of the PCA, civilian leaders, working in conjunction with their military
counterparts, should consider certain factors.
The PCA applies to
active duty personnel in the Army, Air Force,7 Navy and Marines;8
armed forces reservists on active duty, active duty for training, or
inactive duty for training;
National Guard personnel in federal service (Title 10 status); and
civilian employees of the Department of Defense (DoD) when under direct
command and control of a military officer.9
The PCA does not apply to
members of a military service when off duty and acting in a private
capacity. (Members are not acting in a private capacity when assistance to
law enforcement officials is rendered under the direction or control of DoD
authorities;10)
members of the National Guard when not in federal service;
members of a reserve component when not on active duty, active duty
for training, or inactive duty for training; and
members of the Coast Guard during peacetime.11 (Hence, the requirement
for the U.S. Navy in the performance of its counterdrug missions to have Coast
Guard law enforcement detachments board suspect vessels and effect arrests.12)
If it is determined that the PCA applies to the category of military unit
providing support to a law enforcement agency, the next issue is to understand
the limitations on the type and circumstance of the mission. In other words,
what military operations are covered or proscribed by the PCA?
What PCA and DoD Implementation Regulations Proscribe
PCA and DoD implemention regulations proscribe direct law enforcement assistance,
including
interdiction of a vehicle, vessel, aircraft, or other similar activity;
a search or seizure;
an arrest, apprehension, stop and frisk, or similar activity; and
use of military personnel for surveillance or pursuit of individuals,
or as undercover agents, informants, investigators, or interrogators.13
There are three separate tests that courts apply to determine whether the
use of military personnel has violated the PCA. The first test is whether
the action of the military personnel is active or passive.14
An example of active participation is a military member assuming an undercover
role or effecting an arrest. Passive participation is exemplified by the
militarys conduct of area surveillance or the providing of transportation
or training. The more active the military members participation becomes,
the more likely such participation violates the PCA. The second test is whether
use of the armed forces pervades the activities of civilian law enforcement
officials. 15 In other words, are the military members expected to perform
traditional police investigative or enforcement roles? If so, then the PCA
may preclude such activity. The final analysis is whether military personnel
subject citizens to the exercise of military power that is regulatory, proscriptive,
or compulsory (a power compulsory in nature is one that exerts some coercive
force).16 For instance, if the use of the military would subject civilians
to military judicial and administrative sanctions, such use probably violates
the PCA.
When the PCA Does Not Apply
The PCA does not apply when actions further a military or foreign affairs
function of the United States. This sometimes is known as the Military
Purpose Doctrine. The primary purpose must be to further the military
interest. The civilians may receive an incidental benefit. Such military purposes
include the following:
Investigations and other actions related to enforcement of the Uniform
Code of Military Justice (UCMJ).17
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