It is painful enough when we lose members of our armed forces when they are sent in harm’s way, but is unfathomable that they should be vulnerable for attack in our own communities.1
On 16 July 2015, in only seven minutes, Mohammad Youssef Abdulazeez attacked a military recruiting center and a Navy Operational Support Center in Chattanooga, Tennessee.2 In the intial three to five minutes, Abdulazeez killed four Marines and mortally wounded a Sailor.3 In cases where the time was ascertainable, seventy percent of active shooter incidents were over in five minutes or less.4 However, nationwide, only 24.9% of the time do police arrive on the scene within five minutes of the initiation of a violent crime.5 Therefore, in the vast majority of active shooter incidents, the attack is over before armed police even arrive at the scene.6
Military stand-alone facilities (SAFs) provide soft targets for “Homegrown Violent Extremists” (HVEs) to engage and therefore present “challenging security environment[s].”7 Stand-alone facilities such as military recruiting centers, reserve centers, and Reserve Officer Training Corps facilities, are frequently located in urban areas easily accessible to the public and unprotected by force security protection measures such as gates, guards, or even fences.8 United States Army Reserve Command (USARC) has approximately 1,400 SAFs nationwide9 and United States Army Recruiting Command (USAREC) has approximately 1,500 recruiting centers nationwide.10 These SAFs are not located on military installations and primarily rely on local law enforcement (LE) for protection; thus, these facilities present an alluring high-value target of opportunity for our enemies, both foreign and domestic, to attack.
Following the Chattanooga, Tennessee, attacks, Secretary of Defense Ashton Carter (SecDef Carter) directed the Service Secretaries on 2 October 2015, “to arm appropriately qualified individuals at select off-installation facilities evaluated to require further protection.”11 This article will synthesize the various authorities implementing this important decision and provide a resource for Army active and reserve component commanders and their legal advisors to utilize. Additionally, this primer will highlight the 18 November 2016, reissuance of Department of Defense Directive (DoDD) 5210.56, which establishes the policy and assigns responsibilities for arming, carrying of firearms, and the use of force by Department of Defense (DoD) personnel when related to their official duties.12 Department of Defense Directive 5210.56 also permits DoD personnel to carry privately owned firearms (POFs) on DoD property in limited circumstances.13
This article is not an all-encompassing resource to address every requirement prior to arming or legal issue that may arise when arming Army personnel for self-defense. Rather, Part II provides an overview of historical events that led to the arming of SAFs. Part III identifies the arming authorities in accordance with DoDD 5210.56, Arming and the Use of Force, and with what type of firearm (government issued or POF) personnel may be armed. Part III also provides an analysis of the DoD decision to allow personnel to carry a POF for personal protection while on DoD property and how that request differs from arming qualified individuals. Part IV examines the applicable rules for the use of force (RUF).14 Lastly, Part V recommends training for judge advocates (JAs), as well as crucial force protection or security best practices when advising commanders on arming qualified Army personnel.
Overview of Decision to Arm Stand-Alone Facilities (SAFs)
The Chattanooga shooting—the impetus for the decision to arm SAFs—is tragically only one of the most recent attacks committed against unarmed military sites. From March 2008 to July 2015, four attacks occured on recruiting centers nationwide,15 with terrorism motivating three of the four attacks.16 In 2009, Abdulhakim Mujahid Muhammad shot and killed Private William A. Long and injured Private Quinton Ezeagwula, both of whom were taking a break from recruiter duties and standing outside a recruiting station located in a “bustling suburban shopping center.”17 Muhammad later wrote a letter to the judge stating, “I’m affiliated with Al Qaeda in the Arabian Peninsula. Member of Abu Basir’s Army. This was a Jihad.”18 Yonathan Melaku, a former Marine reservist,19 pleaded guilty in January 2012 to “five separate shootings at military installations in northern Virginia between October and November 2010 and attempting to injure veterans’ memorials at Arlington National Cemetery.”20 Prosecutors stated, “[Yonathan Melaku] had ‘a large amount of jihadist material on his computer.’”21 Following the Chattanooga attacks, Federal Bureau of Investigation (FBI) Director James Comey explained the shootings were “motivated by foreign terrorist organization propaganda.”22 Law enforcement agents discovered Abdulazeez’s diary where he wrote about his desire to “become a martyr” and discovered online searches for “militant Islamic ‘guidance’ on committing violence” that would absolve in the afterlife his sins on earth.23 Agents also discovered in the weeks preceeding the shooting Abdulazeez had viewed Anwar al-Awlaki’s videos.24 Despite the lack of evidence tying Abdulazeez’s killings to the Islamic State of Iraq and Syria,25 Abdulazeez sent a text to a friend only hours before the shootings “with a link to an Islamic verse, which states, ‘[w]hosoever shows enmity to a friend of Mine, then I have declared war against him.’”26
In the days following the Chattanooga attacks, a flurry of activity addressing the issue of arming servicemembers ensued at both the state and national level. Four Governors increased the security of National Guard (NG) recruiters and facilities in their states by authorizing arming of recruiter personnel for self-defense or relocating recruitment centers to armories.27 Between 20 July and 22 July 2015, Congressmen introduced ten different bills in both the House of Representatives and the Senate regarding firearm access, including POFs, by military personnel.28 On 29 July 2015, SecDef Carter requested recommendations from the Secretaries of the Military Departments, the National Guard Bureau, and the Combatant Commands, on how best to protect servicemembers.29 On 2 October 2015, SecDef Carter directed the “Service Secretaries to arm appropriately qualified individuals at select off-installation facilities evaluated to require further protection.”30 Concurrently, SecDef Carter published the seven Guiding Principles for Augmenting Security to “guide commander-level decision-making to augment installation and facilities security with additional, armed personnel.”31
While all seven guiding principles are germane, three are especially pertinent. First, armed DoD personnel will be trained in the RUF contained in DoDD 5210.56 and these rules will be communicated to local LE.32 Second, it provides the “Military Departments, Services, and other Components” the authority to determine “at which level of command the decision to arm additional DoD personnel will be made.”33 Included within this decision to arm are criteria for commanders to evaluate including:
a current assessment of the probability of the threat at a particular location, the timeliness and adequacy of protection already provided by DoD protective personnel, the timeliness and adequacy of armed response by Federal, State and local law enforcement/security authorities, and the adequacy of existing facility measures to prevent, deter, or mitigate the risk from violent attacks.34
Third, commanders should maximize arming “current or former uniformed military and civilian employees . . . who have had previous training in scaled use of force” such as security, law enforcement, and counterintelligence personnel before considering arming other personnel.35
Following SecDef Carter’s decision to arm qualified DoD personnel at SAFs, Headquarters Department of the Army (HQDA) published Execution Order (EXORD) 011-16 and subsequently five fragmentary orders (FRAGO) from which the Army derives its arming policy. 36 Judge Advocates within United States Army Reserve Command (USARC) should consult Operation Order (OPORD) 16-013 and subsequent FRAGOs 37 for historical purposes and Operation Order 17-001 and its FRAGO, 38 which is still in effect.
