CLA-I&II: The Constitution, Law, and the Auxiliary Course

This document contains the course materials for the Constitution, Law, and the Auxiliary courses which are required for LCSA NCOs and Officers. NCOs are required to take CLA-I while officers are required to take both CLA-I and CLA-II.

As of January 2016, these course materials are being rewritten. The new CLA-I materials are now temporarily at:

CLA-I Coursebook
https://www.scribd.com/doc/295703701/Constitution-Law-Auxiliary-Coursebook
CLA-I Slides
https://www.scribd.com/doc/295703876/Constitution-Law-and-the-Auxiliary-Slides

The CLA-II material here is still the latest. As the new material is finished, these pages will be redone.

CLA-I Introduction to Law and the Auxiliary (obsolete)

The intent of this course is to cover the basics of the history/purpose of the Sheriff's office, property rights under the Constitution, our role as an auxiliary, and the legal issues surrounding intervention in situations we may face (i.e.: consent to treatment for first aid situations, MO law on intervention to prevent a violent felony, fcc regulations governing radio use in an emergency). It shall also cover the differences inherenent in the roles we may play (deputized, acting as a volunteer, acting in personal capacity). We will look at some historical cases where things may have been done right and some where they were done wrong and discuss them.
Passing shall (eventually) require a multiple choice test and one or more short essay questions. This page and its subpages will grow into a course outline and study guide. Because this course is taken at different depths for NCOs and officers, the outline will need to be developed with that in mind.

History of the Sheriff's Office

  • The "Constitutional Sheriff" is not in the Constitution! The Office of Sheriff comes from Common Law (Edwin the Elder, 902 AD), from County Charters, and from some state Constitutions
  • "Sheriff", comes from "Shire Reeve": an official responsible for keeping the peace on behalf of the King[bib]158[/bib]
    • In common law, "Conservators of the Peace" include the judges, sheriff, police, and constables (note Delaware dispute)
    • In US, Sheriff's elected rather than appointed by the King
    • The highest elected law enforcement officer (often the only); except St. Louis County, MO
    • Deputies or "Sheriff's Officers" are commissioned by and act on behalf of Sheriff
    • Originally, Sheriffs "held court" to try local offenses; this went away with the development of the medieval Circuit Court system, split into Sheriff, Magistrate, and the first jury trials
  • Sheriff is an "office", not a "department"; answers directly to the citizenry

The Development of the Constitution

  • Frame the history of the debate over personal and civil defense
  • British Common Law and Bill of Rights
  • Declaration of Independence and Revolution
  • Constitution

Further Reading List:

  • Declaration of Independence
  • US Constitution
  • Missouri Constitution
  • "That Every Man Be Armed: The Evolution of a Constitutional Right" Stephen P. Halbrook The Independant Institute, 1984, 1994, 2000
  • "The Law" Frederik Bastiat circa 1850
  • The Federalist Papers (and Anti-Federalist papers)
  • "Ratification: The People Debate the Constitution, 1787-1788" Pauline Maier, Simon and Schuster, New York 2010
  • "Commentaries on the Laws of England" Sir William Blackstone, circa 1765

Approach to reading:

  • Don't accept any author as authoritative!
  • Frame the arguments in the context of longstanding debate over Rights, Duties, and Authority.
  • When someone claims authority, where does it come from?
  • When someone has a Right, what does it mean?
  • Who do you owe Duties to?
  • How do we balance liberty and civility? Is it really a "balance"?
  • What is nature of crime and punishment?
  • I select quotes often because they are the most conservative: define edges of debate.

Debate Over the Right/Duty of the Polity to Bear Arms For Personal and Civil Defense

 The whole constitutional set-up is intended to be neither democracy nor oligarchy but midway between the two--- what is sometimes called 'polity', *the members of which are those who bear arms*. [emphasis in original] ---Aristotle, "Politics"

  • Aristotle refutes Plato's contention that the State ought control all use of arms in order to control the populace;
  • Not new: debate spans thousands of years;
  • We take from English tradition;
    • Roman law, 12-tables
    • Dane-Law est. militia, traditional rights, and representative gov't (Fyrd->Wycan->Moots: we'll get to it);
    • Norman invasion created absolute authority of monarch; took time to recover;
    • Magna Carta (1215)

And yet in some cases a man may not only use force and arms, but assemble company also. As may assemble his friends and neighbors, to keep his house against those that come to rob, or kill him, or to offer him violence in it, and is by construction excepted out of this Act; and the Sheriff, etc. ought not to deal with him upon this Act; for a man's house is his Castle, and domus sua cuique est tutissimum refugium (a person's own house is his ultimate refuge). And in this sense it is truly said, Armaque in Amatos sumere jura sinunt (and the laws permit the taking up of arms against armed persons). ---Sir Edward Coke's "Institute of the Laws of England" (1628)

  • Note "Castle Doctrine";

No wearing of arms is within the meaning of the statute unless it be accompanied with such circumstances as are apt to terrify the people; from when it seems clearly to follow, that persons of quality are in no danger of offending against this statute by wearing common weapons... --- "Treatise of the Pleas of the Crown", William Hawkins;

  • 1686 court case which affirmed defendant's right to go armed with a pistol despite the Statute of Northhampton (1328) when not armed "in affray of peace". "In terrorem populi",  "armed to the fear of the people" often quoted in US statute and case law.
  • After passage of English game laws in 1706, Rex v. Gardner held law did "not extend to prohibit a man from keeping a gun for necessary defense, but only for *making forbidden use of it*" [emphasis mine]

British Common Law and English Bill of Rights (1689)

  • British Bill of Rights (1689)
    • Attempt to disarm protestants --- presented to William and Mary
    • Claimed to 'restore' ancient rights; did not create anything;
    • Inspired US Bill of Rights; included:
      • No royal interference with the rule of law
      • "grants and promises of fines or forfeitures" before conviction are void
      • no excessive bail or "cruel and unusual" punishments may be imposed
      • Citizens have a right to bear arms because citizens have a duty to bear arms and serve the common defense (Locke)

Blackstone's "Commentaries on The Laws of England" (1765) re the British Bill of Rights of 1689 :

But in vain would these rights [e.g. free speech] be declared, ascertained, and protected by the dead letter of the law, if the constitution had provided no other method to secure their actual enjoyment. It has, therefore, established other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers, to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.

  • These principle rights should sound awfully familiar. A bit later:

And lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances, and, lastly, to the right of having and using arms for self-preservation and defense.

  • Practically a blueprint for Declaration of Independence;
    • Checks off Colonists attempts to address their grievances;
    • Turns to raising arms against the king as the final resort;
    • Exhausted all peaceful mechanisms;
    • Our system built to same plan:
  •  Armed resistance against tyranny is directly a purpose of RTKBA;
    • IF AND ONLY IF pursued at absolute and utter end of means.
    • Neither free license to insurrection nor was it paranoia;
    • Built directly on experiences of Colonists under England;
    • Enjoyed extensive legal protection of 'Constitutional rights' as British subjects which Crown trampled and ignored by "repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny."
  • Note: Blackstone a royalist: believed in monarchy and authority of kings
    • Locke, Payne, others rejected hereditary power
    • Took others to restore debate to republican context (e.g. Bastiat, "The Law", circa 1850)

Declaration of Independence and Revolution

  • Intolerable Acts:
    • Also problems with paper money and lack of specie ("hard money") in Colonies
    • Rights not from government:

      ...We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness...
      Declaration of Independence

    • "unalienable": Can't be taken away; can't be given away
    • "Natural Rights" but also Natural Duties:

      ...it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security...
      Declaration of Independence

  • Civil conflicts and the common citizen: the frying pan and the fire
    • Many citizens lost their homes, their farms, or their lives regardless of which side they declared to
    • Challenge is to survive and maintain local order in the face of upheaval
    • American Revolution 'succeeded' because Britain was a 'foreign power' which could be sent home
    • Colonial government transferred intact; many people patriated and forgiven (not all)
    • Revolutions where it is people vs. government seldom yield a stable system
    • Balance of powers and multi-level sovereignty (citizen/state/national) designed to prevent that occurence
    • Office of Sheriff directly serves the citizen; operates as speedbump; ensure process is followed
    • Sheriff/Auxiliary == Locals-In-the-Loop Law Enforcement
    • Romans 13
  • The Articles of Confederation and its failure
    • Articles set up a weak fraternity of states; little central power; direct war effort
    • First president: John Hanson
    • AoC failed to provide for common defense, government had no money (what it was empowered to collect was seldom remitted)
    • Insurrection in several states, inc. Mass.
    • Letters between Wash and Jefferson discussing its replacement ("Federalists" --- Of Equals)
    • Convention to amend AoC became Const Convention 1787
    • "Ratification--- the People Debate the Constitution, 1787-1788" by Pauline Maier

Constitution - "A Republic, if you can keep it."

