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

Army Lawyer, Nov, 2007 by Daniel J. Sennott

   Because '[t]he test of reasonableness under the Fourth Amendment is
   not capable of precise definition or mechanical application' ...,
   its proper application requires careful attention to the facts and
   circumstances of each particular case, including the severity of
   the crime at issue, whether the suspect poses an immediate threat
   to the safety of the officers or others, and whether he is actively
   resisting arrest or attempting to evade arrest by flight. (81)

The Court goes on to clarify this test even further, stating: "the question is 'whether the totality of the circumstances justifie[s] a particular sort of ... seizure." (82) Furthermore, as the Court in Garner makes clear, "[t]he intrusiveness of a seizure by means of deadly force is unmatched. The suspect's fundamental interest in his own life need not be elaborated upon." (83) As a result, in balancing the interests of the government with those of the individual, the court could determine that a law enforcement official failed to use lesser means of force in order to address the threat, even in cases where the right to self-defense was clearly implicated. (84) As such, the inclusion of "inherent right and obligation" instead of the previous "when reasonably necessary" language in the self-defense portion of SRUF may not comport with the more nuanced application of force in domestic operations. (85)

3. When Directly Related to the Assigned Mission

Another addition to the current SRUF acts as an ambiguous qualifier to the use of deadly force in certain circumstances. Under the current SRUF, "Deadly force is authorized in defense of non-DOD persons in the vicinity, when directly related to the assigned mission." (86) However, the previous RUF simply stated; "When deadly force reasonably appears to be necessary against a hostile person(s) to protect law enforcement or security personnel who reasonably believe themselves or others to be in imminent danger of death or serious bodily harm by the person(s)." (87) In addition, those provisions authorizing up to deadly force to prevent serious offenses against persons, to prevent escape, and aid in arrest or apprehension are all qualified by the same language: "Additionally, when directly related to the assigned mission, deadly force is authorized under the following circumstances...." (88) Once again, this language is new and no similar provision requiring a connection to an assigned mission is found in previous versions of RUF. (89)

The addition of this language has injected unnecessary ambiguity into the SRUF. First, no where in the SRUF or accompanying documents is a definition of "directly related to the assigned mission" found. Therefore, commanders and Soldiers at all levels will be forced to determine whether using force to protect a civilian who is being beaten to death falls under their assigned mission. Some might argue that this addition is a positive development because it allows commanders on the ground the flexibility to tailor the mission to the current security situation. So, for instance, if the commander's mission is to provide urgently needed security at a water purification site, the commander can limit the mission to that task, and inform the Soldiers that if they see civilian-on-civilian violence along the way, they should not stop, but report it through the headquarters to local law enforcement. On the other hand, the commander may elect to correlate the "assigned mission" to saving lives, alleviating human suffering, and mitigating great property damage. (90) However, this discretion comes at a heavy cost to commanders because the burden is on the commander (and the supporting JAs) to interpret the definition of assigned mission without any guidance from the SRUF. As a result, the application of this language will not be uniformly given the many meanings that can be assigned to this phrase.