While United States Army Recruiting Command (USAREC) may have armed individuals at its approximately 1,500 locations nationwide, USAREC has taken defensive measures, consisting of control access technology, perforated window film, ballistic benches, and ballistic partitions39 just to name a few. Further, facilities will be modified to have a second point of egress to permit escape from an active shooter or any other threat.40
In November 2016, the DoD issued a new DoDD 5210.56, which authorized DoD Components to arm personnel in the performance of their official duties either by allowing them to open or conceal carry a government issued firearm or to open or conceal carry a POF on DoD property related to their official duties.41 In addition, the new DoDD 5210.56 provides DoD personnel a method by which they “may request permission to carry a [POF] on DoD property for personal protection” unrelated “to the performance of official duties or duty status.”42 However, until the SecArmy implements guidance, Army personnel will not be armed except for LE personnel and those personnel performing security duties.43
The following subparagraphs contain guidance as specified in DoDD 5210.56. Although SecArmy has not implemented guidance based on the new directive, it is important to understand DoDD 5210.56 sets the floor for arming authorities and the ceiling on who may be permitted to carry, in either an open or concealed manner, government issued firearms and POFs. Additionally, the HQDA EXORD and its subsequent FRAGOs, as well as USARC’s OPORD 17-001 and its FRAGO, are all still currently in effect.
Authority to Arm
Department of Defense Directive 5210.56 contemplates four designated arming authorities dependent upon two factors: the owner of the firearm (government or privately owned) and whether DoD personnel will carry the firearm open or concealed.44 A commander in the rank of O-4 “or above in the chain of command or the civilian equivalent in the chain of supervision” is the arming authority to open carry “government-issued firearms on or off DoD property” in the performance of official duties.45 In order to conceal carry a government issued firearm on or off DoD property in the performance of official duties, the arming authority “must be an O-6 commander or above in the chain of command or the civilian equivalent in the chain of supervision.”46 The arming authority “[f]or the concealed or open carrying of . . . [POFs] on DoD property in connection with official duties . . . is the Secretary of the Military Department concerned, the Chief of Staff of the Military Service concerned, or the Defense Agency or Activity director or their deputy directors.”47 The arming authority to permit the open or concealed carry of POFs on “DoD property for personal protection” unrelated to the indvidual’s “official duty or duty status” must be “[a]t a minimum . . . a commander in the grade of O-5 or civilian equivalent.”48
Armed Qualified Personnel
Commanders must use their best judgment in choosing whom to arm in their official capacity with the massive responsibility of protecting their fellow servicemembers, civilians, and facilities. All commanders must ensure qualified individuals, before being authorized to carry a firearm, “have been properly screened in accordance with the provisions of Chapter 44 of Title 18, U.S.C.; DoD 5200.2-R; DoDI [Department of Defense Instruction] 5200.46; the Lautenberg Amendment; and DoDI 6400.06” and “must complete DD [Department of Defense] Form 2760.”49 The new DoDD 5210.56 allows the same arming authority who chose to arm DoD personnel to permit personnel to store the government owned and issued firearm at their residence.50
Once the commander chooses who to arm, those individuals must receive requisite training leading to their qualification to be armed. Armed qualified individuals “will satisfactorily complete DoD-approved firearm proficiency training and qualification and use-of-force training every twelve months, as a minimum.”51 Extensions for live-fire qualification are authorized up to an additional twelve months, however, extensions cannot “exceed 24 months since the last qualification.”52
Privately Owned Firearms (POFs)53
The recent reissuance of DoDD 5210.56 now provides three ways in which DoD personnel may either open or conceal carry a POF on DoD property.54 First, DoD personnel performing counterintelligence, law enforcement, or security duties who routinely carry a government owned and issued firearm for duty may be authorized to carry their POF.55 Second, DoD personnel may carry a POF open or concealed in connection with official duties when there is a “threat of harm related to the person’s duties or status.”56 An example of this is when a trial counsel is under threat from an accused and law enforcement or security personnel are not located on site or within a reasonable proximity.57 As previously noted, “the arming authority is the Secretary of the Military Department concerned, the Chief of Staff of the Military Service concerned, or the Defense Agency or Activity director or their deputy directors.”58 These authorizations may last up to a maximum of ninety days and may be renewed for as long as the threat exists.59 Third, DoD personnel may be permitted to carry a POF either open or concealed for personal protection unrelated to their official duty or duty status.60 This is a drastic change to past regulatory provisions that restricted government owned and issued firearms to law enforcement or security personnel and prohibited POFs on DoD property.61
Hypothetically, if a DoD civilian employee is in an abusive relationship and has documented the threat, the employee may request to carry a concealed POF for personal protection.62 In this instance, the threat of harm is related purely to his personal circumstances, not his status as a DoD employee. The following subsections will address the eligibility qualification for DoD personnel to carry a POF for their personal protection unrelated to their official duty or status, including the requirements that must be contained in the request and the written authorization.