 

  • The origin of the Bill of Rights
    • Delegate powers to a limited government
    • States still did not trust central government; required Bill of Rights like British of 1689
    • Rights not enumerated; powers are enumerated (9th and 10th)
    • 2nd Amendment echoed right and duty of British Bill of Rights
    • RTKBA individual right, serves civic duty
    • Strong property rights reinforced, including Takings Clause
  • The Missouri Constitution and its protections
    • US Constitution guaranteed a "republican form of government"
    • Article II, Section 8 echoes RTKBA but without civic focus
    • Many other property rights issues follow US Const. BoR
    • Missouri Consitution available from Secretary of State website or bound copy from SoS
      • Very different from US Constitution, much more complex;

 

The Sheriff under the Law

  • Only mention in US/State Constitution is MO Constitution Article V Sec 27 4(b):

    b. Upon the effective date of this article, the office of constable serving magistrate courts is abolished. The functions, powers and duties of such constables shall be transferred to and be performed by the sheriff of the county or the sheriff of the city of St. Louis.

  • Mo Constitution Article III, Sec. 40

    The general assembly shall not pass any local or special law:
    ...
    (21) creating offices, prescribing the powers and duties of officers in, or regulating the affairs of counties, cities, townships, election or school districts;

    • Also applies to municipalities
    • So state and cities may not interfere with the office of Sheriff (within his county and with reference to his county duties)
      • The sheriff is a county officer within the meaning of the constitutional provisions for county charters, and particularly §§ 18(b) and 18(e), Art VI, which means that in Chartered counties, the county charter may allocate the duties of the sheriff differently than the legislative statutes.  State ex rel. Shamble v. Gamble, 365 Mo. 215, 225, 280 S.W.2d 656, 1955 Mo. LEXIS 574 (Mo. 1955).  Charter County may also eliminate the office of Sheriff (as with St. Louis County) in its charter Mo Constitution Art VI Sec 18(b)
    • Independence from Federal Government:  The Federal government does not have the power to direct the office of the Sheriff.  “Residual state sovereignty was also implicit, of course, in the Constitution's conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, § 8, which implication was rendered express by the Tenth Amendment's  assertion that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Printz v. United States, 521 U.S. 898, 919 (U.S. 1997) “The Federal Government may not compel the States to enact or administer a federal regulatory program. The mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule.” Printz v. United States, 521 U.S. 898, 933 (U.S. 1997).
  • In MO, the voters of every county elect a sheriff every four years at each general election.  The sheriff takes office on the first day of January following the general election.  MO RS section 57.010
  • The qualifications, duties and restrictions on the office of sheriff are set forth in the Missouri Statutes (particularly chapter 57) and the Missouri Constitution.  Applicable rules may vary depending on the county classification.
    • Lawrence County, Missouri is a class 3 county, non-chartered.
  • Statutory Qualifications to be eligible for sheriff:
    • No person shall be eligible for the office of sheriff who has been convicted of a felony.
    • Such person shall be a resident taxpayer and elector of said county, shall have resided in said county for more than one whole year next before filing for said office and shall be a person capable of efficient law enforcement.   R.S.MO. 57.010
  • Sherriff needs to be a peace officer:  Beginning January 1, 2003, any sheriff who does not hold a valid peace officer license pursuant to chapter 590 shall refrain from personally executing any of the police powers of the office of sheriff, including but not limited to participation in the activities of arrest, detention, vehicular pursuit, search and interrogation. Nothing in this section shall prevent any sheriff from administering the execution of police powers through duly commissioned deputy sheriffs. (Upon election has a 12 month grace period to obtain peace officer license)
  • Peace Officer Licensing:   Licensing as a Peace Officer is regulated by the Missouri Post Commission.  The Commission is an eleven-member board representing the congressional districts of the state of Missouri. The Commission consists of three chiefs of police, three sheriffs, two peace officers at or below the rank of sergeant employed by a political subdivision, one licensed training center director, one representative of a state law enforcement agency and one public member. Each are appointed by the Governor for a three-year term. Each commissioner, at the time of appointment, shall be a citizen of the United States and a resident of Missouri for at least one year and no more than two members may reside in the same congressional district as any other at the time of their appointments. 
    •  
      General Requirements to be a Peace Officer:
      ·          twenty one (21) years of age
      ·         is a United States citizen
      ·         is the holder of a valid high school diploma or its equivalent
      ·         is a graduate of a Basic Law Enforcement Training Center
      ·         has passed the Missouri Peace Officer License Exam
      ·         has no criminal history as outlined in Section 590.080.1 and Section 590.100.1, RSMo.
       
  •  
    Bond:   Within 15 days of being sworn in, every sheriff must post a bond between $15,000 and $50,000 conditioned for the faithful discharge of his duties; which bond shall be filed in the office of the clerk of the circuit court of the county. § 57.020 R.S.Mo.
  • Deputies:  The sheriff in counties of the third and fourth classifications (includes Lawrence) shall be entitled to such number of deputies and assistants, to be appointed by such official, with the approval of a majority of the circuit judges of the circuit court, as such judges shall deem necessary for the prompt and proper discharge of such sheriff's duties relative to the enforcement of the criminal law of this state. Such judges of the circuit court, in their order permitting the sheriff to appoint deputies or assistants, shall fix the compensation of such deputies or assistants. The circuit judges shall annually review their order fixing the number and compensation of the deputies and assistants and in setting such number and compensation shall have due regard for the financial condition of the county. § 57.250 R.S.Mo.  
    • Deputies must be resident of the county.  § 57.117 R.S.Mo.  Every deputy sheriff shall possess all the powers and may perform any of the duties prescribed by law to be performed by the sheriff. § 57.270 R.S.Mo.
    • Nepotism Restriction:  Any public officer or employee in this state who by virtue of his office or employment names or appoints to public office or employment any relative within the fourth degree, by consanguinity or affinity, shall thereby forfeit his office or employment.  Mo. Const. Art. VII, § 6.  Sheriff who appointed his wife's uncle to the position of deputy sheriff with the approval of the circuit court was removed from office by the appellate court in a quo warranto proceeding for appointing a relative within the fourth degree of affinity. State ex rel. Roberts v. Buckley, 533 S.W.2d 551, 1976 Mo. LEXIS 316 (Mo. 1976).
    •  
      Emergency Appointments:  In any emergency the sheriff shall appoint sworn deputies, who are residents of the county, possessing all the qualifications of sheriff. The deputies shall serve not exceeding thirty days, and shall possess all the powers and perform all the duties of deputy sheriffs, with like responsibilities, and for their services shall receive two dollars per day, to be paid out of the county treasury.  § 57.119 R.S.Mo.

 
 

  • Duties:  Every sheriff shall quell and suppress assaults and batteries, riots, routs, affrays and insurrections; shall apprehend and commit to jail all felons and traitors, and execute all process directed to him by legal authority, including writs of replevin, attachments and final process issued by circuit and associate circuit judges.  § 57.100 R.S.Mo.  
  • Sheriffs in counties of the third and fourth class may:
  1. Regularly patrol and police all public roads and highways within the county;
  2. Enforce all laws designed to safeguard and protect these roads and highways;
  3. Report all dangerous conditions on these roads and highways to the county commission or other road or highway supervising body. § 57.115 R.S.Mo.
  • The Sheriff’s office also is charged with service of process in civil cases and collecting executions of judgments.  § 57.280 R.S.Mo.  
  • The Sheriff is also required to aid and assist the jury commissioners in the county by conducting all investigations into the identity of all prospective jurors summoned for jury duty by the jury commissioners, and upon request of the board of jury commissioners, make and file a report with the board setting out the results of the investigation.  § 57.395 R.S.Mo.
  • Every 3 months, the sheriff shall file with the circuit court of the county a report on the conditions of the county jail, the number of prisoners confined in said jail, together with recommendations relating to its operation.  § 57.102 R.S.Mo.
  • Whenever any sheriff or deputy sheriff of any county in this state is expressly requested, in each instance, by a sheriff of an adjoining county of this state to render assistance, such sheriff or deputy shall have the same powers of arrest in such county as he has in his own jurisdiction.  § 57.111 R.S.Mo.  (No Dukes of Hazard county line prohibitions if neighboring sheriff asks for assistance!)
  • Revised Statutes of Missouri (RsMO) Ch. 57 for Class 3 County; Lawrence County is Class 3
  • Mack/Prinz vs the United States (also George Bush vs State of Texas)
  • 42 USC (1983) - The Civil RIghts Act of 1871
  • Castle Rock v. Gonzalez

