ML12235A841

SECY-78-350: Role of Use of Deadly Force in Safeguarding Strategic Special Nuclear Material at Nuclear Fuel Cycle Facilities

ML12235A841
Person / Time
Issue date:	06/26/1978
From:	Casey Smith NRC/SECY
To:
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SECY-78-350
Download: ML12235A841 (32)

Text

June 26, 1978 SECY-78-350 For:

From:

Thru:

Purpose:

Categor,Z'.:

Issue:

Decision Criteria:

COl\\t1MISSIONER ACTION The Co111nissioners Clifford V. Smith, Jr., Director Office of Nuclear Material Safety and. Safeguards

-~~

~ Executive Di rector for Operations G- /

• ROLE OF USE OF DEADLY FORCE IN SAFEGUARDING STRATEGIC SPECIAL NUCLEAR MATERIAL AT NUCLEAR FUEL CYCLE FACILITIES To obtain Co111nission approval for Chairman to send attached letters to Senator Ribicoff and Congressman Brooks.

This paper covers a major policy question.

Whether NRC should seek legislative authority for the use of deadly force in the protection of strategic special nuclear material at nuclear fuel cycle facilities.

1.

Must provide adequate protection to the public from unauthorized use of licensed nuclear materials.

2.

Must not accomplish safeguards objectives at the expense of violation of human rights or other valid public concerns.

Alternatives:

I. Rt,tain the current regulatory posture.

The regulations now require responding guards to interpose themselves between material access areas and vital areas and any adversary attempting entry for the purpose of theft of special nuclear material or industrial sabotage and to intercept any person exiting with special nuclear material.

They are also instructed to prevent or im-pede attempted acts of theft or industrial sabotage by using force sufficient to counter the force directed at a guard including deadly force when the guard has a rE!asonable belief it is necessary in sel f*defense a.-

in the defense of others.

The Co1T111issioners II.

Reiquest Congress to pass legislation specifically authorizing licensee guards or response personnel to us.ia deadly force, whether or not its use was necessary iri self-defense or in the defense of others, to pre-ve,1r1t the theft of strategic special nuclear material provided that such force is the minimum needed to pr1event the theft.

Discussion:

On May :2, 1977, the General Accounting Office issued a report (EMD-77--40) that contained, inter alia, the following recomne!1ndati on:

"Seek, as appropriate, Federal and/or State legisla-tive.authority to a 11 ow guards at NRC 1 i censed facilities to use firearms to prevent thefts of SNM if such action is the minimum amount of force neces. sary to prevent the theft.

11 In a le!tter to Senator Abraham Ribicoff, Chairman of the Cammi ttiee on Governmental Affairs, dated June 30, 1977, Chairma::n Rowden responded to this recommendation as follows:

"The Commission published for connnent (42 FR 8382) a propc1*sed amendment to 10 CFR Part 73 that would re-qui re! guards to interpose themselves between material and cuny adversary attempting entry for purposes of radi c1l ogi cal sabotage or theft of SNM and that would require guards to be instructed to apply a sufficient degre!e of force to counter that degree of force di -

recteid at them, including the use of deadly force when there is a reasonable belief it is necessary in self-defense or in the defense of others.

"The question of use of deadly force by 1 i censee guarcl:s--or by policemen for that matter--is a complex one.

Legislative action to override State common law, which has developed slowly and with attention to cu 1 tura 1 attitudes, is not to be taken offh,tnd.

For this reason, we have asked our staff to de!termi ne precisely what role a use-of-deadly force! instruction plays in the defense of SSNM.

"Once! we have the staff's view we will then want to consult with ERDA and other interested agencies on possible courses of action.

This process should be compl,ete by the fal 1."

The Co1T111issioners

.. 3..

Staff has studied this subject at length in connection with the effective rule on 11Guard Force Response To An Alarm 11 (42 FR 64103).

At issue is the first of three principles enunciated in the Statement of Considerations published with that rule.

The pri nci pl e is that 11the guard has no duty to retreat from a show of force, or from a situation that could lead t~) use of force.