There are both specific and general eligibility criteria. The specific eligibility criteria requires the arming authority, after consulting with the servicing JA, to specifically determine that an exception under Title 18 U.S.C. § 930(d) applies before authorizing DoD personnel to bring the POF inside a federal building.63 The general eligibility section contains criteria the arming authorities should consider when deciding whether to allow DoD personnel to carry a POF on DoD property for their personal protection unrelated to their official duties.64 First, DoD personnel should be at least twenty-one years of age and not be subject to past or present action under the Uniform Code of Military Justice (UCMJ) for any offense that calls into question the fitness of the servicemember to carry a firearm.65 Second, DoD personnel should neither be facing chanrges in federal or state court, nor should they have been preivoulsy convicted for any “offense that could result in incarceration, or for any offense listed in Section 922 of Title 18, U.S.C.”66 Third, DoD personnel must be competent with the firearm either through a government or state firearms safety course or through a safety or training course offered to the public.67 Finally, the commander should consider whether DoD personnel have either a Law Enforcement Officers Safety Act (LEOSA)68 credential or authorization to carry a firearm by the state in which the installation is located.69
The requestor must affirm in writing that he meets applicable federal or state laws to carry a firearm by submitting proof of a concealed handgun license under federal or state law in the location where the DoD property is located.70 The requestor must confirm that he will not be “under the influence of alcohol” or any other “intoxicating or hallucinatory drug or substance” that may cause drowsiness or impair judgment while carrying a firearm.71 The requestor must also state that he meets the general and specific eligibility requirements to carry a POF and will notifiy the arming authority regarding any change in condition that would affect his ability or permission to carry a POF.72 For instance, if the threat dissipates, it would change the requestor’s need to carry a POF on DoD property. Additionally, he must acknowledge his compliance with “federal, state, and local law regarding possession and use including but not limited to those concerning the reasonable use of deadly force, self-defense, and accidental discharge.”73 Lastly, the request must contain an acknowledgment that the requestor “may be personally liable for the injuries, death, and property damage proximately caused by negligence in connection with the possession or use [of POFs] that are not within the scope of federal employment.”74 The last two requirements are because the servicemember or DoD employee is not carrying their POF in their official capacity; therefore, the RUF contained in Section 3 of DoDD 5210.56 are not applicable.75
Permission allowing DoD personnel to carry a POF either open or concealed on DoD property for personal protection unrelated to official duty or status must be in writing.76 Similarly, to carry a POF for official purposes, permission will be valid for up to ninety-day increments as long as the threat exists.77 The written permission will include the individual’s name, duration of permit, type of firearm allowed, and whether permission is granted to carry the weapon openly or concealed.78 The directive implies but does not specify that, to avoid issues with other DoD personnel, the individual should always maintain the written permission on their person while armed. Now that qualified individuals are armed the issue then becomes in what circumstances personnel may use force.
Applicable Rules for the Use of Force (RUF)79
Department of Defense personnel who are armed for official purposes “are authorized to use force in the performance of their official duties.”80 The amount of force used must be reasonable and not excessive.81 Department of Defense Directive 5210.56 contemplates the reasonable use of less than deadly force82 in six instances.83 Department of Defense personnel may only use deadly force “when there is a reasonable belief that the subject of such force poses an imminent threat of death or serious bodily harm to a person.”84 There is no requirement that DoD personnel attempt less than deadly force before resorting to deadly force; however, “[i]f less than deadly force could reasonably be expected to accomplish the same result without unreasonably increasing the danger to armed DoD personnel or to others,” then less than deadly force should be used.85 There is a requirement to issue an oral warning prior to utilizing deadly force, provided the situation permits and “if doing so does not unreasonably increase the danger to DoD personnel or others.”86 This is a noticeable change from the previous directive that did not mandate an oral warning if it would “increase the danger to DoD personnel or others.”87 It is implied in the current guidance that an oral warning will increase the danger to DoD personnel, but if the danger is unreasonably increased then an oral warning is not required.88
Department of Defense Directive 5210.56 also contains a non-exhaustive list of circumstances when the use of deadly force may be reasonable.89 Armed individuals may use deadly force “to defend themselves or other DoD personnel in their vicinity”90 and “to protect non-DoD personnel in their vicinity when there is probable cause to believe the target” of the deadly force “poses an actual or imminent threat of death or serious bodily harm.”91 Furthermore, the “defense of those non-DoD personnel . . . [must be] reasonably related to the performance of their assigned mission or to their duty status, or is within the scope of federal employment.”92 An example of this type of situation would be if a potential recruit is shot at while entering a recruiting station. An armed recruiter may use deadly force against the shooter to protect the recruit because the shooter poses an actual or imminent threat of death or serious bodily harm and it is reasonably related to the recruiter’s assigned mission or to the recruiter’s duty status. However, an armed recruiter may not use force to intervene against an armed robber of a nearby business. In this scenario the armed robbery is not related to the armed recruiter’s assigned mission, duty status, and the defense of the nearby business is not within the scope of the armed recruiter’s employment; it is within the scope of civilan law enforcement’s duties.
The RUF only apply when DoD personnel are carrying a firearm in the performance of official duties, not when DoD personnel are carrying POFs unrelated to the performance of official duties.93 Further, DoDD 5210.56 directed the Chairman of the Joint Chiefs of Staff to recommend “Standing Rules for the Use of Force consistent” with the rules contained in the directive. 94 Just like the SecArmy has not issued implemting guidance, the Chairman of the Joint Chiefs of Staff has not issued a new instruction updating the SRUF. A JA knowledgeable in this evolving armed policy is a force multiplier for their command.
Arming Stand-Alone Facilities and the Judge Advocate
The JA plays a major role in advising commanders who have authority to arm as well as the responsibility in selecting the right individuals to arm. Training for JAs in this ever-changing area of arming DoD personnel is crucial. To adequately perform the function of training qualified armed individuals on the applicable use of force, it is highly recommended JA attend specialized training in this area.95
Best Practices for Advising the Command and Armed Personnel
The three primary methods to ensure armed DoD personnel safely handle government issued firearms or POFs are: “proper screening,” “proper training,” and “responsible leadership.”96 The Guiding Principles for Augmenting Security, as well as DoDD 5210.56, provide direction and considerations for commanders to consult prior to implementing an arming plan.97
Commanders must initially and continually screen individuals based on medical, judicial, and temperamental criteria. While the S-3 or G-3 should lead the commander’s arming program, the legal office should maintain a running list of armed DoD personnel and should regularly cross-reference it with investigations trackers and administrative separation actions trackers. Additionally, legal personnel should also cross-reference the list of armed DoD personnel with the personnel section (S-1 or G-1) to determine if anyone armed is flagged in accordance with AR 600-8-2, and, if the flag warrants it, alert the commander.98 The commander should immediately suspend “arming authorizations for DoD personnel who are no longer qualified to be armed” and should retrieve any government property including the firearm and ammunition.99
Commanders should prioritize who they decide to arm with the fullest consideration focusing on DoD personnel who have had previous training in scaled use of force or who have qualified on the firearm they will use to perform the arming duty.100 During initial entry training, Soldiers receive training on engaging a hostile threat with an M4/M16 rifle.101 Usually, only officers, MPs, and special forces personnel receive training on the use of a handgun.102 Thus, JAs should strongly advise and encourage commanders, especially in the reserve component, to mandate extra training for unit Soldiers regularly assigned the M4/M16 to also qualify with a government owned service pistol.103 Therefore, if the commander decides to arm Soldiers with a service pistol for force protection or security, the Soldier is already familiar with the preferred government issued firearm. Additionally, JAs should encourage commanders to train Soldiers at ranges or small arms training simulators that simulate active shooter scenarios.
The concept of responsible leadership entails not only permitting the right DoD personnel to arm but also ensuring DoD personnel know their left and right limits. Judge advocates should assist commanders by providing training on the Posse Comitatus Act (PCA) and the RUF most appropriate to fulfill mission requirements as well as ensure Soldier safety.104 Department of Defense Directive 5210.56 allows arming authorities to approve the storage of a government owned and issued firearm at the person’s residence.105 If the Army should implement guidance permitting Soldiers to carry a firearm outside a SAF’s boundaries, these training objectives will be essential for all armed Soldiers.
Army SAFs, like recruiting centers and reserve centers are located in urban areas, are easily accessible to the public due to mission requirements, and as the past eight years have clearly shown, provide unique targets of opportunity for HVEs. As the attacks in Chattanooga, Tennessee, proved, “HVE attacks occur with little to no warning.”106
Commanders have an explicit duty “[t]o promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under their command or charge.”107 Soliders and civilians serving in SAFs are “sitting ducks . . . they’re stationary” targets.108 Soldiers have difficulty understanding why the government trusts them with a firearm while deployed, yet does not trust them with a firearm to defend themselves and their fellow Soldiers in a SAF that is undefended.109
Recent policy changes beginning with the SecDef memo, which stated, “[t]here is no such thing as perfect security, but we can and must improve the safety of our people at thousands of sites”110 and which authorized commanders to arm qualified DoD personnel with government issued firearms, allows commanders the discretion and flexibility to arm DoD personnel at SAFs. The reissuance of DoDD 5210.56 permits certain arming authorities to allow DoD personnel to carry their POF for official purposes or for personal protection unrelated to official duty or status.111 In the over two years since the directive, SecArmy has yet to issue implementing guidance with regard to DoDD 5210.56; however, commanders still have discretion to arm DoD personnel with government issued firearms for force protection or security purposes.112 Arming DoD personnel within SAFs deters and mitigates the potential lethal risks for DoD personnel who work inside a SAF. TAL
1. Barbara Starr & Theodore Schleifer, Pentagon, Governors Boost Security for Military After Chattanooga Shooting, CNN (July 18, 2015), http://www.cnn.com/2015/07/17/politics/chattanooga-shooting-military-protection/index.html (quoting Oklahoma Governor Mary Fallin).
2. Shelly Bradbury, Minute by Minute: A Timeline of the Chattanooga Attack Revealed, Times Free Press, (Jul. 23, 2015), http://www.timesfreepress.com/news/local/story/2015/jul/23/minute-minute-timeline-abdulazeezs-attack/316028/.
3. Id. Mohammad Youssef Abdulazeez fired on a recruiting center at a Chattanooga strip mall injuring one recruiter. Ed Payne, U.S. Military Recruiting Center Attacks, from New York to Chattanooga, CNN (July 17, 2015), http://www.cnn.com/2015/07/17/us/recruiting-center-attacks/index.html. He then drove seven miles to the Navy Operation Support Center where he killed four Marines, Gunnery Sergeant Thomas Sullivan, Lance Corporal Squire “Skip” Wells, Staff Sergeant David Wyatt, and Sergeant Carson Holmquist, and shot one Sailor, Petty Officer 2nd Class Randall Smith, who later died of his wounds. Bradbury, supra note 2. Abdulazeez also shot a Marine recruiter in the leg and Dennis Pedigo, a Chattanooga police officer, in the ankle. Ed Payne & Victor Blackwell, Chattanooga Shooting: Fifth Service Member Dies, CNN (July 18, 2015), http://www.cnn.com/2015/07/18/us/tennessee-naval-reserve-shooting/index.html. During the attack, Lieutenant Commander (LCDR) Tim White and another servicemember fired their personally owned weapons at Abdulazeez to “provide cover” for other servicemembers to escape over a fence; however, it was unclear if LCDR White’s shot hit Abdulazeez. Associated Press & Staff Report, FBI Explains How Chattanooga Shooting Played Out, How Mohammad Abdulazeez Was Killed, Times Free Press (July 22, 2015), http://www.timesfreepress.com/news/local/story/2015/jul/22/live-updates-press-conference-chattanooga-shootings/315906/ [hereinafter FBI Explains]. Chattanooga police officers shot and killed Abdulazeez. Id.
4. See U.S. Dep’t of Justice , Fed. Bureau of Investigation, A Study of Active Shooter Incidents in the United States Between 2000 and 2013, at 8 (Sept. 16, 2013), https://www.fbi.gov/file-repository/active-shooter-study-2000-2013-1.pdf. See also, Major Anthony M. Osborne, Becoming a Harder Target: Updating Military Firearms Policies to Combat Active Shooters, 223 Mil. L. Rev. 726, 769 (2015).
5. See U.S. Dep’t of Justice , Criminal Victimization in the United States, 2007 Statistical Tables 107 (Feb. 2010), http://www.bjs.gov/content/pub/pdf/cvus07.pdf (last visited Nov. 4, 1016).
6. See id. Based on data compiled by the Department of Justice, police arrive to the scene of a violent crime in six to ten minutes 28.5% of the time and eleven minutes to one hour 37.6% of the time. See id.
