Army Proposes Changes|to Use-of-Force Policy | Courthouse News Service
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Army Proposes Changes|to Use-of-Force Policy

(CN) - Civilian workers at U.S. military bases at home and overseas could use "deadly force" to protect "assets" and "critical infrastructure," under revised regulations proposed by the Department of the Army.

The revisions would be the first since 1983, and would implement a 2011 Department of Defense directive that authorizes a wide range of personnel to carry firearms.

"The DA [Department of the Army] proposes to revise its regulation concerning the carrying of firearms and use of force for law enforcement, security, counterintelligence, and protective services on DoD installations worldwide. It establishes uniform policy for the use of force by law enforcement and security personnel," according to the Dec. 11 document in the Federal Register.

The proposed rule raises the question of whether personnel, military or civilian, who carry weapons during investigations that carry them outside domestic military installations would have the authority to use nonlethal or deadly force against American citizens they deem to be a "threat."

The Department of Defense did not provide a spokesperson to answer that question on Friday. It is not unusual for the Pentagon to take weeks or months to provide a spokesperson to answer such questions.

The executive director of Duke University's Center on Law, Ethics and National Security, Maj. Gen. Charles Dunlap Jr. USAF (Ret.), told Courthouse News that he sees the need for arming personnel in the current political climate, but that it could lead to disaster.

"Conceptually, the need to arm certain members of the Army and others is understandable these days, especially given the nature of the threats, to include 'insider threats.' That said, the devil is in the details, and absent a very prudent exercise of this authority, I can foresee that it could result in very unintended consequences. Almost inevitably, an excessive proliferation of firearms, even among the military, increases the chances of unintended discharges and even worse," Dunlap said.

However, Richard Rosen, the director of Texas Tech University School of Law's Center for Military Law & Policy, said the regulation does not propose significant changes.

"By its own terms, the Army's proposed rules do not substantially change existing policy," he said. "The rules do not change the class of those authorized to carry firearms."

Under the 1983 regulation, use of deadly force is justified for self-defense, the defense of others, to protect assets vital to national security, "national critical infrastructure" such as utilities, "other persons," "to arrest or apprehend when there is probable cause to believe a person has committed a serious offense," or poses a threat, or when a prisoner escapes.

The revisions update the section on "use of force," specifically the level of "intensity, duration and magnitude."

"DoD personnel will warn persons and give the opportunity to withdraw or cease threatening actions when the situation or circumstances permit," the proposed regulation states. "Additionally, this proposed rule updates the levels of force to include less-lethal force and presentation of deadly force."

The proposed regulation would require instruction on use of deadly force and annual refresher training. It updates the less-lethal section to include launched electrode stun devices, oleoresin capsicum spray (M39 Individual Riot Control Agent Dispenser) and the expandable or straight baton.

"Personnel may employ less-lethal force with the reasonable amount of force necessary to detain or effect a lawful arrest or apprehension of a resisting subject, or to otherwise accomplish the lawful performance of assigned duties," the regulation states.

"This proposed rule also fully implements applicable portions of Department of Defense Directive (DoDD) 5210.56 [the 2011 directive] ... which authorizes civilian officers and employees of the Department of Defense to carry firearms or other appropriate weapons while assigned investigative duties or such other duties as the Secretary of Defense may prescribe, under regulations to be prescribed by the Secretary."

The proposal states that armed personnel "shall be limited and controlled."

"Evaluation of the necessity to arm DoD personnel shall be made with the consideration of the possible consequences of accidental or indiscriminate use of those arms," the 2011 directive states. "However, the overriding factors in determining whether or not to arm are the mission and threat. Arming DoD personnel (i.e., administrative, assessment, or inspection, not regularly engaged in or directly supervising security or law enforcement activities) shall be limited to missions or threats and the immediate need to protect DoD assets or persons' lives."

The directive provides some guidance on who is eligible to carry weapons.

It states that personnel must be properly screened and cleared as "suitable" to carry a firearm based on an appropriate background investigation. Felons and people with a domestic violence misdemeanor are already prohibited from shipping, transporting, possessing or receiving firearms or ammunition under the 1968 Gun Control Act and the 1996 Lautenberg Amendment.

The 1983 regulation limits armed personnel, in large part, to military bases and to forces fighting on the "front lines." But increased terrorism worldwide has generated questions about why all military personnel are not allowed to carry firearms.

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