Models for the Auxiliary

  • Fyrd->Housecarls->Witan
    • Anglo-Saxon England; 7th century or earlier
    • The best of each household serve in the Fyrd
    • Limited length of time for service each season
    • Housecarls or "House Earls" served the Jarl or Earl; Deputies
    • Local people met in moots; elected representatives to annual Witans; determine succession
  • Zouaves, militias
    • Colonial militia was primarily civil defense with some emergency management duties
    • Zouaves were elite volunteer companies (Col Ephraim Ellesworth); special forces and SWAT teams of their day
  • Hospitalers, Knights of St. John of God, of Malta, of Jerusalem
    • Templars => convert by the sword
    • Hospitalers => convert through service and leadership
    • Defend the innocent and heal what may be healed (equal opportunity)
  • Red Cross - Henry Dunant (1859) --- help all injured on battlefield; no sides taken
  • Toward a modern Auxiliary
    • Flip 'militia' on its head
    • Serve the community first
    • Service without prejudice
    • Survival Skills Triad: First Aid, Communications, Defense
    • Build leaders in the community

Crisis Intervention

First Aid, Consent to Treatment, and Standard of Care

 

  • Obtaining consent
  • When consent is implied
  • Standard of Care and patient abandonment
  • Good Samaritan Law § 537.037 R.S.Mo.
    1.      Any physician or surgeon, registered professional nurse or licensed practical nurse licensed to practice in this state under the provisions of chapter 334 or 335, or licensed to practice under the equivalent laws of any other state and any person licensed as a mobile emergency medical technician under the provisions of chapter 190, may:
    (1)  In good faith render emergency care or assistance, without compensation, at the scene of an emergency or accident, and shall not be liable for any civil damages for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering such emergency care;
    (2)  In good faith render emergency care or assistance, without compensation, to any minor involved in an accident, or in competitive sports, or other emergency at the scene of an accident, without first obtaining the consent of the parent or guardian of the minor, and shall not be liable for any civil damages other than damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering the emergency care.
    2.      Any other person who has been trained to provide first aid in a standard recognized training program may, without compensation, render emergency care or assistance to the level for which he or she has been trained, at the scene of an emergency or accident, and shall not be liable for civil damages for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering such emergency care.
    3.      Any mental health professional, as defined in section 632.005, or qualified counselor, as defined in section 631.005, or any practicing medical, osteopathic, or chiropractic physician, or certified nurse practitioner, or physicians' assistant may in good faith render suicide prevention interventions at the scene of a threatened suicide and shall not be liable for any civil damages for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering such suicide prevention interventions.
    4.      Any other person may, without compensation, render suicide prevention interventions at the scene of a threatened suicide and shall not be liable for civil damages for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering such suicide prevention interventions.

 

Non-violent crisis intervention

 

  • Situational awareness - head off trouble early
  • What is the root of the problem?
  • Prevent the crisis from escalating
  • Keep your head, even when others do not
  • Avoid injury to yourself and others
  • Defusing the situation and resolving a crisis

Missouri law, self-defense, and prevention of a felony

 

  • Recap of CCW materials
    • [ibib]RsMo 571.030[/ibib]
    • [ibib]RsMo 571.101[/ibib]
    • [ibib]RsMo 571.107[/ibib]
  • Note 571.030 2. (1) exemptions for "...any person summoned by such [peace] officers to assist in making arrests or preserving the peace while actually engaged in assisting such officer;" [bib]RsMo 571.030[/bib]
  • Cooper Color Code for situational awareness
  • Discussion of intervening to prevent a violent felony against someone else (Loughner)
  • Castle Doctrine and where it applies
  • Who is the aggressor? (discuss Travan Martin and Rowe vs United States 164 U.S. 546 (1896))
  • When the response goes too far (Oklahoma pharmacy case)
  • Responsibility to secure a weapon
  • Reflections on the Auxiliary and the Sheriff's Office

Radios In an Emergency

 

  • Use of radios in an emergency (brief; to be expanded in Communications course)
    • In actual emergency: Any method to draw attention and get help

Balancing respect for property and emergency response

 

  • Know your neighbor to avoid conflict
  • Don't get shot by a nervous farmer...
  • When protecting life comes first... ask forgiveness later

Different Roles as Volunteers

  • Acting in personal capacity
  • As a volunteer, officially, under authority of Sheriff
  • As a volunteer under the Incident Command System
  • Deputized in an emergency
  • Other hats you may carry (e.g. ARES/RACES, EMS)
  • When stuff just happens

Brief Overview of Right to Bear Arms in MO

 

That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.---  Mo. Const. Art. I, § 23

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.---  U.S. Constitution, 2nd Amendment

  • Blackstone's "Commentaries" on the right of defense:

"...it is indeed, a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression... "

  • Division between harm to property, which the law can 'make whole' and
  • Threats to life and limb, which the law cannot repair;
  • Ability, Oportunity, Jeopardy - 3 factors defining lawful defense;
  • Vigilantism is extrajudicial violence: doesn't matter whether commited by State or individual;

 

  • State authority to regulate time, place, and manner (e.g. Heidbrink v. Swope)
  • Tension between Right and regulation;
  • Regulation may not effectively prohibit RTKBA or self-defense (e.g. Peruta vs. San Diego);

 

Tags: 

Broad LCS Auxiliary Policy Regarding the Bearing of Arms

The official policy of the LCS Auxiliary regarding armed citizenry is three-fold:

  1. It is our goal to encourage and facilitate the lawful bearing of or ready access to arms by trained individuals who are well-dispersed in the population. This policy flows directly from our mission to improve citizen response to emergencies and from citizen ownership of both civil defense and law enforcement. The word trained must take into account not just the mechanical skills but also the legal and ethical knowledge to understand when the use of violence is lawful, justified, and effective but should not imply a specific required training curriculum, training source, or narrow religious doctrine.
  2. We are required under our oaths of service to uphold the fundamental rights of citizens, including the Right To Keep and Bear Arms (RTKBA) as protected by the 2nd Amendment and Missouri Article I Section 23[2].
  3. Enforcement of laws prohibiting possession of firearms through legitimate due process (e.g. violent felons and adjudicated insane) is a legitimate purview of government, a common law and statutory responsibility of our served agency, the Lawrence County Sheriff's Office.

None of these policies is negotiable under our defined structure and purpose. Any public policies we support must be consistent with all of them. Within the constraints of these basic principles, there is still wide room for debate on the precise civil policies for supporting lawful bearing of arms. 

