order, they are guilty of trespass

– Also, 50 U.S.C. section 797:Gives power to CG to prevent entry and

protect equipment

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Types of JurisdictionTypes of Jurisdiction

Can civilians be tried for their on-post offenses?

Who tries them?

How do we decide?

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Types of JurisdictionTypes of Jurisdiction

Exclusive Federal - only federal law

Concurrent - both state & federal law

Proprietary - only state law

(every post is different; some are mixed)

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In United States:– Federal District Court or Magistrate Court– State Court

Outside United States:– Host Nation Law– Extraterritorial Statutes– Command Measures

(Status of Forces Agreement [SOFA])

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Federal &UCMJ

State

ForeignCountry

Double Jeopardy

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Federal LawFederal Law

Some federal laws apply nationwide:

– “Special maritime and territorial jurisdiction” 18 U.S.C. section 13: Makes state laws a

federal offense (assimilate)

Also includes several other offenses like arson, murder, assault, robbery, child porn, etc.

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Federal LawFederal Law

Some federal laws apply outside the US– Extraterritorial statutes (bribery,

counterfeit, fraud claims, murder federal officer, etc.)

– Many anti-terrorism laws– Extradition

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Magistrate CourtMagistrate Court

For installations with exclusive or concurrent jurisdiction

Can try misdemeanor offenses (less than 1 year max)

Assimilates state law in federal court DD Form 1805 (ticket) Soldiers and civilians are triable

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ReviewReview

If a civilian commits a crime on a post with concurrent jurisdiction, who can prosecute?– What if it’s proprietary jurisdiction?

Where do we try civilians for crimes committed on post:– For a misdemeanor?

– For a felony?

– What type of jurisdiction must a post have to try a civilian in magistrate court?

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UCMJ JurisdictionUCMJ Jurisdiction

For soldiers:– UCMJ jurisdiction applies

everywhere (Art. 5, UCMJ)

– ON-post / OFF-post / 24-7On the moonIn your roomUnder the polar ice capsAnywhere, if you are a soldier!!

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Article 2, UCMJ: Active Duty Cadet / midshipmen US Army Reserve on AD (orders) National Guard on AD (federalized) Retired members of the regular Armed

Forces Enemy Prisoners of War under US control

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Article 2, UCMJ: Receiving hospitalization from service Fleet Reserve/USMC Fleet Reserve Serving Court-martial sentences Civilians accompanying the force,

only in time of declared war

(Who can prosecute civilians?)

ContinuedContinuedUCMJ JurisdictionUCMJ Jurisdiction

ContinuedContinuedUCMJ JurisdictionUCMJ Jurisdiction

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Soldier about to ETS?Soldier about to ETS?

Can we keep the soldier for prosecution?– Yes, if investigation is started with a view

toward court martial;– Or, if charges have been preferred; – Or, soldier is apprehended, arrested, or

confined

(See AR 635-200 and RCM 202)

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Off-post crimesOff-post crimes

Service Member commits crime off-post: – CONUS: subject to local law & UCMJ– Overseas: subject to Host Nation law & UCMJ– Old “service-connection” test is dead

Civilian commits a crime off-post:– We DON’T care!! (unless there is service

connection)

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ReviewReview

Soldier is from Florida, he is stationed at Fort Irwin, CA, and he commits a crime while in leave in Cancun. Who can prosecute?

Civilian commits a crime on-post, who has jurisdiction?

Civilian commits a crime in Iraq while working for the Army, who has jurisdiction?

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ReviewReview

If you apprehend a soldier, that means you have what?

You learn that your AWOL soldier is hanging out just off post in the local town, can you go apprehend him?

Can a soldier be tried for the same crime twice?

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Posse Comitatus ActPosse Comitatus Act

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 execute the laws shall be fined under this title or imprisoned not more than two years, or both.

18 U.S.C. Section 1385

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General RuleGeneral Rule

Posse Comitatus Act:– The military cannot be used to directly

participate in civilian law enforcement– States control what happens within

their territories

– But…

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Exceptions to Posse ComitatusExceptions to Posse Comitatus

1. Off-duty

2. Reservist or National Guard who are NOT on federal status

3. Military Purpose Doctrine

4. Emergencies

5. Terrorism

6. Statutory Amendments

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Military Purpose DoctrineMilitary Purpose Doctrine

- The Installation Cdr has the power to operate and protect the installation where there is a military necessity.

- National Security

- Safety of the people and assets on it

- He passes it onto the MP’s.

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Enforcing the UCMJ - thus we can get to soldiers off post

Investigate actions likely to result in DOD admin actions, such as civilian labor issues

Protection of classified information Protect military-foreign affairs

Military Purpose ExamplesMilitary Purpose Examples

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Maintain order, discipline, and security of post

Drug dealer off post selling to on-post soldiers.

A group planning to disrupt the installation operations.

Hot Pursuit - but must be immediate, continuous and uninterrupted pursuit.

Military Purpose ExamplesMilitary Purpose Examples

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EmergenciesEmergencies

Purpose– To prevent loss of life– To restore government function– Local authorities unable

Natural disasters: FEMA controls Outside agency makes request, and we

receive orders and guidance

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Statutory ExceptionsStatutory Exceptions

Sharing information with local authorities Equipment and facilities Training and advice Air and sea traffic monitoring Humanitarian assistance:

– To save lives– Search and rescue– EOD

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Posse Comitatus is not…Posse Comitatus is not…

Sharing information with local authorities Going with local authorities to execute a

search warrant or to apprehend a civilian off-post

When off-post, civilians are in lead and we are not enforcing state law

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ReviewReview

What violates Posse Comitatus?

Can we share details about an investigation with local civilian police?

Can an installation commander order a civilian to remain off-post?

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Questions?Questions?

1 authority & jurisdiction cpt kennebeck, ja usamps, law division

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