Toren Mushovic

Toren Mushovic

Last week, Gov. Jared Polis activated the Colorado National Guard and Denver’s Mayor Hancock employed curfews.  After two months of COVID-19-related stay-at-home orders, Denver went back into lockdown.  These moves were triggered by violence in Denver, part of nationwide unrest spreading from George Floyd’s death — caused after a Minneapolis police officer held his knee on the man’s neck as he cried that he could not breathe.    

Currently, Colorado’s National Guard reports to the governor, deployed in a law enforcement function, and is unarmed, carrying only defensive weapons.  However, over the weekend, President Trump inserted himself into the National Guard discussion by tweeting:  “just spoke to [the Governor of Minnesota] and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts the shooting starts . . .”  Then on Monday afternoon during a teleconference with governors, Trump reportedly stated: “I wish we had an occupying force.”  After the teleconference, President Trump — speaking from the Rose Garden — declared if governors were unable to end the violence, he would send in the military “to do the job for them.”  

Are Americans ready for federal troops — regardless of which party controls Washington — to occupy our cities and use force on our citizens to quell disorder?  After months of state and local governments utilizing expanded authorities to essentially quarantine their citizens in response to COVID-19, the latest crisis begs the questions: 1) does the president have the authority to order a military response to domestic unrest, and 2) what are the military’s rules for use of force domestically — can the military use deadly force in response to looting?

Does the president have authority to use military force domestically? Yes, but it rarely has been utilized in U.S. history and is subject to both the Posse Comitatus Act and the Insurrection Act.  While the president is the commander-in-chief of the armed forces, this authority is constrained by Congress and the courts by the separation-of-powers doctrine established by the U.S. Constitution.

Congress limited the president’s authority to use active-duty military forces (so called “Title 10 forces”) for domestic law enforcement purposes in the Posse Comitatus Act by making it unlawful for the military to “execute the laws . . . except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.”  Thus, the president must point to a Posse Comitatus Act exception before deploying federal military forces or federalizing a state’s National Guard to respond to domestic unrest.

One such Posse Comitatus exception is the Insurrection Act, which authorizes federalizing the National Guard or ordering active-duty forces to put down civil disturbances subject to three key conditions.  First, after receiving a request for assistance from a governor or state legislature to “suppress [an] Insurrection” pursuant to 10 U.S.C. §251.  This provision was last invoked 28 years ago during the Los Angeles riots.  While current unrest is a rapidly developing situation, it is unclear whether any governor or state legislature will make such a request.  The next two provisions allow a president to act absent a request from a governor or state legislature.  First, when the president finds it necessary “to suppress an insurrection, domestic violence, unlawful combination or conspiracy.”  Second, the president may use military force when unrest impedes federal or state law.  But, no president has federalized National Guard forces or utilized active-duty forces domestically — absent a request from a governor or state legislature — since Presidents Eisenhower and Kennedy used these provisions to enforce civil-rights laws in the 1950s and 1960s.  This includes past unrest in Ferguson, Baltimore or after Hurricane Katrina.  Ultimately, presidents rarely invoke the Insurrection Act, limited to extraordinary circumstances.   

If active-duty forces or federalized National Guard units are deployed into American cities, are troops authorized to use force on looters? Not likely.  The military utilizes Standing Rules for Use of Force (“SRUF”), not Standing Rules of Engagement (“SROE”), when responding to civil unrest.  SROE govern military operations where either law enforcement and civil authorities are nonexistent or resistant to U.S. military presence (e.g., combat).  SRUF, conversely, govern law enforcement and self-defense missions allowing for domestic legal considerations such as search, seizure, arrest and detention.  Clearly, constitutional standards — such as the Fourth Amendment — apply during unrest on U.S. soil, and any government actions violating constitutional protections could jeopardize criminal prosecutions.  SRUF restricts force “to be used only as a last resort” and minimized as much as possible.  To be sure, deadly force is only utilized “after all lesser means have failed or cannot be reasonably employed.”  Lastly, SRUF imposes a reasonable requirement requiring force used to be “reasonable in intensity, duration and magnitude” to counter the treat.

While SRUF limits force to self-defense or protecting specific assets, such as national security assets or national critical infrastructure, shooting looters clearly violates the governing rules for the use of force on U.S. soil.     

Toren Mushovic, a health care attorney and chief operating and compliance officer of IMMUNOe Health & Research Centers in Centennial, also serves as a judge advocate for the United States Navy Reserves. The views expressed here are the author’s personal views and do not necessarily reflect those of the Department of Defense, the United States Navy, or any other department or agency of the United States Government.

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