Selected Missouri Case Law

  1. Mo. Rev. Stat. § 571.030.1(5) represented a reasonable exercise of the legislative prerogative to preserve public safety by regulating the possession of firearms by intoxicated individuals; the alleged facts constituted a violation of § 571.030.1(5) and were within the power of legislative regulation under the police power. State v. Richard, 298 S.W.3d 529, 2009 Mo. LEXIS 531 (Mo. 2009).
  2. Court erred in denying a sheriff's motion to compel discovery in an action for a concealed firearm permit because discovery did not violate Mo. Const. art. I, § 23 by questioning the applicant's right to keep and bear arms. The applicant had a duty to cooperate in the investigation of his fitness to obtain a concealed firearm permit; the sheriff had a right to discovery and examination of the applicant at trial. Heidbrink v. Swope, 170 S.W.3d 13, 2005 Mo. App. LEXIS 715 (Mo. Ct. App. 2005), transfer denied by 2005 Mo. LEXIS 376 (Mo. Sept. 20, 2005).
  3. Missouri courts recognize that Mo. Const. art. I, § 23 does not deprive the legislature of the authority to regulate the time, place, and manner of bearing firearms. Heidbrink v. Swope, 170 S.W.3d 13, 2005 Mo. App. LEXIS 715 (Mo. Ct. App. 2005), transfer denied by 2005 Mo. LEXIS 376 (Mo. Sept. 20, 2005).
  4. Traditionally worded provision in Mo. Const. art. I, § 23 that the right to keep and bear arms shall not be questioned merely establishes that such right is beyond question. It in no way implies that an applicant for a firearm shall not be questioned. Heidbrink v. Swope, 170 S.W.3d 13, 2005 Mo. App. LEXIS 715 (Mo. Ct. App. 2005), transfer denied by 2005 Mo. LEXIS 376 (Mo. Sept. 20, 2005).
  5. Mo. Const. art. I, § 23 states that the existence of a right to keep and bear arms shall be beyond question; the provision does not suggest that the scope of the right can never be questioned. Missouri courts have held that the right is not absolute. Heidbrink v. Swope, 170 S.W.3d 13, 2005 Mo. App. LEXIS 715 (Mo. Ct. App. 2005), transfer denied by 2005 Mo. LEXIS 376 (Mo. Sept. 20, 2005).
  6. As the Missouri legislature chose not to substantially restore a felon's right to bear arms under Mo. Const. art. I, § 23, defendant's state felony convictions were proper predicates for 18 U.S.C. § 922(g)(1). United States v. Brown, 408 F.3d 1016, 2005 U.S. App. LEXIS 8059 (8th Cir. Mo. 2005).
  7. Finding that the Concealed-Carry Act was unconstitutional was improper pursuant to Mo. Const. art. I, § 23, where there was only a constitutional prohibition against invoking the right to keep and bear arms to justify the wearing of concealed weapons. Brooks v. State, 128 S.W.3d 844, 2004 Mo. LEXIS 26 (Mo. 2004).
  8. There is no constitutional prohibition against the wearing of concealed weapons; there is only a prohibition against invoking the right to keep and bear arms to justify the wearing of concealed weapons. Consequently, the general assembly, which has plenary power to enact legislation on any subject in the absence of a constitutional prohibition, has the final say in the use and regulation of concealed weapons. Accordingly, the Concealed-Carry Act, Mo. Rev. Stat. § 50.535, Mo. Rev. Stat. § 571.030, and former Mo. Rev. Stat. § 571.094 (now Mo. Rev. Stat. § 571.101), is not unconstitutional under Mo. Const. art. I, § 23. Brooks v. State, 128 S.W.3d 844, 2004 Mo. LEXIS 26 (Mo. 2004).
  9. City ordinance that prohibited possession of a lethal weapon was authorized by Mo. Rev. Stat. § 21.750 and did not contravene Mo. Const. art. I, § 23 because while the constitution declared that every citizen had the right to bear arms in defense of himself, there was no express or implied denial to the legislature of the right to enact laws in regard to the manner in which arms were borne. City of Cape Girardeau v. Joyce, 884 S.W.2d 33, 1994 Mo. App. LEXIS 1151 (Mo. Ct. App. 1994).
  10. Mo. Rev. Stat. § 571.030.1(5) represented a reasonable exercise of the legislative prerogative to preserve public safety by regulating the possession of firearms by intoxicated individuals; the alleged facts constituted a violation of § 571.030.1(5) and were within the power of legislative regulation under the police power. State v. Richard, 298 S.W.3d 529, 2009 Mo. LEXIS 531 (Mo. 2009).
  11. Mo. Rev. Stat. §§ 67.1830 to 67.1846 did not violate Mo. Const. art. I, § 23, because the title of the act sufficiently put a city on notice that the statute impacted regulations that dealt with municipal rights-of-way. XO Mo., Inc. v. City of Md. Heights, 256 F. Supp. 2d 976, 2003 U.S. Dist. LEXIS 8579 (E.D. Mo. 2003).

Citations and Resources

Citations used in this course along with resources for further study.

  • Constitution and the Founding Era
    • [ibib]MissouriConstitution[/ibib]; Also includes the text of the US Constitution.
    • [ibib]DeclarationofIndependence[/ibib]
    • [ibib]157[/ibib]
    • The Federalist Papers

 

CLA-II The Changing Role of Civilians in Civil Defense

The second part of this course series will expand on the introductory course by looking at how the need for civilians in civil defense roles has changed from early Colonial militias to a broader focus on emergency management. We will read historical accounts of civilians in emergencies from the 1700s to the modern day. The latter portion of this course shall focus on emergency management scenarios from commonplace to speculative fiction in order to stress our understanding of morality and law. While CLA-I is primarily instructional, CLA-II is seminar-style and focuses on discussion and role-playing.

Warning: This course deals with controversial and emotionally-charged topics. Emergency volunteers, by their nature, are employed in difficult, sometimes horrific, circumstances which probe at the edges of our social order. Disasters bring out the very best and very worst of people. This course aims to help prepare volunteers to deal frankly with these issues and act in a leadership role when other people may not be acting rationally.

Officers, Authority, and Chain-Of-Command

While the CLA-I course is required for all volunteers, this level is required for all commissioned officers. Let's start by defining "officer". Dictionary.com yields the following (selected definitions only):

  1. a person who holds a position of rank or authority in the army, navy, air force, or any similar organization especially one who holds a commission.
  1. a person appointed or elected to some position of responsibility or authority in the government, a corporation, a society, etc.

​Note the use of the word 'commission'. What is a commission?

  1. ​authority granted for a particular action or function.
  2. a document granting such authority.

​An officer in the Auxiliary is a volunteer who holds a 'commission'. This is more than a nice piece of paper signed by the Sheriff that you can frame: a commission grants authority for a particular action or function, and according to definition four of 'officer', this involves responsibility. An enlisted volunteer is 'enlisted' to assist the Sheriff carry out his responsibilities. An officer is commissioned to exercise authority and hold responsibility for the Sheriff. In other words, an officer is a leader within the realm of the tasks delegated to us by the Sheriff and a leader expected to be held accountable in turn to his or her superiors (the Sheriff, the County government, the people who elected that goverenment).
Under our system of government, an officer is a proxy for authority held by the people themselves. The people, as a nebulous collective, cannot exercise authority effectively; someone has to actually be on the spot to make the decisions that get things done. The people elect government, the government creates law and policies, and officers are appointed to support those laws and polices within the limits of their delegated authority. Officers, as needed, enlist additional assistance to discharge their office.
In order to be an effective officer, there are five things, therefore, that are crucial to know:

  • Source: What is the source of the delegated authority?
  • Responsibilities: What responsibilities constitute the office to be carried out?
  • Limits: What are the limits of your and your superior's authority?
  • Chain-Of-Command: What is the chain-of-command to determine who is in charge at any particular point in time?
  • Accountability: Through what mechanisms will you be held accountable to the people whose authority you have been entrusted with?

This section of the training will answer these five questions.
 

Source

An officer is always commissioned by an elected official or officials. The commissions of US military officers are recommended by the President (through the Secretary of Defense) and approved by Congress. In the Missouri National Guard, the legislature approves commissions recommended by or on behalf of the Governor. In the Auxiliary, the Sheriff is our elected official and must personally approve commissions because it is his authority which is being delegated on behalf of his constituents.
The Commander or the Chief of Staff recommends officer candidates to the Sheriff which have been vetted by our established procedures. Let's look at the standard format for officer recommendations:

In accordance with your request to organize a volunteer auxiliary under the Lawrence County Sheriff's Office, and in conjunction with the Mission Statement and Organizing Document of this date, the following list of officer candidates is submitted for approval.

...

I hereby solemnly affirm that these candidates are, to the best of my knowledge and belief: honorable citizens, exemplary members of the community, willing of faithful service, not judicially barred from service under arms, and shall be a credit to both the Office of Sheriff and the LCS Auxiliary; attesting on my own honor to the same.

 

Straight off, we see the source of our authority in recommending officers: the Sheriff has made a request to organize an auxiliary. The auxiliary was embodied in its organizing documents (which are periodically approved by the Sheriff), and, in accordance with those documents, we are submitting candidates for the Sheriff's approval.
The last part defines the character required of officers and follows a traditional format. The officers exist to fulfill an office, a "a position of authority, trust, or service, typically one of a public nature" (definition 5), given to the Sheriff by the people and delegated to us in turn. We discussed the origins and authority of the Office of the Sheriff in CLA-I.

Responsibilities

Our officers' commissions contain the following:

Know Ye, that reposing special trust and confidence in the patriotism, valor, fidelity and abilities of [Candidate], I do appoint him a [Rank] in the Lawrence County Sheriff's Auxiliary to rank as such from the [Date]. This Officer will therefore carefully and diligently discharge the duties of the office to which appointed by doing and performing all manner of things thereunto belonging.

So, our responsibilities are to carry out the orders of the Sheriff within the tasks appointed, which, from the previous quotes, we know to be 'in accordance with his request' to organize an auxiliary and defined by the Mission Statement and Organizing Document. "All manner of things thereunto belonging..." therefore includes:

  1. To perform routine tasks, such as neighborhood patrols, to free up deputies and funding where possible.
  2. To provide additional manpower in an emergency either by performing rear-area tasks, freeing up deputies, or by performing forward relief tasks and allowing deputies to concentrate on law-enforcement/investigation. (Examples: directing traffic, maintain checkpoints or barriers at an incident site, guarding equipment or facilities, assistance in search and rescue operations, providing for refugees, augmenting neighborhood patrols, etc)
  3. ... etc ...

 

Limits

All authority has limits. What are the limits of Auxiliary officers?

And this Officer is to observe and follow such orders and directives, from time to time, as may be given by me, or the future Lawrence County Sheriff, or other Superior Officers acting in accordance with the laws of the State of Missouri and Lawrence County.
This commission is to continue in force during the pleasure of the Lawrence County Sheriff for the time being, under the provisions of the organizational documents of the Auxiliary and the component thereof in which this appointment is made.

