La. Admin. Code tit. 41 § II-504

Current through Register Vol. 50, No. 8, August 20, 2024

Section II-504 - Arrest Warrant Procedures

A. Definitions

Apprehension-the taking of a person into custody. [LCMJ Article 7(A)]

Detention-the imposition of custody by competent authority, pending disposition of offenses for a period of longer than 8 hours. For purposes of this Regulation, the term "detention" shall be synonymous with "arrest" and "arrest warrant" under LCMJ Articles 8 and 9.

B. Grounds for Apprehension and Detention-a person subject to the LCMJ may be apprehended and detained only for an offense triable by court-martial upon probable cause to apprehend and when a properly executed arrest warrant is issued. Probable cause to apprehend exists when there are reasonable grounds to believe that an offense under the LCMJ has been or is being committed and the person to be apprehended committed or is committing the offense. Receipt of the sworn Charge Sheet (DD Form 458) is considered probable cause for the issuance of an arrest warrant.

C. Apprehension by Military Authorities. If probable cause exists to apprehend a service member who is located on property under control of the Louisiana National Guard, then persons authorized under LCMJ Articles 7 and 8 may apprehend persons for which, while in a duty status, there is probable cause to believe that an offense has been committed and those who take part in quarrels, frays, or disorders. An arrest warrant shall not be necessary to apprehend service members located on military property or installations.

D. Apprehension by Civilian Law Enforcement

1. Apprehension of all service members who are located outside of military installations or military property shall be conducted under the arrest warrant procedures under LCMJ Article 8 in accordance with this Regulation. Any apprehension conducted outside of military installations and property shall be conducted by civilian law enforcement agencies which have jurisdiction over the location where the accused may be found. In order to make an apprehension, a law enforcement officer may use such physical force as in reasonably justifiable and authorized for the officer to exercise under the laws of this state.

2. Upon making the apprehension, the officer shall take the offender without due delay before the officer directing the apprehension in the arrest warrant. If circumstances require that the accused must be detained prior to being taken to the apprehension authority, he may be placed in a confinement facility, but for no more than 8 hours and he may not be placed in the general population of such facility.

3. If circumstances are such that it is clear that the accused will not be released to his commander within 8 hours of apprehension, then the accused shall be released and given a written order to appear before the court martial on a certain time and date. The order shall provide a warning to the accused that failure to appear will result in another arrest warrant being issued and additional charges brought against him under the LCMJ.

4. Overnight detention or pre-trial confinement is not authorized and, in such circumstance, the arresting authority will release the accused to his unit as expeditiously as possible. Overnight pre-trial confinement pursuant to an arrest warrant shall not be authorized unless approved by the State Judge Advocate.

E. Arrest Warrant Procedure. Arrest warrants may be initiated by the SCMCA (i.e. the Battalion Commander) when, based upon his/her judgment and discretion, all other methods have failed to secure the presence of the accused for trial by court martial.

1. Before an arrest warrant will be approved, the unit must certify that all reasonable efforts to secure the presence of the accused have been exhausted and arrest is the last available means to secure the presence of the accused. Reasonable efforts include, but are not limited to telephone contact, personal contact, AWOL Recovery Team efforts and the like. All specific details of these attempts to contact the accused should be fully set forth in the DA Form 3744 (Affidavit Supporting Request for Authority to Search and Seize or Apprehend. All reasons given by the accused should be listed in the Affidavit, along with the details of the actions taken by the unit to address the accused's concerns.

2. AWOL Recovery Teams. AWOL Recovery Teams usually consist of two or more soldiers who travel to the home of a service member who is Absent Without Leave from a required drill or other assembly and attempt to convince the service member to voluntarily attend the required assembly. AWOL Recovery Teams are not authorized to involuntarily take the service member from his or her home to the assembly. Members of an AWOL Recovery team should include responsible and mature non-commissioned officers or officers. An AWOL Recovery Team which involuntarily secures a service member's presence at drill or other assembly violates this Regulation and may expose themselves to civil litigation pursuant to 28 U.S.C. 1983 . If the service member refuses to return to drill or other assembly, the AWOL Recovery Team will leave, return to the armory. The unit then may request a warrant for the arrest of the AWOL service member. The DA Form 3744 (Affidavit Supporting Request for Authority to Search and Seize or Apprehend) and warrant application will describe the actions of the AWOL Recovery Team and the information learned by their activity.

3. Even after the warrant request is initiated, the unit shall continue to make calls and visits, and send letters to try to recover the service member if the Battalion Commander has not otherwise excused the service member from service.

4. A warrant for arrest must be completed in its entirety to include a copy of the completed charge sheet with required signatures for referral of the charges to a court-martial. A request for an Arrest Warrant [See Appendix G for Arrest Warrant Requirements] must include the following items:

a. warrant checklist;

b. request for warrant signed or endorsed by the battalion commander. In the request, give a summary of the service member's overall performance and answer the following questions.

i. Has the accused been deployed to Operation Iraqi Freedom or Operation Enduring Freedom?

ii. Has the accused experienced any extenuating circumstances or hardship recently or since the unsatisfactory participation?

iii. What specific actions has the unit taken to secure the presence of the accused including a description of all personal contact by the members of the unit?

iv. A characterization of the accused service.

c. DD Form 458, Charge Sheet

d. Arrest Warrant

e. Written Order to Report

f. DA Form 3744, Affidavit Supporting Request for Authority to Search and Seize or Apprehend. Include all elements of "who, what, where, when and why".

g. DRU Judge Advocate Legal Review and Recommendation

5. All arrest warrants shall be approved by the Adjutant General prior to execution. The Adjutant General, in writing, may delegate approval authority for arrest warrants. In order to secure approval, all requests for arrest warrants shall be:

a. sent through the Battalion Commander for recommendation and guidance;

b. sent to the DRU Judge Advocate for legal review. The DRU Judge Advocate or Paralegal will send to the State Judge Advocate for legal review and TAG decision;

c. the Arrest and confinement of any soldier shall be reported by the chain of command directly to the Adjutant General.

6. Written Authorization. A written arrest warrant [Figure 5-3] shall be executed by the authority ordering apprehension and/or detention. The warrant shall:

a. specify the name of the person to be apprehended;

b. specify the nature of the LCMJ offense violated;

c. state the date when issued;

d. state that it is in the name of the governor, be signed and bear the title of the person having authority to issue the order;

e. command any civilian law enforcement officer to arrest the person for whom the order was issued and to bring the person before the commanding officer issuing the order or superior authority (whose address and phone number shall be identified), or deliver the person apprehended to a civil jail to be held for delivery to military authorities;

f. state an amount of bail that may be posted by the soldier to secure his release, which shall not exceed:

i. Summary Court-Martial - $500.00;

ii. Special Court-Martial - $1,000.00;

iii. General Court-Martial - $2,500.00.

F. Use of Force. Any person authorized to make an apprehension is justified in using only such nondeadly force that such person reasonably believes is necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force while making or attempting to make an arrest or while preventing or attempting to prevent an escape. Use of deadly force is prohibited except when a person authorized to apprehend reasonably believes such force is necessary for self-defense or for the defense of another person for the use or imminent use of deadly physical force by the person apprehended or to be apprehended.

G. Report of Apprehension. Any person who apprehends an alleged offender shall immediately cause a report to the offender's commander or superior authority, providing the commander or superior authority with the name of the prisoner, the time and place of confinement, if any, and the name of the person who ordered or authorized the apprehension. A similar report shall be made to the staff judge advocate serving the organization.

La. Admin. Code tit. 41, § II-504

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2379 (November 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).