INVESTIGATIVE JURISDICTION

Base commanding officers, in addition to having the duty of maintaining good order and discipline, have the responsibility of ensuring that neither military nor civilian personnel on base violate federal civilian laws. The Secretary of Defense and the U.S. Attorney General recognize that certain offenses against federal civilian law are also violations against military law. They recognize that the military offender should be prosecuted by a military tribunal after the military investigation. They also recognize that other offenses committed by military personnel or civilians should be investigated by other federal agencies and prosecuted in federal criminal courts. The Manual for Courts-Martial, appendix 3, details investigative jurisdiction. Now let's look at investigative jurisdiction for major crimes and for minor crimes and traffic offenses.

Major Crimes

The Federal Bureau of Investigation is the chief investigative agency tasked with the enforcement of federal criminal laws. Other agencies, such as the Drug Enforcement Administration and the Treasury Department, have investigative jurisdiction over specific crimes. Incidents of actual, suspected, or alleged major criminal offenses should be referred to the Naval Criminal Investigative Service (NCIS), which will decide whether the case should be referred to outside federal agencies. If the federal agency does not assume investigative jurisdiction, NCIS will, in most instances, conduct the investigation.

Minor Crimes and Traffic Offenses

The majority of naval commands have investigative personnel within their security departments. Such persons are normally limited to investigating minor offenses. Any major criminal offense should be referred immediately to the NCIS. This requirement of referral does not in any way restrict command law enforcement personnel from executing appropriate procedures. Appropriate procedures include preventing the escape or loss of identity of offenders, preserving crime scenes and the integrity of physical evidence, or conducting on-scene inquiries as appropriate.

Minor offenses include most misdemeanors and traffic offenses. Both the commanding officer (if the subject is military) and the U.S. magistrates may dispose of these offenses. If criminal prosecution before a U.S. magistrate is appropriate, it is effected by the issuance of a U.S. magistrate's court violation notice, as set forth in SECNAVINST 5822.1.

ASSIMILATIVE CRIMES ACT

To avoid the task of maintaining a complete code of civilian criminal laws for military bases and other federal property, Congress passed the Assimilative Crimes Act. This statute provides that all acts or omissions occurring in an area under federal jurisdiction that would constitute crimes if the area were under state jurisdiction will constitute the same

crimes, similarly punishable, under federal law. For example, Congress has not enacted a traffic code for military bases. However, speeding on a naval base could be a federal traffic violation, because military bases adopt for federal use the traffic laws of the state in which they are located.

TERRITORIAL JURISDICTION

Military reservations generally are categorized as having either exclusive federal jurisdiction or concurrent federal jurisdiction. The federal government may also hold territory in a status of proprietorial interest. Jurisdiction in this context refers to the authority to enact and enforce general criminal laws within a given area. Two or three types of jurisdiction may exist within the same installation. Because parts of a base might have been acquired at different times in different ways, one portion might be under exclusive jurisdiction and the next under concurrent. Law enforcement personnel should consult with their local staff judge advocate concerning the jurisdictional status of all portions of their base. Now let's look at exclusive, concurrent, and proprietary jurisdiction.

Exclusive Federal Jurisdiction

Only the federal government has the power to make and enforce federal laws. Federal laws are enforced through various agencies, including the military. Thus, exclusive federal jurisdiction applies only to areas governed by the specific federal criminal statutes and the statutes of the federal Assimilative Crimes Act. Generally, state laws have neither force nor effect in areas of federal jurisdiction; and local, state, or municipal law enforcement authorities have no authority in such areas.

Concurrent Federal Jurisdiction

Both the federal government and state government (including its county and municipal subdivisions) have authority to make and enforce general municipal laws on the land in question. Thus, a single act could constitute a crime against both the federal and local state law. Both naval authorities and state authorities could, in theory, enforce and prosecute under their respective law. However, they must first seek permission as specified in section 0116 of the Manual of the Judge Advocate General (JAGMAN).

Proprietary Jurisdiction

When the federal government has acquired a degree of ownership of a piece of property but has not obtained legislative authority over the area, generally only the state has the power to enforce its laws on the property. The United States has the right, however, as does any landowner or tenant, to protect its property. In addition, state authorities cannot interfere with any valid military activity on such property.

A court-martial has jurisdiction over a military member on active duty no matter where the offense is committed; however, coordination between naval and state/local authorities is always recommended first.

MARITIME WATERWAY AND SECURITY ZONE JURISDICTION

The United States Coast Guard has the ultimate responsibility for law enforcement jurisdiction for intercostal waterways and in security zones. The Coast Guard will board all vessels making an unauthorized entry into any security zone and make any apprehensions required.

Although the Coast Guard is responsible for security on the waterways, commands are not relieved from their primary responsibility for the protection and security of waterfront facilities.

Further guidance can be found in Combined Federal Regulations 33, chapter 1, part 6, ("Protection and Security of Vessels, Harbors, and Waterfront Facilities").

POSSE COMITATUS ACT

The Posse Comitatus Act provides that the Army and Air Force cannot be used to execute the laws. DOD Directive 5525.5 of 16 Jan 86 and SECNAVINST 5820.7 have applied the same restrictions to the Navy as a matter of DOD and DON policy.

Posse comitatus means the power or force of the county. It authorizes the sheriff to call a posse of citizens to help enforce the law. In the context of this statute and DOD policy, posse comitatus generally means that military personnel cannot be used to enforce civilian laws. This law does not prohibit such individuals from making a citizen's arrest for a felony or breach of the peace committed in their presence or from issuing citations for appearance before a U.S. magistrate. It also doesn't prevent them from performing other duties that support the role of the military; for example, protecting government personnel and property.