So, we have orders and directives of the Lawrence County Sheriff and of other Superior Officers who are in turn limited by the laws of the State of Missouri and Lawrence County. Any of these define the limits of an officer's authority. As discussed in CLA-I, the 'laws of the State of Missouri and Lawrence County' are themselves limited by the Constitutions (US and state) which define our system of government. All officers take an oath that 'I will support and defend the Constitution of the United States and that of the State of Missouri, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same...'.
It should be noted that the Sheriff is empowered by law to delegate all or part of his authority to others to carry out his duties. The Sheriff, in particular, is empowered to enforce law, investigate crimes, detain or arrest, to serve summons, and to execute the orders of the courts (liens, judgements, etc.). Deputies, by definition ("a person whose immediate superior is a senior figure within an organization and who is empowered to act as a substitute for this superior"), inherit all of his authority in these regards. According to our Organization Documents and according to Missouri law, officers of the Auxiliary do not receive these authorities. We are not Licensed Peace Officers (LPOs) and are not therefore empowered on our own to enforce law, to detain or arrest, to serve summons, or to execute the orders of the courts. We can assist the Sheriff or a Deputy (or potentially some other LPO) in doing these things, but we have no authority in these matters in and of ourselves unless and until deputized and then only temporarily within the confines of that emergency.
Even within these limits, an order from an officer, whether from an officer of the Auxiliary to a subordinate or from the superiors over the Auxiliary, namely the Sheriff and his Deputies, is void and without force if it does not comply with the law and with the Constitutions which underly the authority of the law itself. This limit directly conflicts with the concept of Chain-of-Command and intentionally so. We are not made to take an oath to serve the Sheriff and then let him sort out the Constitutional issues; the Constitution requires every officer of every kind to individually swear to uphold it.

United States v. Calley and Defense of Superior Orders

On 16 March 1968, a large number of unresisting Vietnames were herded into a ditch just outside Mai Lai and summarily executed by American soldiers. Lt. Calley received orders from a Cpt. Medina to execute Vietnamese civilians in the village and carried out these orders with respect to between 75 and 100 villagers. Calley was charged with murder, tried, and convicted. Lt. Calley defended his actions by stating that he was following orders of a superior officer and therefore was not responsible for his actions (and the actions of the men under his orders in turn).

The United States Court of Military Appeals heard the case and rejected Calley's defense, upholding the convictions for murder[United States v. Calley, 46 C.M.R. 1131 (1973)].

Lieutenant Calley's defense was that he was obeying the orders of his superior officer, Captain Medina. Because he was not free to disobey the orders, Calley maintained, he was not responsible for the Mai Lai massacre. He was therefore coerced into killing. Rejecting Calley's defense, the court ruled that every person must accept responsibility for killing. No one who obeys the order to kill can transfer responsibility. Despite the need for military discipline, which is admittedly great, the court held that officers must disobey clearly illegal orders, particularly when they lead to death.["Criminal Law, 5th Edition" by Joel Samaha, West Publishing, St. Paul, MN 1996 pp 253-254]

Tags: 

Chain-Of-Command

Again, from Dictionary.com:

a series of administrative or military ranks, positions, etc., in which each has direct authority over the one immediately below.

Because more than one person is given authority, there has to be some way to know who is in charge at any particular moment. Off the field, we may have the leisure to deliberate and work collaboratively; in the context of an emergency, we probably do not have that luxury: we may still collaborate and deliberate when and where we may, but someone has to make the decision and ensure that the whole structure focuses on the mission.
This is the purpose of ranks in the service and it is the purpose of uniforms, badges, ids, name-tags, etc.: they are emblems of authority. A uniform and particular insignia defines the kind of authority you have been delegated (you are an officer of the Lawrence County Sheriff's Auxiliary), the level of your authority within the hierarchy (your rank and insignia), and your level of training or specific authorities you have been tasked with (your service pins). Again, from our commission:

And I do strictly charge and require those Officers to render such obedience as is due an officer of this position. And this Officer is to observe and follow such orders and directives, from time to time, as may be given by me, or the future Lawrence County Sheriff, or other Superior Officers...

Within the Auxiliary, and within the Sheriff's Office, there is a clear ordering from top to bottom over who is in charge (well, mostly: we'll get to the exceptions). When we work with other agencies, say coordinating on a single incident response, we work under the principles of the Incident Command System (ICS) and unity of command:

The concept by which each person within an organization reports to one and only one designated person. The purpose of unity of command is to ensure unity of effort under one responsible commander for every objective.

and there is still (or should be) a clear hierarchy from the Incident Commander all the way down. Under the principles of ICS, rank and seniority do not define position within the response, so, for instance, a Major in the Auxiliary can be under the orders of a Corporal of police (and, indeed, that exact situation occurs when working under the Sheriff's Office as well) or a volunteer fireman, an EMT, or a rank-and-file CERT volunteer. What is important is that the Incident Commander assigns positions within the structure and each member of the team knows precisely who their superior is from their direct supervisor all the way up the chain-of-command. Teams work together to fulfill assigned objectives. Within self-contained units composed of Auxiliary volunteers, we will generally follow our usual rank structure (...except when we don't, but, again, we'll get to that).
Chain-of-command also defines legal responsibility. We not only need someone to make the decision, we need someone to take responsibility for that decision, and if necessary, someone whose feet get held to the fire if the decision goes wrong. One's position within the structure, and therefore, one's precise responsibilities can change throughout an emergency. In emergencies, as in military action, members of the chain-of-command can become injured or incapacitated. A defined chain-of-command determines who assumes authority and what authority they assume when their superior is suddenly not there. If a team-leader becomes incapacitated, the second-in-command takes charge. If the Communications Officer becomes injured, a specific subordinate will generally take over.

William Sitgreaves Cox and the USS Chesapeake

Under particularly dire circumstances--- and disasters are by definition dire--- a low-ranking officer can suddenly end up in an unexpected position. Take the situation of one William Sitgreaves Cox, who was a Temporary Third Lieutenant (the lowest of the low, below our Junior Grade Lieutenant) in charge of a gun crew on the USS Chesapeake during the War of 1812. In a battle with the HMS Shannon in 1813, every single one of his superiors up to and including the Captain was wounded and incapacitated. He left the deck to carry his wounded captain to the infirmary. At that moment, however, he was in command of the ship and did not know it. By taking Captain Lawrence below decks, he unintentionally abandoned his post. Confusion over command caused the ship to be captured by the British. Lt. Cox was tried, court-martialed, cashiered from the service and lived in disgrace. While this may seem harsh, it was Lieutenant Cox's responsibility to know the chain-of-command and to determine who was in charge before leaving his post. His error was simple but grave.

Patient Abandonment

We do not operate under the same circumstances as Lt. Cox, but we can end up in roughly analagous situations. One such has to do with patient abandonment. When a medical professional or responder (including an Auxiliary volunteer performing first aid or assisting in Search and Rescue) is caring for a victim, they may not simply abandon the patient without handing off responsibility to someone else. Abandonment can result in civil and sometimes criminal penalties. That means that a volunteer may not simply leave a victim and assume that someone is caring for them; responsibility must be clearly handed off. If you are assisting at a treatment area and a second disaster strikes, leaving your superiors incapacitated, it is your responsibility to determine who is in charge, to inform your new superior or to take responsibility yourself until relieved, requesting help if you are unable or unqualified to discharge your new duties.

Formalities of Command Transfer

This is one of the reasons for the formalities of transferring command. Because legal responsibility is involved with chain-of-command, when it changes, it must be formally recognized in some fashion. ICS requires that an incoming Incident Commander must be briefed by the current IC and that the transfer of command must be announced. This same form must be followed at other levels of supervision: when watches change, when an arriving EMT takes responsibility for a volunteer's victim, when a deputy arrives at the accident where you were first-on-scene, etc. If this is not observed, you are no longer in charge, but you may end up still being held responsible for what happens. Briefings may be written or oral as dictated by circumstances. Sometimes the formalities may be very short, including the traditional: "I relieve you, sir,"  "I stand relieved," but they must be observed in all circumstances.
For example, when handing over the care of a victim to an arriving doctor: "Doctor, your patient is Emily Jones, 36. She was injured when she was thrown clear of her car, has severe lacerations, contusions, and a probable head-neck injury. She has been breathing but not responsive, and her pupils are not dilating. We have immobilized her head and neck and stopped the bleeding. We found a Medic Alert bracelet and she is diabetic." This is a short, complete briefing and it also transfers responsibility with the words "your patient". You are making it clear that you are passing care for the victim to someone of greater skill and giving them the information they need to continue care.
You may end up in situations where you are forced to abandon a victim or a post. A good example would be when you hear the bug-out signal during search-and-rescue. At the start of the mission, you will be told that a specific signal (e.g. two long blasts on a whistle) means "get out now" because the area is unsafe. It may mean that a second tornado is coming through, that a structure is about to collapse, or a gas leak has been detected. You may be caring for a victim you cannot move, guarding a supply cache, or performing some other task for which you are legally responsible. Clearly, in that case, you must follow standing orders and abandon your post, possibly locking or securing as you go, however, you must immediately discharge your responsibility by reporting to your superior and you must clearly document the responsibilities you have abandoned (in activity log and debriefing).

