Interpreting recent changes to the standing rules for the use of force

Army Lawyer, Nov, 2007 by Daniel J. Sennott

1. Deadly Force

The meaning and proper application of deadly force is the central issue in any set of RUF. (58) Soldiers operating in a domestic setting must know what constitutes deadly force and when they are justified in employing such force. If Soldiers are uncertain, or hesitate in responding to a deadly threat, they are risking their lives and the lives of their fellow Soldiers. (59) On the other hand, if they are too aggressive, they can compromise the mission and cause unnecessary injury or death. (60) In order for Soldiers and commanders to accurately balance these competing interests, SRUF must provide definitive guidance on the employment of deadly force. The current SRUF falls short of that requirement.

a. Format Changes

The use of deadly force paragraph changed both in format and content. The format modifications, although seemingly insignificant, do represent a potential change in the way Soldiers approach a "deadly force" analysis. Previous RUF required Soldiers to satisfy a mental checklist of considerations prior to applying deadly force. (61) Under that methodology, deadly force was authorized "only under conditions of extreme necessity." (62) In addition, the RUF required Soldiers to find all three of the following elements: (1) "Lesser means have been exhausted, are unavailable, or cannot be reasonably employed;" (2) "[t]he risk of death or serious bodily harm to innocent persons is not significantly increased by use;" and (3) "[t]he purpose of its use is one or more of the following:" self-defense and defense of others; to protect assets involving national security, or assets that are inherently dangerous to others; to prevent serious offenses against persons; to protect public health or safety; arrest or apprehension; and to prevent escape. (63) In comparison, the new SRUF simply states: "Deadly force is to be used only when all lesser means have failed or cannot reasonably be employed." (64) By changing the definition from a list of elements that must be satisfied prior to using deadly force to a mere caveat requiring Soldiers to use lesser means if reasonable, the definition of "deadly force" is decidedly more aggressive. (65) This format modification may cause Soldiers to change the way they approach use of force issues, prompting them to omit important considerations like necessity and risk to innocent bystanders.

b. Necessity

While the previous RUF stated: "Deadly force is justified only under conditions of extreme necessity," (66) the current SRUF provides only that "[d]eadly force is to be used only when all lesser means have failed or cannot reasonably be employed." (67) The "necessity" concept is central to any discussion of deadly force. (68) The FBI uses the following definition of necessity: "In evaluating the necessity to use deadly force, two factors are relevant: (1) The presence of an imminent danger to the agents or others, and (2) the absence of safe alternatives to the use of deadly force." (69) Furthermore, the Department of Justice's Commentary Regarding the Use of Deadly Force in Non-Custodial Situations (70) states: