National Guard Regulation 500-5/Air National Guard Instruction 10-208
- 61 pages
- August 18, 2010
a. Consolidate the policy and responsibilities for National Guard law enforcement support and mission assurance operations.
b. Define consistent terminology and concepts for use by the National Guard Bureau and the National Guard of the several states for the planning and conduct of domestic law enforcement support and mission assurance operations.
c. Provide direction for the planning and reporting requirements for National Guard domestic law enforcement support and mission assurance operations.
d. Define National Guard capabilities for domestic law enforcement support and mission assurance operations.
4-4. Rules of Engagement and Rules for the Use of Force (ROE/RUF)
a. Rules of engagement generally do not apply to National Guard forces conducting domestic law enforcement support missions. National Guard forces follow rules for the use of force instead.
b. Use of force by members of the National Guard serving in state active duty status or under Title 32 will be governed by state law, usually criminal law. Rules for the use of force will be developed by a state staff judge advocate in accordance with state law. RUF will vary from state-to-state because each state has a unique constitution, laws, and legal opinions on the use of force and how it is to be used. Most rules for the use of force by Title 10 federal forces are based on DOD and Chairman, Joint Chiefs of Staff promulgations which do not apply to National Guard forces serving in a state status during a National Guard domestic law enforcement support operation.
c. States that provide National Guard forces serving in state active duty or Title 32 status to another state normally will adopt the rules for the use of force of the supported state while deployed to the supported state. Before deployment, states involved will normally negotiate an agreement on which rules for the use of force the supporting units and forces will follow.
d. Appearing below are subjects to consider when drafting state RUF for National Guard law enforcement, law enforcement support, or security missions conducted in state active duty or Title 32 status. They are not directive or regulatory by this National Guard Regulation. Consult the state staff judge advocate for the rules for the use of force applicable to your specific National Guard support to civil law enforcement mission. DOD policy and guidance is summarized below to provide a basic understanding of the use of force.
(1) The right of self defense. Military forces have the right of self defense.
(2) The use of force must be restricted to the minimum degree consistent with mission requirements. The use of deadly force can be justified only by extreme necessity. Use criteria will be established by the state staff judge advocate.
(3) The level of force.
(4) Force options such as the use of face shields, vests, batons, nonlethal weapons, and arming personnel; and instructions on the use of the bayonet, weapons, and automatic firing.
(5) Arming orders.
(6) Apprehension and detention.
(7) Pre-commitment briefing to all personnel covering essential information such as the mission, rules for the use of force, procedures governing the accountability and security of weapons, ammunition, and sensitive items; use of weapons and control of ammunition; special orders.
e. Failure to comply with the rules for the use of force may result in criminal prosecution.
f. Failure to provide rules for the use of force or train National Guard members in the rules for the use of force may result in civil or criminal personal liability for commanders at all echelons resulting from subordinates’ unlawful acts, negligence or failure to comply with statutory guidance.
g. The force continuum. National Guard forces conducting domestic law enforcement support must use the minimum amount of force necessary to obtain compliance with lawful orders. Military personnel are always authorized and expected to use necessary force proportional to the threat, in self-defense and defense of others. In order to determine the appropriate amount of force to use, Soldiers and Airmen must be familiar with the tactics, techniques and procedures associated with the six phases of the force continuum listed below. The levels of force are designed to correspond to the actions of the subject(s) and the National Guard member’s perceptions of the level of threat with which they are confronted. The use of force continuum describes the progression or de-escalation of force on the basis of the demonstrated level of compliance or resistance from a subject. The force continuum is not a ladder requiring each level to be achieved in sequence. A National Guard member providing law enforcement support may enter the force continuum at any level. The six broad levels are as follows:
(1) Level One – Officer Presence. The mere presence of uniformed law enforcement or National Guard personnel is often enough to stop or prevent most situations from escalating. At this level gestures by National Guard members should be non-threatening and professional. This level of force is always the best way to resolve any situation if possible.