7. Memorandum from Sec’y of Defense to Sec’ys of the Mil. Dep’ts, et al., subject: Force Protection Efforts Following the Chattanooga Attacks 1 (2 Oct. 2015) [hereinafter Force Protection Efforts].
8. Andrew Welsh-Huggins, In a Switch, Civilians Guard Military, U.S. News (July 22, 2015), http://www.usnews.com/news/us/articles/2015/07/22/after-tennessee-shootings-armed-citizens-guard-recruiters. Brian Lepley, United States Army Recruiting Command (USAREC) spokesman stated, “Recruiting stations need to be out in the public; we need to be out where young people are.” Id.
9. Telephone Interview with MAJ Michael A.S. Goba, Chief, Int’l & Operational Law, U.S. Army Reserve Command (USARC) (Nov. 10, 2016).
10. Telephone Interview with Charles Abel, Command Anti-Terrorism Officer/Physical Security/Operational Security Officer, USAREC (Dec. 13, 2016). In Fiscal Year 2013, there were 7,872 Active Duty and Reserve Soldiers assigned as recruiters. Support Army Recruiting, U.S. Army Recruiting Command, http://www.usarec.army.mil/support/faqs.htm#recruiters (last visited Nov. 4, 2016).
11. Force Protection Efforts, supra note 7, at 1.
12. U.S. Dep’t of Def., Dir. 5210.56, Arming and the Use of Force glossary (18 Nov. 2016) [hereinafter DoDD 5210.56]. The term Department of Defense (DoD) personnel is defined as “U.S. military personnel and DoD civilian employees.” Id.
13. See id. sec. 4.
14. This primer is not applicable to the arming of National Guard (NG) personnel in a Title 32 U.S.C. status or in a state active duty status. See DoDD 5210.56, supra note 14, para. 1.1.a.(4). The NG is an organized militia. 10 U.S.C. § 311 (2012). The state Governors and the State Adjutants Generals have discretion consistent with pertinent state law and federal law on whether to arm members of the NG. DoDD 5210.56, supra note 13, para. 1.1.(4).
15. Payne, supra note 3. In March 2008, “a bomb exploded in front of a Times Square recruiting station . . . .” Id. The other attacks occurred in Little Rock, Arkansas in 2009, in Washington D.C. and northern Virginia (Va.) in 2010, and in Chattanooga, Tennessee in 2015. Id. Additionally, on July 10, 2017, a US Air Force recruiting station in Bixby, OK was bombed. Brynn Gingras & Holly Yan, Explosion Hits US Air Force Recruiting Office in Oklahoma, CNN (July 11, 2017), https://www.cnn.com/2017/07/11/us/oklahoma-air-force-recruiting-office-explosion/index.html. The attacked did not result in any injuries. Id.
16. Id. See also Abdul Hakim Mujahid Muhammad, Letter to Judge Jan. 12, 2010), http://www.investigativeproject.org/documents/case_docs/1172.pdf (also known by the spelling Abdulhakim Muhammad in other sources); Kristin Sgueglia, Chattanooga Shootings “Inspired”by Terrorists, FBI Chief Says, CNN (Dec. 16, 2015), http://www.cnn.com/2015/12/16/us/chattanooga-shooting-terrorist-inspiration. Authorities were not able to solve the New York recruiting station bombing. Payne, supra note 3.
17. Steve Barnes & James Dao, Gunman Kills Soldier Outsdie Recruting Station, N.Y. Times (June 1, 2009), http://www.nytimes.com/2009/06/02/us/02recruit.html?_r=0.
18. Muhammad, supra note 17. On July 25, 2011, Abdulhakim Muhammad pleaded guilty to capital murder, attempted capital murder, and other charges and received a sentence of life in prison without the possibility of parole. CNN Wire Staff, Man Pleads Guilty to Recruiting Center Killing, Gets Life, CNN (July 25, 2011), http://www.cnn.com/2011/CRIME/07/25/arkansas.recruiter.shooting/.
19. Payne, supra note 3.
20. Press Release, Federal Bureau of Investigation, Washington Field Office, Man Pleads Guilty to Shooting Military Buildings in Northern Virginia, (Jan. 26, 2012), https://archives.fbi.gov/archives/washingtondc/press-releases/2012/man-pleads-guilty-to-shooting-military-buildings-in-northern-virginia. The five shootings occurred “at the following locations: the National Museum of the Marine Corps (twice), the Pentagon, a Marine Corps recruiting sub-station in Chantilly, Va., and a U.S. Coast Guard recruiting office in Woodbridge, Va.” Id.
21. Payne, supra note 3.
22. Sgueglia, supra note 16. Director Comey also stated, “[t]here is no doubt that the Chattanooga killer was inspired, motivated by foreign terrorist organization propaganda.” Id.
23. Brian Ross, et. al., Chattanooga Shooter Researched Religious Justification for Violence: Official, ABCNews (July 20, 2015), http://abcnews.go.com/US/chattanooga-shooting-fbi-recovers-gunmans-disturbing-diary/story?id=32558310.
24. Scott Shane, The Lessons of Anwar al-Awlaki, N.Y. Times Mag. (Aug. 27, 2015), https://www.nytimes.com/2015/08/30/magazine/the-lessons-of-anwar-al-awlaki.html?_r=1.
25. Ross, supra note 23.
26. Manny Fernandez, et. al., In Chatanooga, a Young Man in a Downward Sprial, N.Y. Times (July 20, 2015), http://www.nytimes.com/2015/07/21/us/chattanooga-gunman-wrote-of-suicide-and-martyrdom-official-says.html?_r=0.
27. Starr & Schleifer, supra note 1.
28. See S. 1815, 114th Cong. (2015-2016); S. 1819, 114th Cong. (2015-2016); S. 1821, 114th Cong. (2015-2016); S. 1823, 114th Cong. (2015-2016); S.1835, 114th Cong. (2015-2016); S. 1839, 114th Cong. (2015-2016); H.R. 3115, 114th Cong. (2015-2016); H.R. 3138, 114th Cong. (2015-2016); H.R. 3139, 114th Cong. (2015-2016);
H.R. 3146, 114th Cong. (2015-2016).