For instance, you must immediately report the number, locations, and conditions of victims you have left behind or of critical equipment you have abandoned and obtain some acknowledgement of the fact. You may have received specific instructions in your mission briefing on how to handle evacuation or you may receive instructions when the evacuation is signaled, for example, to move victims who may be moved or to disable/destroy firearms left behind when abandoning a patrol car or field locker. If you do not have specific instructions or there is an unanticipated problem and you have the means to communicate, you must do what you can to clarify your responsibilities: "Zone-2 Command, we have a victim with a probable spinal injury which has not been immobilized. Do you wish us to move the victim, over?" Your superior will then make the call on whether to stay with the victim, take the time to immobilize, move the victim, or leave the victim temporarily.
As an officer, you have to deal with these situations where your orders-of-the-moment conflict with your assigned responsibilities. You have to get clarification if you can and make your best call if you cannot. But, as an officer, you also have to deal with the reciprocal situation of giving orders and assigning responsibilities to those under your command. That means that it is your job to ensure that your mission briefings or your evacuation orders give your subordinates the information they need to make the correct call (or, at least, 'the best call possible under the circumstances'). That is why we have five-paragraph op orders and ICS forms for team assignments, why we practice giving briefings: they give us a structure to ensure that our orders cover the issues they must cover to be carried out effectively, efficiently, and correctly. If you do not give team members instructions on what to do if they bug out, you are responsible for the actions they take under your orders.

Exceptions To the Chain-of-Command
We have mentioned several times that there are exceptions to the strict chain-of-command. These primarily deal with authority under certain defined specialities, such as medical practitioners, Master-Of-Arms, Law Enforcement Officers, and Safety Officers, etc. These are specialists who are given specific and overriding authority within their specialties. In specific cases, those specialties trump any other authority.
For example, the senior, most-experienced medical practioner present may assert authority over a medical issue. If the President of the United States comes down on an incident and tells you to move a patient, and the doctor standing there says, "this patient cannot be moved," then you defer to the doctor, even if the doctor is not your superior, until the situation is sorted out. When the Safety Officer tells your crew to stop activity, you stop, period. On issues of range or weapon safety, you defer to the Master-of-Arms or Range Master, regardless of rank or structure. Within the Auxiliary itself, these specialists may only be overruled on their specialty if their superior officer relieves them of duty and replaces them. If you are that superior officer, you may do so, if, for instance, you know that the patient is sitting on a ticking time bomb and that moving them is the better option even if it cripples them for life, but understand that your actions will be formally reviewed and you must be absolutely certain that you are making the right call. If you are the specialist in that circumstance, you have the same responsibility to only take a stand when it is absolutely necessary to do so and to explain why if circumstances permit. If circumstances allow it in any fashion, the specialist and the officer in charge must work together to come up with an agreeable solution ("OK, the Safety Officer says we can't continue working. Can we obtain appropriate protective equipment and come back? Can we get someone from HazMat to evaluate the risks? How far back do we have to set our perimiter?")
When you encounter conflicts and exercise authority, every effort must be taken to document it so that your decision can be evaluated after the fact. Why did you leave the victim behind in the building? When were you ordered to evacuate? By whom? One of the responsibilities of an officer is to make sure that paperwork is done and records are complete, delegating that task when necessary. Are you making sure that your teams have someone assigned to be a scribe? Have your teams been given appropriate forms? Have you debriefed team members and made sure that an activity log is submitted? Did everyone sign out of the incident before leaving? This is the less-glorious-but-still-important part of having a commission. If something goes wrong, those pieces of paper might be all that is available to try to sort out the problem: Lt. Smith hasn't been seen since yesterday; did they leave the incident without signing out... or are they still somewhere in the field, possibly incapacitated or dead? Suddenly that annoying piece of paper is very important.

Accountability

In the Auxiliary, accountability comes down to our reporting process (e.g. activity logs, quarterly reports, after-action reviews), and, when necessary, disciplinary procedures. For egregious violations, we may be subject to civil and criminal process. Volunteers in Missouri are protected from some kinds of civil liability ("Good Samaritan" Law) such as medical malpractice if:

  • We are not paid
  • We are providing emergency assistance
  • We are performing within the limits of what we were trained to do

This last bullet also places some responsibility on trainers. If civil or criminal liability becomes an issue, we will need to demonstrate what training a volunteer received. For example, if we can demonstrate that a volunteer was trained to perform CPR, the volunteer performed CPR, and the victim died despite that (as is not uncommon), then we should be able to get a civil action dismissed. However, the trainer may have to present documents, or appear in a hearing or trial to make that happen. The same goes for demonstrating, for instance, that you have received training in the nature and limits of an officer's authority. A court will go back to those training materials to determine the types of things that you were trained/authorized to do.

Good records are a key to accountability: it was not written down, it did not happen. This also places a responsibility on our radio operators and net controllers to ensure that radio activity is logged as well as possible because the volunteer in the field up to their neck in alligators may not be able to write down everything they should when they should.

The disciplinary process is described in the next section of this course.

Discipline and Offenses

This section will deal with the disciplinary process with the Auxiliary. For minor issues, we should avoid formal disciplinary process. We are a volunteer organization and all of us are here (or should be here) for service to the community and each other. That means we have a certain level of motivation for resolving conflicts and those who are not so motivated will leave the service of their own accord. However, we may occasionally have to deal with various types of issues including (in rough order of seriousness):

  • Personality conflicts and personal disputes
  • Clarification of lines of authority or responsibility/resolution of disputes between different sections or roles
  • Issues of potential harassment or hazing
  • "Conduct unbecoming"
  • Misuse of authority, of equipment or assets
  • Complaints from members of the public or other agencies
  • Review of official conduct such as use-of-force, or decisions made on the field
  • Accusations of criminal conduct related or not related to the Auxiliary

We may also end up participating in disciplinary process within the Sheriff's Office or other agencies (such as witnesses to an official review of the conduct of a deputy or other emergency responder we work with on the field, or participation in a civil or criminal case).

Informal Conflict Resolution

Approach minor conflicts in the following preference order:

  1. Approach someone privately and discreetly.
  2. Use an informal arbitrator or facilitator.
  3. Find a way to tactfully approach an issue in a hotwash or other semi-formal setting.
  4. Escalate the matter within the chain-of-command.

It is the responsibility of officers and NCOs to help guide this process. That's one of the reasons you exist. In many ways, especially in a new organization, some conflict is helpful, because it is in resolving conflicts that we will find holes in our process and establish new procedure for the future.

Volunteers without formal management training may find the following Independent Study courses from EMI helpful:

All three provide college/CEU credit and will work toward a FEMA Professional Development Series certification.

Approach privately

In minor matters and personality conflicts, the first step should be to try to resolve the matter informally between you and them. If, for instance, another volunteer does something which bothers you or you are having difficulty working with someone, if you have a problem with the way a procedure is being handled or believe that something is unfair, approach them privately and discuss the matter. We have to strike a balance between being patient and not letting conflicts fester.

There will always be personality conflicts, people will always have strengths and weaknesses, minor annoying habits, things we like about them and things we do not. When we can ignore such things without compromising the Service, we should simply do so. On the opposite side, in an organization where many of us may participate for years, anything which has the potential to simmer and grow has to be dealt with as gently as possible before it has a chance to do so. Finding that balance is not always easy, but if done correctly, most issues can be resolved this way. The object is to bring something to the other's attention, listen to their side, and provide a chance for something to be changed without embarrassment on either side.

When you should not approach privately

Skip this first step in any of the following cases:

  • The person's behavior makes you feel unsafe
  • There is a danger to life or property
  • On the field where an immediate solution is necessary: there is a time for discussion and a time for orders
  • An outside agency, community complaint, or financial matter is at the center of the issue
  • Criminal conduct is involved
  • Otherwise in any situation where there is a legal responsibility to document what is going on

If the matter is between a superior and a subordinate, it may be wise to note that the discussion occurred and any resolution or change in policy which resulted. This creates a later baseline to go back to if the matter is not resolved and further action needs to be taken. It also demonstrates that you did not ignore a matter brought to your attention.