11 The reconmendation of this paper is predic:ated on the validity of that principle.

Based on de-liberaltions on the 11Guard Force Response To An Alarm 11 rule (assumfog the validity of the aforementioned principle) and other factors, staff has concluded that current regulatory requirements address the issue of use of deadly force in a satisfactory way and that additional authorizing legislation is not needed.

In all realistic situations the staff be-lieves that guard force use of weapons under the guidelines of th*~ current rule would be justifiable, as long as there was M* duty to retreat. That is why the duty to retreat concept becomes the threshhold and controlling issue of the adequalCY of present 1 aw on use of deadly force for protec-tion c1f facilities and special nuclear material.

No licen-see authorized to possess strategic special nuclear material has tc1ken issue with the staff position that a guard has no duty to retreat.*

In reaching this conclusion, staff examined the marginal gain in protection over that now in force that would be achieved by use of unprivileged deadly force and found that only,! small increment in protection would be achieved (see Enclc,:;ure 1). Collaterally, staff examined the desirability of dE!putizing licensee guards and concluded that such a move would be unwarranted (see Enclosure 2).

Authc1ri ty for use of deadly force by guards of DOE contractors is not demonstrably different from that of private guards at nucl1~ar fuel cycle facilities, i.e., it is privileged only when the user has a reasonable belief that it is necessary in s*~lf-defense or in defense of others.

Instructions by DOE on u:;e of deadly force leave much to the guard's discretion.

• The concern expre;ssed in the GAO report addressed only the use of deadly force in safeguarding strategic special nuclear material against theft, and this paper is limited to that subject. Staff investigation of use of deadly force in protecting nuclear power reactors and nonpower re-actors against sabotage is not complete; results of that investigation will be reported to the Conmission within a few months.

The Co1t111issioners In that regard, DOE has stated, "Each case calls for the ex-ercise of sound judgment by the guard on the application of general guidance to all the facts and circumstances which con*

front him at the time such a decision must be made.

11 (Report from Reibert J. Ghetti to H. E. Lyon, ERDA, dated September 30, 1975.) The new "Guard Force Response To An A 1 arm 11 rule gives more clear-cut guidance to licensee guards.

A Federal law authorizing use of deadly force apart from any ju siti fi cation based on sel f--defense or defense of others could exceed current police authority (see Milton, Halleck, Lardner, and Albrecht, Police Use of Deadly Force, Police Foundation 1977, pp. 38*43). Staff believes such an action would place too great a responsibility on a private guard s,ystem and believes, if the Congress or the public concludled that the risks associated with special nuclear materi.~.1 justified the use of deadly force to prevent its nonviolent theft, that the question of the need for a Federal guard force should then be reopened.

The cases of Mattis v. Schnarr (547 F.2d 1007 (1976)) vacated as moo*t, 52 L.Ed 219 (1977), and Wiley v. Memphis Police Dept.,

548 F.2d 1247 (6th Cir.), cert. denied, 46 U.S.L.W. 3215 (1977) have raised a serious constitutional issue on the use of deadly force *in law enforcement. Typically, the cases factually in-volve i3 fleeing felon who had used no violent force in commit-ting a felony and had not threatened the lives of the police officers. The Courts have come to varying conclusions about the constitutionality of using deadly force in this situation.

The quE!stion is a complex one, and if the decision were made (contrary to the staff's recorrmendation) that the use of deadly force should be authorized in the protection of strategic specia*1 nuclear material apart from any justification based on self-defense or the defense of others, then at least the follow*ing factors must be addressed:

Would the person using the deadly force be required to hctve---

( a) personal knowledge,

The Coirmissioners (b) second~hand information, (c) a "reasonable belief", or (d) a presumption that the fleeing suspect--

(a) has more than a "formula quantity" of high-enriched uranium or plutonium in his possession, or

( b) has any amount ( even 1 ess than a 11fonnul a quantity") of high-enriched uranium or plutonium in his possession, or (c) has used violence in effecting entry or obtaining the high-enriched uranium or plutonium, if any, in his possession.