29. Force Protection Efforts, supra note 7.
30. Id. at attachment. The arming of qualified DoD personnel is not a violation of the Posse Comitatus Act (PCA), which states, “[w]hoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.” 18 U.S.C. § 1385 (2012). The military purpose doctrine allows service members to protect themselves and other service members. See 10 U.S.C. §375 (2012). See also U.S. Dep’t of Def., Instr. 3025.21, Defense Support of Civilian Law Enforcement Agencies (27 Feb. 2013).
31. Force Protection Efforts, supra note 7, at attachment.
32. Id. The Guiding Principles for Augmenting Security were published in October 2015. Id. At that time, the prior DoDD 5210.56, Carrying of Firearms and the Use of Force by DoD Personnel Engaged in Security, Law and Order, or Counterintelligence Activities, dated April 1, 2011, was in effect. U.S. Dep’t of Def., Dir. 5210.56, Carrying of Firearms and the Use of Force by DoD Personnel Engaged in Security, Law and Order, or Counterintelligence Activities (1 April 2011) [hereinafter Previous DoDD 5210.56]. Thereafter, the Department of Defense rescinded the previous version with the publication of DoDD 5210.56, Arming and the Use of Force, dated November 18, 2016. See DoDD 5210.56, supra note 12.
33. Force Protection Efforts, supra note 7, at attachment.
35. Id. See DoDD 5210.56, supra note 12, para. 2.4b(1).
36. See Headquarters Dep’t of the Army, Execution Order 011-16 (9 Oct. 2015) (on file with author); Headquarters Dep’t of the Army, Fragmentary Order 1 to HQDA Execution Order 011-16 (14 Dec. 2015) (on file with author); Headquarters Dep’t of the Army, Fragmentary Order 2 to HQDA Execution Order 011-16 (18 May 2016) (on file with author); Headquarters Dep’t of the Army, Fragmentary Order 3 to HQDA Execution Order 011-16 (12 Aug. 2016) (on file with author); Headquarters Dep’t of the Army, Fragmentary Order 4 to HQDA Execution Order 011-16 (28 Jan. 2017) (on file with author); Headquarters Dep’t of the Army, Fragmentary Order 5 to HQDA Execution Order 011-16 (21 Apr. 2017)(on file with author).
37. See United States Army Reserve Command, Operation Order 16-013 (2 Oct. 2015) (on file with author); United States Army Reserve Command, Fragmentary Order 001, . . . to OPORD 16-013 (22 Dec. 2015) (on file with author); United States Army Reserve Command, Fragmentary Order 002, . . . to Operation Order 16-013(23 May 2016) (on file with author); United States Army Reserve Command, Fragmentary Order 003, . . . to Operation Order 16-013 (20 June 2016) (on file with author).
38. United States Army Reserve Command, Operation Order 17-001 (28 Oct. 2016) (on file with author); United States Army Reserve Command, Fragmentary Order 001, . . . to Operation Order 17-001 (11 Dec. 2016) (on file with author).
39. Abel, supra note 10.
41. DoDD 5210.56, supra note 12, paras. 2.4.l(1)-(3). The directive implemented Section 526 of the National Defense Authorization Act for Fiscal Year 2016, Section 2672 of Title 10, U.S.C., and Section 926A of Title 18, U.S.C.:
Not later than December 31, 2015, the Secretary of Defense, taking into consideration the views of senior leadership of military installations in the United States, shall establish and implement a process by which the commanders of military installations in the United States, or other military commanders designated by the Secretary of Defense for military reserve centers, Armed Services recruiting centers, and such other defense facilities as the Secretary may prescribe, may authorize a member of the Armed Forces who is assigned to duty at the installation, center or facility to carry an appropriate firearm on the installation, center, or facility if the commander determines that carrying such a firearm is necessary as a personal or force-protection measure.
10 U.S.C. § 2672 note (2015) (Establishment of Process by Which Members of the Armed Forces May Carry an Appropriate Firearm on a Military Installation). The directive does not supersede agreements for DoD personnel in “General Services Administration-managed, owned, or leased facilities protected by the Department of Homeland Security.” DoDD 5210.56, supra note 12, para. 1.2.h(2).
42. DoDD 5210.56, supra note 12, para. 1.2.e. Except as specifically authorized in DoDD 5210.56 or specifically authorized in other DoD policy, “the possession of a privately owned firearm on DoD property is prohibited.” Id. para. 1.2.h.
43. All Army Activities Message, 105/2016, 161829A Dec 16, U.S. Dep’t of Army, subject: ALARACT Carrying of Firearms on Army Installations para. 3, 5.A (16 Dec. 2016) [hereinafter ALARACT]. Department of Defense Directive 5210.56 “does not change current Army policy regarding arming (government issued or [POFs]).” ALARACT, supra, para. 2.
44. DoDD 5210.56, supra note 12, para. 2.4.l. The DoD component heads are tasked the responsibility to “[d]esignate arming authorities for DoD personnel other than DCIO [Defense Criminal Investigative Organizations], counterintelligence, law enforcement, or security duties . . . .” Id. The difference between open and conclead carry is the visilibity of the firearm to the public.
45. Id. para. 2.4.l(1).
46. Id. para. 2.4.l(2).
47. Id. para. 2.4.l(3).
48. Id. para. 2.4.n. Privately owned firearms are discussed in more detail in Part III.C. infra.
49. DoDD 5210.56, supra note 12, para. 3.1.b. Chapter 44 of Title 18 United States Code is the chapter addressing firearms. Department of Defense 5200.2-R details requirements for a security clearance. See U.S. Dep’t of Def., 5200.2-R, Personnel Security Program, (Jan. 1987) (C3, 23 Feb. 1996). Department of Defense Instruction 5200.46 “prescribes procedures for investigating and adjudicating eligibility to hold a CAC [Common Access Card]. U.S. Dep’t of Def., Instr. 5200.46, DoD Investigative and Adjudicative Guidance for Issuing the Common Access Card (CAC) (9 Sept. 2014). Department of Defense Instruction 6400.06 implements the Lautenberg Amendment. U.S. Dep’t of Def., Instr. 6400.06, Domestic Abuse Involving DoD Military and Certain Affiliated Personnel (21 Aug. 2007) (C2, 9 July 2015).
50. DoDD 5210.56, supra note 12, para. 3.3.e(2). Department of Defense personnel authorized to carry government owned and issued firearm or POF while performing official duties may also be permitted to store the firearm at their residence. Id. Department of Defense personnel allowed to store the firearm (government issued or privately owned) at their residence “may transport or carry it to and from their residence.” Id.
51. Id. para. 3.2.b. Security, law enforcement, or other personnel who are required to carry a firearm must complete “DoD Component-approved training every 12 months, including firearms familiarization (classroom academic), live-fire qualification, and use-of-force training.” Id. para. 3.2.a.
52. Id. para. 3.2.b(2).
53. The new DoDD 5210.56 defines a POF as “[a] non-government-issued firearm (including handguns).” Id. at glossary.
54. Id. paras. 2.4.l(3), 2.4.m, 2.4.n. Except as specifically permitted in DoDD 5210.56 or other DoD policy, “the possession of a privately owned firearm on DoD property is prohibited.” Id. para. 1.2.i. The previous DoDD 5210.56 allowed DoD personnel to carry only government owned and issued firearms and ammunition when performing official duties. See Previous DoDD 5210.56, supra note 32, para. 1.b(6).
55. DoDD 5210.56, supra note 12, para. 2.4.m. This primer does not address the requirements for these personnel to carry a POF. Instead, this primer addresses the other two types of personnel who may be permitted to carry a POF.
56. Id. para. 2.4.l(3).
57. Id. para. 1.2.b.
58. Id. para. 2.4.l(3).
60. Id. para. 2.4.n. The arming authority will at a minimum be a “commander in the grade of O-5 or civilian equivalent in charge of the DoD property.” Id.
61. See Previous DoDD 5210.56, supra note 32. See also U.S. Dep’t of Army, Reg. 190-14, Carrying of Firearms and the Use of Force by DoD Personnel Engaged in Security, Law and Order or Counterintelligence Activities (12 Mar. 1993) [hereinafter AR 190-14]. LCDR Timothy White was one of two servicemembers who were carrying POFs inside the Navy Operational Support Center at the time of the Chattanooga attack. Tara Copp, Navy: No Charges Against Officer for Weapons Violations in Attack, Stars and Stripes (Aug. 6, 2015), http://www.military.com/daily-news/2015/08/06/navy-no-charges-against-officer-for-weapons-violations-in-attac.html. During Abdulazeez’s attack, LCDR White returned fire with his POF. Dan Lamothe, Outrage and an Officer: The Anatomy of a Navy Controversy After the Chattanooga Attack, Wash. Post (Aug. 4, 2015), https://www.washingtonpost.com/news/checkpoint/wp/2015/08/04/outrage-and-an-officer-the-anatomy-of-a-navy-controversy-after-the-chattanooga-attack/. After an investigation and public backlash, the Navy did not charge LCDR White with any weapons violations. Copp, supra.
62. See DoDD 5210.56, supra note 12, para. 4.2.a.
63. Id. See 18 U.S.C. § 930(d) (2012). Title 18 U.S.C. Section 930(a) makes it a crime to knowingly possess “or cause to be present a firearm . . . in a Federal facility” or attempt to do so. 18 U.S.C. § 930(a) (2012). Title 18 U.S.C. Section 930(d) states that the provision does not apply to:
(1) the lawful performance of official duties by an officer, agent, or employee of the United States, a State, or a political subdivision thereof, who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of law; (2) the possession of a firearm or other dangerous weapon by a Federal official or a member of the Armed Forces if such possession is authorized by law; or (3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.
18 U.S.C. § 930(d) (2012).
64. See DoDD 5210.56, supra note 12, para. 4.3.b.
65. DoDD 5210.56, supra note 12, paras. 4.3.b(1)-(2).
66. Id. para. 4.3.b(3). The Lautenberg Amendment amended the 1968 Gun Control Act and is codified in 18 U.S.C. 922(g)(9). Id. at glossary. The Lautenberg Amendment “makes it a crime for any person who has been convicted of a misdemeanor crime of domestic violence, or who is subject to a protective order for domestic violence, to possess a firearm.” Id. The Lautenberg Amendment is implemented in Department of Defense Instruction 6400.06. Id.
67. Id. para. 4.3.b(4).
68. The Law Enforcement Officer Safety Act is codified in 18 U.S.C. Sections 926B and 926C. The act allows “the ‘qualified law enforcement officer’ and the ‘qualified retired or separated law enforcement officer’ to carry a concealed firearm in any jurisdiction of the United States” or its territories regardless of local laws, with certain exceptions. http://www.leosaonline.com/ (last visited Dec. 16, 2016).
69. DoDD 5210.56, supra note 12, para. 4.3.b(5).
70. Id. para. 4.2.b(1).
71. Id. para. 4.2.b(2).
72. Id. paras. 4.2.b(3)-(4).
73. Id. para. 4.2.b(5).
74. Id. para. 4.2.b(6).
75. See id. para. 3.4.
76. Id. para. 4.2.a(1).
79. The applicable rules for the use of force (RUF) are contained in DoDD 5210.56. DoDD 5210.56, supra note 12, para. 3.4. The Standing Rules for the Use of Force (SRUF) are contained in enclosure L to the Chairman of the Joint Chiefs of Staff (CJCS) Instruction 3121.01B. Chairman, Joint Chiefs of Staff, Instr. 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for US Forces, encl. L (13 June 2005). The current DoDD 5120.56 directed the CJCS to recommend to the Secretary of Defense SRUF which are consistent with the rules in the directive. DoDD 5210.56, supra note 12, para. 2.5. Further, each state or territory’s NG may have a different set of RUF. This article does not discuss each state’s RUF.
80. DoDD 5210.56, supra note 12, para. 3.4.a. The RUF contained in DoDD 5210.56 are not applicable when DoD personnel are carrying POFs unrelated to the performance of official duties. See id. secs. 3, 4. Local laws will govern the legality of use of force.
81. DoDD 5210.56, supra note 12, 3.4.a. The reasonableness of force “is determined by assessing the totality of the circumstances that led to the need to use force.” Id.