Email is a convenient tool for private conflict resolution if it is used appropriately.

  • Email pros
    • Convenience, no meeting necessary
    • Creates record
  • Email cons
    • Doesn't convey tone or body language, so causes miscommunication frequently and can inflate conflict
    • Email is easy to copy, forward, and quote out of context; inflates conflict and spreads information which should be confidential
    • With Blind Carbon-Copy, you don't know who else is part of a conversation
    • Because it leaves a record, you can get skewered later for brainstorming or informal proposals that weren't good ideas

Because of the potential for mis-communication, take care in writing an email. You may write a draft, let it sit for a little bit, come back later and re-read it before deciding to send it. If you can, have someone else you trust (e.g. your spouse) read through it; they won't bring the same assumptions and may spot parts that are unclear or which may ruffle feathers. If you use your superior in chain-of-command to read through it, it can be a way to get their feedback and let them know of a matter in a way where they do not have to take official notice (use with care).

Often the best approach is to have the meeting one-on-one and then use an email to document the decision (in formal terms, referred to as a Memorandum of Understanding or MOU).

From our discussion at the library today, my understanding is that we will implement the following:

  1. All press releases will be approved by [X] and reviewed by at least one other person before submitting.
  2. In order to avoid confusion, all ads for future events, no matter who writes them, will be submitted to the LC Record by [X].
  3. If [X] is not available, call the Chief of Staff.

This technique allows the actual issue to be raised in a format which allows tone of voice and body language to come into play. What is documented is not the initial conflict (negative) but what is being done in the future (positive) and only the agreed alternatives need to be written, not ideas rejected along the way (unless it is specifically important to document why some option was rejected). It also gives the other party a chance to tell you if what they took away from the meeting is different from what you took away from it

Finding an arbitrator or facilitator

If the first step does not resolve the issue or it is not appropriate, the next step is to find one or more persons who can informally sit down with you and the person involved in the conflict. This can be a Chaplain or Chaplain's Assistant, for instance, or another volunteer who is neutral and impartial in the situation. The role of the facilitator is not to gang up on the other party but to help ensure that you are listening to each other, to bounce ideas off of, or to suggest alternatives neither of you have considered. The facilitator is also a witness that the situation is handled fairly. The facilitator can be a superior, but the superior has to keep in mind in that case that their role is not to judge (unless necessary) but to listen and prod the participants to come up with their own solutions. If neither side can or is willing to solve the problem, then the superior must impose one.

Lunch (coffee, whatever) is a good way to make the situation more friendly, less formal and let one side or the other save face.

Semi-formal settings such as a hotwash

A hotwash (informal debrief after an event where people brainstorm about what happened) can be a good way to de-fuse conflict if a comment is worded positively and not directed at a specific individual. Phrase constructively where you can by suggesting a change rather than harping on failure (e.g.: "Maybe we should schedule practice on vehicle caravans before the next deployment," rather than "So-and-so really screwed up the caravan thing and we had to make four u-turns.") The discussion tools in D4H for events, including the "lessons-learned" can be very useful for this as well.

Escalating within the chain of command

If none of the informal processes are working, the issue needs to be escalated within the chain of command: take the matter to your superior and let them sort it out. The superior should sit down with both parties to ensure that both sides are heard and that the resolution is fully understood. The Memorandum of Understanding technique or a formal order from the superior should be used to document the interaction and establish any new procedure needed. Many SOPs and SOGs will start their life in solving and documenting a problem.

Training and Exercise For Conflict Avoidance

The CERT Train-the-Trainer course emphasizes that trainers are the first line of defense in weeding out potential volunteers who do not have the appropriate mindset or who do not 'play well with others'. If a recruit is:

  • losing their temper,
  • letting ego get in the way, or
  • exhibiting attention-seeking behavior

in a team-building project (remember the marshmallow and spaghetti towers?), skills demonstration, or exercise, it is a good clue that they should not be invited in or that, at the least, their application may be best delayed until we see them in more training circumstances or can check references. Disaster deployment will be more stressful than training, likely to make bad behaviors worse, and the last thing we need is a loose warhead with a gun smearing the name of our organization or of the Sheriff's Office. When considering whether to accept an applicant, we must always go back to the criteria on the enlistment/commission recommendation forms and in a particular, "attesting on my own honor to the same": when you recommend a candidate, your honor is on the line.

Sheriff's Office Disciplinary Process

Auxiliary volunteers are considered to be members of the Sheriff's Office and are therefore subject to some of the same disciplinary procedures as reserve or full-time deputies. In general, the Sheriff may always elect to handle a disciplinary matter within the Sheriff's Office rather than within the Auxiliary, and this is particularly likely if either key staff officers are involved or enough key officers are witnesses to a matter that a fair disciplinary process within the Auxiliary is unlikely. In specific, however, there are two Sheriff's Office disciplinary procedures which will always apply to volunteers: immediate suspension for criminal charges and use-of-force review.

  • The Sheriff may always elect to handle discipline within the Sheriff's Office and will likely do so if:
    • Key officers of the Auxiliary are directly involved
    • Enough key officers are involved as witnesses or as part of an investigation that an appropriate number of officers cannot be obtained for judge or jury on a court-martial within the Auxiliary.
    • The matter is sufficiently grave that public interest requires the Sheriff to handle the matter directly.
  • The Sheriff's Office will always handle the following matters:
    • The Lawrence County Sheriff's Office has a policy that any member of the LCSO shall be suspended from duty when criminal charges are filed against them and shall remain suspended until the charges are dropped or the member is cleared. This policy applies to Auxiliary volunteers as well and may happen while other disciplinary processes are ongoing.
    • Use-of-Force reviews when an volunteer is involved in a physical altercation (on or off duty) and especially when deadly force is involved
    • When criminal charges result from actions taken on duty.

Use of Force Review

The Sheriff's Office has a policy requiring a Use-of-Force Review when a deputy is involved in the use of deadly force on or off duty. Auxiliary volunteers come under this policy and it does include the presentation of a weapon when it is not used (e.g. you draw your weapon and hold someone at gunpoint for the arrival of a peace officer). There is a less involved process for less-than-deadly force such as the use of pepper spray or stun gun. If the use-of-force is clear, such as dealing with an intruder in your home in the dead of night, the review process should be short and straight-forward. The public will associate any use of force by Auxiliary members with the Sheriff's Office, however, so the Sheriff always has a responsibility to look into the matter.

If you are involved in such a use-of-force, you should notify your superior in chain-of-command as soon as physically possible. If you are off duty, such as a defensive shooting, you should do the following:

  • Notify the appropriate law enforcement if you have not already
  • Notify the responding officer that you are a member of the Sheriff's Auxiliary, that you were off-duty, and that you will need to undergo a Use-Of-Force review
  • Request that you be allowed to contact your superior or the Sheriff's Office or that the responding officer contact the LCSO and notify the Sheriff of the situation
  • Request a copy of their report as soon as it is available and ensure that one is sent to the LCSA/LCSO
  • Contact your attorney. We may be able to provide a list of attorneys who have stated that they would be willing to work with use-of-force incidents.

The responding officer may very well take the weapon involved in the incident for examination. You should be able to get a receipt. The LCSA/LCSO will attempt to send an officer as soon as possible to advise you on the review process and take your statement. You may also request the services of an Auxiliary Chaplain at any time. If you are only given the 'one phone call' contact your attorney if you have one and have them contact the LCSO. If you do not have an attorney, contact your superior in the LCSA or the Sheriff and inform them that you require an attorney.

Sheriff's Office in the LCSA disciplinary process

When the Sheriff takes a direct role in LCSA discipline, the LCSO may either handle the entire matter within the Sheriff's Office, or they may provide one or more deputies or attorneys as investigators, judge, or jury in the Uniform Code of Military Justice (UCMJ) process described in the next section.

Formal Process/Uniform Code of Military Justice

When a formal disciplinary process needs to be initiated for conduct in uniform or for prohibited off-duty conduct, the Auxiliary's process is based on the Uniform Code of Military Justice: the same rules used by the military and uniformed service branches. Missouri's version of the UCMJ is defined by Missouri Revised Statutes Chapter 40 (RsMO 40), "Military Justice", and is required for the Missouri National Guard (when not in Federal service) and Missouri State Guard. As we are required in our organization documents to be designed to operate within a State Guard structure when necessary, following Chapter 40 in our own operation makes our system compatible with the state process and prevents us from having to reinvent the wheel.

Because the UCMJ--- and even Missouri's simplified version--- is large, complex, and covers situations which we will in all likelihood never be faced with, we will define our own processes and exceptions to the UCMJ as we go, documenting them in our Volunteer Handbook, in our SOPs/SOGs, and in formal statements from previous cases. When there is a Sheriff's Office or Auxiliary policy on a matter, we follow it first, then go to Chapter 40 for matters where we do not have a defined process. This is the same way, for instance, that Robert's Rules of Order is used by organizations: our rules first, then fall back on Robert's Rules.