(2) Level Two – Verbal Persuasion. Used in combination with a visible presence, the use of the voice can usually achieve the desired results. Whether the instruction is to, “Stop”, “Don’t Move”, “Be quiet”, “Listen to me”, or, “Let me see your ID” — voice commands in conjunction with mere presence will almost always resolve the situation. The content of the message is as important as demeanor. It is always best to start out calm, but firm and non-threatening. The choice of words and intensity can be increased as necessary, or used in short commands in more serious situations. The right combination of words in combination with presence can de-escalate a tense situation and prevent the need for a physical altercation.
(3) Level Three – Empty Hand Control (unarmed defense techniques). Certain situations will arise where words alone will not reduce the aggression. At this point, National Guard personnel will need to get involved physically. This level of control is employed minus the aid of equipment or weapons. There are two subcategories called, “soft empty hand techniques” and “hard empty hand techniques.”
(a) Soft empty hand techniques. This level of minimal force involves the use of bare hands to guide, hold, and restrain — applying pressure points, and take down techniques that have a minimal chance of injury.
(b) Hard empty hand techniques. At this level the use of force includes kicks, punches or other striking techniques to key motor points that have a moderate chance of injury.
(4) Level Four – Chemical Agents. When the suspect is violent or threatening, more extreme, but nonlethal measures must be used to bring the suspect under control, or affect an arrest. Before moving to this level of force, less physical measures should have been tried or deemed inappropriate. When used by surprise, pepper spray and tear gas are an excellent distraction, allowing National Guard personnel time to call for assistance or subdue a suspect.
(5) Level Five – Temporary Incapacitation. To use force at this level means that the situation was so extreme, violent, and immediate that it was necessary to temporarily incapacitate a suspect prior to arrival of the police. Temporary incapacitation is used to stop a suspect from injuring you or others long enough to restrain and handcuff them. Batons and Tasers may be used at this level to temporarily incapacitate a combative person.
(6) Level Six – Deadly Force. National Guard forces may use deadly force when it can be justified by extreme necessity. Deadly force is force that a person uses causing, or that a person knows or should know would create a substantial risk of causing, death or serious bodily harm. There are four requirements for the use of deadly force:
(a) Lesser means of force have been exhausted or are unavailable.
(b) The subject must have the ability to cause you or another serious bodily harm or death.
(c) You or another must be in imminent danger of serious bodily harm or death.
(d) Its use should not significantly increase the risk of death or serious bodily harm to innocent bystanders.
National Guard Domestic Law Enforcement Operations
a. Located in over 3,000 local communities throughout the nation, readily accessible, routinely exercised with local first responders, and experienced in supporting neighboring communities, the National Guard is particularly well suited for domestic law enforcement support missions.
b. The National Guard of the several states possess the ability to conduct an extensive array of missions in support of domestic law enforcement operations. Providing such support is in keeping with DOD policy to cooperate with civilian law enforcement officials to the extent practical. However, the National Guard’s cooperation is tempered by the desire to maintain the historic tradition of limiting direct military involvement in civilian law enforcement activities.
c. This regulation, along with others in the NGR 500-series regulations establish the requirements and defines the standards for National Guard support to domestic law enforcement operations. This ensures consistency and commonality within the National Guard, and enables interoperability when National Guard units and forces conduct domestic law enforcement operations outside their respective state or territorial borders.
5-2. Support to Domestic Law Enforcement
a. National Guard support to domestic law enforcement operations is tailorable and permits a rapid response to local, state and federal requirements. The missions are unique, yet work harmoniously in deterring criminal activity, responding to incidents, and protecting both military and civilian entities.
b. The National Guard in a law enforcement support role conducts myriad operations that include:
(1) Providing liaison teams with local, state, and federal law enforcement agencies
(2) Traffic enforcement and other route control measures
(3) Providing a visible deterrent by conducting area security, site security, and perimeter security
(4) Access, traffic and crowd control
(5) Convoy security
(6) High risk personnel security
c. When approved by the Governor, National Guard units operating in a state active duty or Title 32 status may provide National Guard law enforcement support to include direct participation in civil law enforcement activities such as searches, seizures and detention.
