Jurisprudence

Rules of Engagement for Facing an Insurrectionary Mob

Guy wearing camo and a MAGA hat screaming at police in military-style gear, with Trump flags looming in the background outside the Capitol
Rioters stormed the U.S. Capitol on Wednesday. Joseph Prezioso/Getty Images

Last week’s riot at the U.S. Capitol has sparked renewed soul-searching in regard to law enforcement standards for the use of force. On Monday, the chairman of the committee that has oversight over the U.S. Capitol Police, Rep. Tim Ryan, said that multiple law enforcement members have been suspended for appearing to take selfies with and offer guidance to the rioters. “I want to understand better the rules of engagement, why some people quite frankly didn’t get shot while they were coming into the Capitol,” Ryan told MSNBC’s Andrea Mitchell. “That was my initial instinct: Why aren’t guns drawn and all of that?” Ryan’s comments echoed those last week of the incoming commander in chief, Joe Biden. On Thursday, Biden noted that “no one can tell me that had it been a group of Black Lives Matter protesting yesterday, they wouldn’t have been treated very, very differently than the mob of thugs that stormed the Capitol.” What should the rules of engagement look like for law enforcement dealing with unarmed civilians resisting arrest, peaceful protesters, armed civilians carrying assault rifles in the middle of a riot, or a violent insurrectionist mob storming the Capitol? The U.S. military and its rules of engagement offer some important answers that warrant further consideration from the nation.

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The United States sends its uniformed service members, the vast majority being teenagers or early twentysomethings, into urban conflict zones, and gives them responsibility over some of the world’s deadliest weapon systems to eliminate threats and restore order. Regardless of where these young people are operating, they are obligated to follow fundamental tenets which form a baseline standard of care for the use of force. Codified via the Law of Armed Conflict, each one of these fundamentals is rooted in a principle for the use of force: (1) necessity to use force, (2) proportional use of force, (3) humane treatment of those whom force is used upon, (4) positive identification prior to the use of force, and (5) honor/accountability when force is used. However, unlike the military, U.S. law enforcement agencies are not bound by a universal standard of care for the use of force across all domestic jurisdictions. Rules regarding the use of force, accountability, and transparency of officer misconduct vary from jurisdiction to jurisdiction.

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As an institution, the U.S. military has extensive experience operating in urban environments around the world; the lessons learned are expansive. As a new administration takes office, the president and a new Congress should consider the military framework the most reasonable and palatable path toward a national standard for lawmakers on both sides of the aisle. To be clear, this is not an argument for the militarization of police. If some military principles were adopted and applied domestically, however, they may have prevented the killings of Black civilians, such as Breonna Taylor (positive identification and distinction), George Floyd (proportional use of force), Freddie Gray (humane treatment of those whom force is used upon), and Michael Brown (necessity to use force).

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By tailoring five principles from the military framework—a framework that has been scrutinized, tested, and proven—a national standard could be developed to meet the country’s domestic needs.

Use of Force Principle 1: Necessity

The principle of necessity justifies the use of force to secure submission or to achieve a specific objective. Based on the circumstances, the question must be asked: Is this a legitimate threat? If answered in the affirmative, the use of force to subdue, control, or engage can be justified. Once it has been established that force is justified, follow-on actions must be taken in adherence to the remaining principles. Applied domestically, the death of Jonathan Price, who was tased and then shot four times without evidence or suspicion that he was guilty of a crime, could have been prevented.

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Use of Force Principle 2: Proportionality

The judicious use of force not only prevents unnecessary harm to the citizen being detained, but instills confidence in the public at large that every encounter with law enforcement will not end in death or gratuitous violence. The nature, duration, and scope of force employed must not exceed that which is required to decisively counter the threat. As the military services have learned in the Middle East and throughout the continents of South America and Africa, the key to establishing peace and friendly relations in an urban civilian environment is not through superior use of force but through restraint. A recent example of the utility of this principle would be the case of Jacob Blake. For Blake, force may have been justified, but the nature, duration, and scope of the force employed was arguably in excess of what was reasonably necessary to counter the perceived threat.

Use of Force Principle 3: Humanity

As young privates in the military are taught, once an individual is in your custody and they are restrained/detained, you assume responsibility for their welfare. If they are injured, in need of water, food, shelter, or other necessities—you are responsible for them as they are your detainee. Conversely, if someone else presents a threat to your detainee, you are obligated to intervene on their behalf and prevent further harm. Domestically applied, this principle could have prevented the deaths of Sandra Bland, Eric Garner, and Jamel Floyd. If the Marine Corps’ and Army’s experience in Afghanistan has proven anything, it is that when the perception among the local populace becomes “regardless of compliance, harm will follow,” the incentive to be compliant evaporates and the potential for future threats increases.

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Use of Force Principle 4: Distinction

The concept of distinction requires differentiation between individuals who are a threat and those that are not—positive identification. PID is a tactical technique that all combat arms personnel are indoctrinated with from the very moment they are given access to any weapon. PID is a reasonable certainty that the person who is about to be engaged is in fact the person who is the threat/objective. As many young enlisted Marines and soldiers will attest, although hard, establishing PID prior to pulling the trigger is possible in both deliberate and dynamic situations. Indeed, based on combat performance during the last 20 years, it has been well established that this level of restraint and professionalism is achievable abroad; it should be the standard domestically as well.

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Use of Force Principle 5: Accountability

As the U.S. military has learned, the only way to achieve, maintain, and/or restore public faith is to scrutinize and actively inspect yourself. When misconduct goes unchecked, all who are silent are complicit in the crime and, subsequently, are guilty for failing to uphold the standard of care expected of them.

As military service chiefs are summoned before Congress and admonished for their perceived inaction or shortcomings, police chiefs, commissioners, and sheriffs should equally be held accountable by their local governing bodies. Excessive numbers of complaints, allegations, and inconclusive investigations should be scrutinized internally and, when appropriate, investigated by an outside body. Accountability should not only be expected but demanded at all levels of authority.

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Finally, law enforcement officers will always have the right to self-defense. Nothing discussed above should be interpreted as suggesting that a law enforcement officer in the United States does not have the right to self-defense. That right, however, must be exercised with the five preceding principles in mind, and subsequently scrutinized within the parameters of this framework.

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Understanding that every jurisdiction will have unique challenges, a national standard such as that which exists for the American military should still be achievable. If the United States would hold its experienced, mature, often college-educated law enforcement officers to the same standard to which it holds its teenage military service members, many of the perceived and actual abuses of force would not exist and persist as they do today.

The opinions expressed herein are not endorsed nor do they represent those of the Department of Defense or any other federal agency. They are solely and completely the opinions of the author.

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