When a formal disciplinary matter occurs, there are some immediate responsibilities to handle as quickly as possible:

  • Act to preserve any evidence which will bear on the matter (e.g. witnesses, documents, reports, electronic records) which may otherwise be lost or destroyed.
  • Obtain a formal statement of the complaint from whoever is initiating it ("complainant" or "initiating party").
  • Notify the defendant that a complaint has been initiated and advise them of their rights (see Article 31B Rights).
  • Notify your immediate superior.
  • Notify appropriate staff of a formal proceeding (Senior NCO for enlisted, Executive Officer for officers) or their superiors if they are the target of the complaint. They will determine if and when the matter needs to go further up the chain to the Commander or Sheriff's Office.

Commander's Mast

In the middle of a deployment or emergency, this initial process can be handled by a Commander's Mast. A Commander's Mast is an official meeting during a deployment conducted by the Commander (Acting Commander, or the Sheriff) where certain formal matters can be heard. This process is based on the traditional Navy "Captain's Mast" but is more or less our own process. Matters which may be heard by a Mast include:

  • Issuing promotions or awards
  • "Battlefield" enlistment or temporary ("brevet") promotions which need to be approved later.
  • Handle disciplinary matters which may be resolved within the chain-of-command (no court martial necessary); Often referred to as "Article 15" proceedings, and described later in this course, these are limited to minor matters and only limited punishments.
  • Review (or initiate the review of) a field decision to relieve a specialist such as a medical, safety, or range officer of their post and replace them (always requires a hearing).
  • Initiate a formal investigation
  • Determine temporary actions which need to be taken until the matter is resolved, e.g. if the volunteer must be suspended from duty, removed from the site/facility, or (in very serious matters, such as assault) temporarily confined. In the latter case, confinement will almost always be for hand-off to Sheriff's Office or other civil authority as they will be beyond our jurisdiction
  • A vote by existing officers to recommend a new officer to the Sheriff for commission

The Commander may call witnesses to speak to a matter before the Mast. If the matter is too serious to be handled in the chain-of-command (it requires a court martial or must be handled by the Sheriff's Office), the evidence gathered shall be documented and made part of the record, it may be used to decide whether or not to proceed on an offense, but may not be used to render a final judgement. In the Auxiliary, a hearing at a Commander's Mast may be used to satisfy the requirements of pretrial investigation under RsMO 40.114. The accused and complainant shall also be allowed to call witnesses at a Mast, subject to the requirements of the Service. If the witnesses cannot be called during the Mast (e.g. unavailable or on duty), their statements shall be taken as soon as is practical after the Mast is concluded.

A Mast may not dismiss a volunteer from service. The volunteer may be temporarily suspended pending later review.

Principles of Disciplinary Process

Throughout the disciplinary process, there are some principles which must be preserved. The accused may:

  • Hear and view the accusation(s) in full along with supporting evidence
  • Present evidence and, if appropriate, witnesses in the volunteer's defense
  • Ask questions or request an advocate to advise the volunteer on the disciplinary process and to act on the volunteer's behalf in any proceedings
  • Exercise their Article 31b rights (e.g. Right To Remain Silent, RsMO 40.112).
  • Subject to the requirements of the Service, of chain of command, and of the disciplinary process, protect the confidentiality of the matter until and unless a formal statement is entered into the volunteer's personnel record or other formal action is enacted.

Article 31B Rights (RsMO 40.112)

From http://www.carson.army.mil/LEGAL/tds/article31-rights.html :

  • Article 31 Rights include the general nature of the suspected offense. Legal specifications are not necessary, lay terms are okay. You must be specific enough so that the suspect understands what offense you are questioning him/her about (RsMO 40.108).
  • The suspect's right to remain silent (RsMO 40.112).
  • The consequences of making a statement.
  • Although it is not necessary that the advisement be verbatim, it is best to read the rights directly from a rights advisement card or as directed/available in your branch of service.

Even though Article 31 does not include a right to counsel (that comes from the Constitution) it is listed on the rights advisement card & must be included when reading a suspect his/her rights (RsMO 40.114).

I am __________, (first sergeant of the) _________, _________ (military installation). I am investigating the alleged offense(s) of ___________, of which you are suspected. Before proceeding with this investigation, I want to advise you of your rights under Article 31 of the Uniform Code of Military Justice. You have the right to remain silent, that is, to say nothing at all. Any statement you do make, either oral or written, may be used against you in a trial by court-martial or in other judicial, nonjudicial or administrative proceedings. You have the right to consult with a lawyer prior to any questioning and to have a lawyer present during this interview. You have the right to military counsel free of charge. In addition to military counsel, you are entitled to civilian counsel of your own choosing at your own expense. You may request a lawyer at any time during this interview. Have you previously requested counsel after advisement of rights? (If the answer is yes, stop. Consult your JAG Office before proceeding).

If you decide to answer questions during this interview, you may stop the questioning at any time. Do you understand your rights? Do you want a lawyer? (If the answer is yes, cease all questioning). Have you already consulted an attorney about this matter? (If the answer is yes, stop questioning). Are you willing to answer questions? Do you understand that your are free to end this interview at any time?

Next Steps

The initial communication should outline the complaint, advise the suspect of their rights, outline the process which will be followed, and tell them what the next steps shall be (e.g.):

This communication DOES NOT CONSTITUTE a formal statement of charges. The next steps shall require the Commander, upon consultation with relevant authority, to determine whether these matters rise to a level requiring formal discipline, what charges, if any, shall be proffered, and what level of formal process is appropriate to resolving the matter in the best interests of the Service. The Commanding Officer has the authority to suspend the volunteer from service pending formal proceedings (or for up to two weeks) and is taking that authority under advisement.

In the background, the officer should start the process of gathering information about the complaint and building a record. Remember at this point that the suspect's confidentiality should be preserved where possible. The possibility of Undue Influence (RsMO 40.126) shall specifically be avoided:

Undue Influence: any statement made by a superior officer which might prejudice their subordinates against the accused. In other words, if the Commander says to the Chief of Staff, "He's guilty and he needs to be punished for it," that is undue influence.

Types of Proceeding

Next, a meeting must be conducted to determine what level of discipline to pursue.

Non-Judicial Punishment

Limited to:

  • confinement on diminished rations,
  • restriction to certain specified limits,
  • arrest in quarters,
  • correctional custody,
  • extra duties,
  • forfeiture of pay (not applicable),
  • detention of pay and reduction in grade
  • .

The extent of these punishments depends on the grade of the officer imposing punishment and the grade of the accused. As a volunteer group, the volunteer can always walk away. Imposition of punishment (e.g. extra duty, extra training) has to be voluntary and based on the alternative of being dismissed from service.

Prior to the imposition of nonjudicial punishment, an accused is entitled to notification:

  • that the imposition of nonjudicial punishment is being considered;
  • a description of the alleged offenses;
  • a summary of the evidence upon which the allegations are based;
  • notification that the accused has the right to refuse the imposition of punishment;
  • and any rights the accused has if NJP is accepted.

Court Martial

For more serious offenses, or if the accused refuses Non-Judicial Punishment, the matter must go to a court-martial.

Summary Court Martial (RsMO 40.065)

  • simplified procedure
  • minor incidents of misconduct
  • conducted by one officer
  • limited punishment (fine of not more than $25, reduction to next lower grade, costs)
  • accused must consent to Summary Court Martial

Special Court Martial (RsMO 40.060)

  • enlisted accused only
  • military judge, trial counsel (prosecutor), defense counsel
  • minimum of three officers as a jury
  • enlisted accused may request jury composed of >= one-half enlisted personnel (Missouri differs from UCMJ)
  • accused may request trial by judge alone (no jury)
  • sentence limited to fine of no more than $100, reprimand, reduction of non-commissioned officer to any lower grade, bad-conduct discharge, any combination of above, costs

General Court Martial (RsMO 40.055)

  • military judge, trial counsel, defense counsel
  • minimum of five officers as jury
  • enlisted accused may request jury composed of >= one-half enlisted personnel (Missouri differs from UCMJ)
  • an officer or enlisted accused may also request trial by judge alone
  • maximum penalty may include fine of up to $200; reprimand; dismissal; dishonorable or bad conduct discharge; reduction of a non-commissioned officer to any lower enlisted grade, any combination of above, costs
  • pretrial investigation under RsMO 40.114 (Article 32, UCMJ), must be conducted, unless waved by accused

Changing Roles

An exploration of the changing role of civil-defense organizations.