d. Deputizing National Guard Members. Criteria for the deputizing of National Guard members operating in a state status (state active duty or Title 32) in support of domestic law enforcement are defined by the laws, policies, directives and executive orders that govern the specific state in which operations will be conducted.
e. Criminal Investigations. Upon state approval, National Guard law enforcement units can investigate offenses against National Guard forces or property. Additionally they can assist federal, state and local law enforcement agencies with criminal investigations having a military interest. Some states possess Army National Guard Criminal Investigation Command units capable of assisting in the investigation of major incidents.
5-3. Civil Disturbance Support Operations
a. The protection of life, property, and the maintenance of law and order within the territorial jurisdiction of any state is the primary responsibility of civil authorities. National Guard forces have primary responsibility for providing military assistance to state and local government agencies in civil disturbances.
(1) When domestic unrest is beyond the capability of state and local law enforcement, a Governor may direct the involvement of the National Guard in augmenting state and/or local law enforcement agencies (LEA) in restoring public order or governmental functioning, preventing the loss of life or wanton destruction of property, or enforcing state law.
(2) National Guard forces may also be ordered into federal service to suppress insurrections, rebellions, and domestic violence.
(3) National Guard assistance is provided in support of civil authorities, not to replace civil authority.
(4) National Guard Reaction Forces may serve as the initial National Guard response for civil disturbance and crowd management operations during the first critical hours following an incident. See Chapter 7-1 for further details.
(5) The National Guard civil disturbance support mission is a joint ANG and ARNG responsibility.
b. National Guard forces may initially deploy in a state active duty status. In doing so, they are not subject to the restrictions of the Posse Comitatus Act (see Appendix D for further discussion). National Guard forces remain under the command of state NG officers. Their assigned missions are coordinated with civil authorities.
c. The Adjutants General of the several states have the authority to use the federal property issued to the National Guard of their state or territory during periods of civil disturbance declared by their Governor. The state however may be responsible for reimbursement for the use of the federal property.
d. National Guard civil disturbance preparations focus on ensuring the ability to assist in the dispersal of those obstructing the enforcement of law and public order. Civil disturbance support operations may take place under various conditions and circumstances. Therefore, considering the potential consequences, planning and preparedness (to include training exercises) are paramount to success. Complete preparedness includes obtaining, maintaining, and training on nonstandard equipment and material unique to civil disturbance operations.
(1) Each of the several states will develop their own civil disturbance training and assessment plan. At a minimum the plan will include training on:
(a) Apprehension, search and detention
(b) Civil disturbance formations
(c) Media relations
(d) Nonlethal capabilities sets (see paragraph 7-3 for further discussion)
(e) Riot shield and riot baton techniques
(f) Use of force
(2) Units assigned a civil disturbance mission will conduct training annually in inactive duty training status. Such training will be resourced from the units’ annual allocation of inactive duty training periods. Each state will issue guidance regarding initial and annual refresher training requirements.
(3) Use Army Field Manual 3-19.15 as a guide to develop training.
(4) Only National Guard personnel who have completed civil disturbance training may directly participate in civil disturbance operations. This includes training on specialized equipment. Those who have not received civil disturbance training may only be used in a support role.
(5) All members authorized to carry firearms must have received training, achieved service qualification standards, and possess a current qualification testing on the type of firearm to be carried.
f. The apprehension of civilians during civil disturbance operations is best left to civilian law enforcement to the maximum extent possible. If the apprehension of civilian personnel is necessary, National Guard forces will do so in accordance with guidelines established by the state attorney general in accordance with state law.
g. In their support to civil disturbance operations, National Guard forces may provide supplies, services, and equipment for use in the preservation of life and property to LEAs.
h. National Guard support to LEAs should terminate as soon as possible after the situation is within the capabilities of state and local law enforcement. National Guard support termination decisions are made by the Governor or his designated representative.