82. Less lethal force is defined as “[t]he degree of force used that is unlikely to cause death or serious physical injury.” DoDD 5210.56, supra note 12, at glossary. It is “synonymous with less than deadly, non-lethal and less than lethal force.” Id. “[T]he term ‘less than deadly force’ is used as there is no guarantee that” non-lethal weapons (NLW) “will not cause severe injury or death.” DoDD 5210.56, supra note 12, para. 3.4.d(1). Non-Lethal Weapons are defined in DoDD 5210.56 as “[w]eapons, devices, and munitions that are explicitly designed and primarily employed to incapacitate targeted personnel or material while minimizing fatalities, permanent injury to personnel, and undesired damage to property in the target area or environment.” Id. at glossary. Department of Defense Directive 3000.03E is the directive on point for NLW policy and adds “NLW are intended to have reversible effects on personnel and materiel.” U.S. Dep’t of Def., Dir. 3000.03E, DoD Executive Agency for Non-Lethal Weapons (NLW), and NLW Policy glossary (25 Apr. 2013).
83. See DoDD 5210.56, supra note 12, paras. 3.4.d(3)(a)-(f). Less than deadly force may be used: “[t]o defend oneself from actual or imminent threat of physical injury or death,”; “[t]o defend other persons from actual or imminent threat of physical injury or death,”;“[t]o overcome the active or passive resistance offered to a lawful detention, arrest, or to accomplish the lawful performance of assigned duties,”; “[t]o prevent the destruction of DoD property”; “to prevent the escape of a prisoner”; and lastly “to control or restrain animals presenting an ongoing or imminent threat of bodily harm against oneself or others.” DoDD 5210.56, supra note 12, paras. 3.4.d(3)(a)-(f).
84. Id. para. 3.4.e(2).
85. Id. para. 3.4.e(2)(b). Furthermore, “[w]arning shots are prohibited in the United States” and “are also prohibited outside the United States unless otherwise authorized by applicable host-nation law and status of forces agreements and in accordance with Standing Rules on the Use of Force in non-United States locations.” Id. para. 3.4.b.
86. Id. para. 3.4.e(3).
87. Previous DoDD 5210.56, supra note 32, encl. 2, para. 4c.
88. See DoDD 5210.56, supra note 12, para. 3.4.e(3).
89. DoDD 5210.56, supra note 12, paras. 3.4.e(4)(a)-(g).
90. Id. para. 3.4.e(4)(a).
91. Id. paras. 3.4.e(4)(a)-(b). The non-exhaustive list also contains four other situations when deadly force may be reasonably used against persons and one situation where deadly force may be used against animals. See id. paras. 3.4.e(4)(c)-(g). The four situations are to protect “assets vital to national security,” to protect “inherently dangerous property,” to protect “national critical infrastructure,” and to perform “an arrest or apprehension,” or prevent escape. DoDD 5210.56, supra note 12, para. 3.4.e(4)(c)-(f). Deadly force may be used against “vicious animals” to defend oneself or others. Id. para. 3.4.e(4)(g).
92. Id. para. 3.4.e(4)(b).
93. See id. secs. 3, 4.
94. DoDD 5210.56, supra note 12, para. 2.5.
95. The Judge Advocate General’s Legal Center and School presents an annual weeklong training on Domestic Operational Law and Domestic Operations, which provides training on the applicable RUF and the PCA. See https://tjaglcspublic.army.mil/documents/27431/27889/TJAGLCS+Catalog/72bb4063-880e-4b07-a00b-f29850a3401d (last visted Feb. 23, 2017).
96. Osborne, supra note 4, at 769. See AR 190-14, supra note 61, paras. 1-4, 2-5.
97. See Force Protection Efforts, supra note 7, at attachment; DoDD 5120.56 supra note 13, para. 2.4.b.
98. See U.S. Dep’t of Army, Reg. 600-8-2, Suspension of favorable Personnel Actions (FLAG) (11 May 2016). A flag is meant to prevent favorable action for DoD personnel in an unfavorable status. Id. para. 2-1. There are two categories of flags, transferrable and non-transferrable. Id. para. 2-1g. The underlying circumstances supporting a non-transferrable flag should preclude arming the flagged individual or support suspending the arming authorization. See id. para. 2-2.
99. DoDD 5210.56, supra note 12, para. 2.4.j.
100. Id. para. 2.4.b(1).
101. See U.S. Dep’t of Army, STP 21-1-SMCT, Soldier’s Manual of Common Tasks ch. 3 (10 Aug. 2015).
102. Discovering the Weapons Used in Basic, Military.com, http://www.military.com/join-armed-forces/discovering-the-weapons-used-in-basic.html (last visited Dec. 4, 2016).
103. Todd South, New in 2018: Army rolling out new handgun across the force, ArmyTimes, (Dec. 26, 2017), https://www.armytimes.com/news/your-army/2017/12/26/new-in-2018-army-rolling-out-new-handgun-across-the-force/.
104. The PCA is not applicable when there is a military purpose such as force protection. Dep’t of Def Inst. 3025.21 Defense Support of Civilian Law Enforcement Agencies, encl. 3, paras. 1.b(1)(e), 1.c(1)(d) (27 Feb. 2013). Direct assistance to civilian law enforcement officials is prohibited. Id. para. 1.c. Examples of direct assistance include surveillance or pursuit of individuals or vehicles, interdiction of a vehicle, and arrest or apprehension. Id. para. 1.c(1).
105. DoDD 5210.56, supra note 12, para. 3.3.e(2).
106. Force Protection Efforts, supra note 7, at 2.
107. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy para. 1-5 (6 Nov. 2014).
108. Welsh-Huggins, supra note 8 (quoting Stewart Rhodes).
109. Osborne, supra note 4, at 753 (citing Michelle Tan, Soldiers Want OK to Carry Concealed Weapons on Base, Army Times (Apr. 8, 2014), http://www.armytimes.com/article/20140408/NEWS05/304080069/).
110. Force Protection Efforts, supra note 7, at 2.
111. DoDD 5210.56, supra note 12, paras. 2.4.l(3), 2.4n.
112. ALARACT, supra note 43, paras. 3, 5.A. See EXORD 011-16, supra note 11.