National Guard Risks and Recommendations in Public Order Management

(Editor’s Note: This article contributes to a larger body of work by Just Security contributors on racial justice, recent protests, and the role of the military in public order management. You can read more about these issues here.)

Since the tragic murder of George Floyd by police on May 25, more than 20 states have activated National Guard units to support local law enforcement in response to protests and civil disruption. Though the legal authority for activating National Guard troops at the state level is unambiguous, deploying Guard units to respond to civil unrest puts them in a fraught position.

Just over 50 years ago, on May 4, 1970, the Ohio National Guard fired into a crowd of anti-Vietnam War protesters at Kent State University. Four students were killed and nine were injured in the tragic incident. The type of violence seen at Kent State has never been repeated, but several recent incidents have clearly demonstrated the enduring risks of using military personnel to control protests. These incidents have included inappropriate use of military helicopters; the fatal shooting of David McAtee, a Black restauranteur in Louisville, by the Kentucky National Guard during a protest; and the use of tear gas, pepper spray, rubber bullets, and batons during a law enforcement support operation to violently remove previously peaceful protesters from Lafayette Square in Washington.

Asking members of the National Guard to respond to anti-racism protests in their local communities not only presents many service-members with a significant moral dilemma, but it also requires them to operate under conditions for which they may be poorly suited or inadequately trained. While support to civilian law enforcement is one of the National Guard’s identified functions, they are more often activated for domestic disaster relief or to augment active duty troops in international operations. Given the increased risk of confrontation with protestors, the use of National Guard personnel in public order management functions could thus increase the risk of incidents involving the improper use of force. And given the nature of the protests taking place, it almost certainly increases the risk that National Guard personnel will either observe, or be asked to support, actions by local law enforcement that involve excessive force or even criminal misconduct. More broadly, recent Guard activations have contributed to increased public attention to the dangers of asserting military force in a domestic context. Guard members themselves have expressed concern about inadequate training in civilian crowd control and spoken out to condemn the use of force against peaceful protesters.

In response to these concerns, our team at Center for Civilians in Conflict (CIVIC) conducted research on relevant legal authorities and contacted activated state National Guard units to better understand the rules governing the National Guard’s role in support of law enforcement, existing incident reporting mechanisms, and Guard member obligations to report observed misconduct. Our team found that:

  • Rules governing the use of force vary by state.National Guard units operating under state authority, known as State Activated Duty or Title 32 activation, must abide by the law of the state in which they are operating, which may reflect federal codes and standards, or may include a code of military justice that is unique to the state. National Guard units federalized under Title 10 fall under the authority of the federal Uniform Code of Military Justice and must follow the federal rules for the use of force. State policy on the use of force, reporting obligations, and identification requirements is much less clear and explicit than federal policy.
  • Many states lack a centralized and accessible means for civilians to report allegations of Guard misconduct. Units varied in directing civilians to contact either the Public Affairs Office, Judge Advocate General, Ombudsman, or local law enforcement. (In light of this variation, we compiled a state-by-state list of contact information informed by our outreach.)
  • Guard units lack clear guidance on how to report observed law enforcement misconduct, despite this being a key concern of many deployed Guard members. Some unit spokespeople have implied that absent clear guidance, members nonetheless have an obligation to report alleged misconduct through their chain of command or to local law enforcement.

Given the likelihood of continued demonstrations and the potential for repeated Guard deployments as COVID-19 restrictions evolve and national elections draw near, clearer guidance at the state level could help reduce the risk of violence against civilians. Based on CIVIC’s experiences advising militaries abroad and our consultations with Guard members and other experts, we recommend that state National Guard authorities:

  • Provide clear commander’s intent and guidance.The State Adjutant General should emphasize the importance of protecting civil and human rights and safeguarding human life, reinforce the applicable rules of the use of force, clarify arming orders, and emphasize the importance of clear and consistent communication with the public.
  • Clarify the duty to report. Reporting guidance should address both witnessed or suspected misconduct or violations of the federal rules for the use of force by fellow National Guard personnel as well as the forces they support and operate alongside, such as state and local law enforcement.
  • Facilitate the receipt of reports of misconduct from the public. State and National Guard authorities should disseminate public guidance for civilians who wish to directly report witnessed or suspected misconduct or violations by activated National Guard personnel.

Our recent brief summarizes the various legal authorities governing the National Guard, elaborates further on potential areas of risk to civilians, lays out a few other areas of concern/focus, and provides further recommendations.

If National Guard units are to remain a respected and trusted public institution, it is crucial that the public believes they are held to high standards of conduct and feel they have adequate means to report misconduct and obtain redress. Establishing clear expectations and guidelines serves Guard members and the civilians they are sworn to protect by promoting transparency, accountability, and predictability.

Image: National Guard Soldiers stand in line during a “Black Lives Matter” rally and march, that occurred in response to the death of George Floyd and other victims of Police Racism across the U.S, in Boston, Massachusetts on June 3, 2020. (Photo by JOSEPH PREZIOSO/AFP via Getty Images)

 

About the Author(s)

Emilia Pierce

Georgetown Law Fellow, Center for Civilians in Conflict (CIVIC). Follow her on Twitter (@Emilia_Pierce_).

Elizabeth Fray

Georgetown Law Fellow, Center for Civilians in Conflict (CIVIC).