Two alternative courses of action have been analyzed as follows:

AL TERNJHIVE I. Retain the current regulatory posture.

The re9ulations now require responding guards to interpose themse*lves between material access areas and vital areas and any adversary attempting entry for the purpose of theft of spec:ial nuclear material or industrial sabotage and to interci~pt any person exiting with special nuclear material.

They are also instructed to prevent or impede attempted acts of the-ft or industrial sabotage by using force sufficient to counter the force directed at a guard including deadly force when the guard has a reasonable belief it is necessary in self-defense or in the defense of others.

PRO:

o Would provide for protection of strategic special nuclear material in instances of anned attack on nuclear facilities, in which guards are privileged to Lise deadly force in self-defense.

The Corrmissioners Would be least disruptive to NRC 1 s present safeguards posture.

Woul1d avoid the possibility of prolonged and possibly inconclusive public debate concerning the justifica-ti 011 for using deadly force in the protection of stra1tegi c special nuclear material.

The staff believes the current rule to be adequate.

CON:

Woull d not be supportive to the recommendation of the General Accounting Office.

Wou"ld retain in the regulations a rule on the use of fon:e by guards whose total adequacy for securing speiiei al nuclear material from theft has from time to time been questioned by individual members of thE? Congress.

ALTERUATIVE II.

Request Congress to pass 1 egi s1 ati on speci-fically authorizing licensee guards or response personnel to use d1:adly force, whether or not its use was necessary in sel f-1j,efense or in the defense of others, to prevent the theft of strategic special nuclear material provided that such force is the minimum needed to prevent the theft.

Wo~1ld overcome the uncertainty associated with specific state laws or the common law in general about the right to use deadly force for the protection of potentially ha.~ardous materials such as strategic special nuclear material.

The Co11111issioners o W1ould assure uniform protection because of explicit fiederal 1 egi sl ati on.

o Would make clear to the public, plant operators, and guard personnel that guards can and should use deadly f,orce as necessary to stop a theft of strategic sipeci al nuclear material without the guards having to first decide if their lives or the lives of others are in danger.

o ~li0ul d cover those few possibi 1 i ties that might not now be covered by 10 CFR 73.50(g)(2) and (3).

{See.)

CON:

o Protection of strategic special nuclear material in instances of armed attack on nuclear fuel cycle facil-ities is already assured by 10 CFR 73.50(g)(2) and (3).

o Wi0ul d involve an extension of F edera 1 1 aw that wi 11 be highly controversial and could take several years ti:> go through the 1 egi sl ati ve process and be implemented.

o The fact that NRC requested legislation on this 5;1ubject could be misinterpreted as indicating that MRC deemed an element of safeguards to be inadequate.

The Commissioners o 1,ould call for reconsideration of need for Federal

~1uard force.

o Failure to secure legislation, if sought, might c:ast doubt on present regulatory requirements.

Recommendation:

1. That the Commission approve:

Coordination:

a) Alternative 1, "Retain the current regulatory posture.

The regulations now require responding guards to interpose themselves between material access areas and vital areas and any adversary attempting entry for the purpose of theft of special nuclear material or industrial sabotage and to

'intercept any person exitiflg with spe~

cial nuclear material. They are also instructed to prevent or impede attempted acts of theft or industrial sabotage by using force sufficient to counter the force directed at a guard including deadly force when the guard has a reasonable be~

lief it is necessary in self*defense or in the defense of others, 11 and not seek additional authority for use of deadly force in the protection of strategic special nuclear material; b)

The letters, attached as Enclosures 3 and 4, to Senator Ribicoff and Congressman Brooks, respectively.

'2. Note that appropriate Congressional conmittees will also be sent copies of the letter as in Enclosure 3.

3.

Note that a public announcement will not be made.

The Offices of Inspection and Enforcement, the Executive Le11al Director, Policy Evaluation, General Counsel, and Co,11gressionaJ Aff~irs com:ur in t,he_r_ecommendation of this pa.per. and suggest similar letters be forwarded to Senator Hart, and Congressmen Udall and Dingell.

Since this paper only covers fuel cycle facility

The Commissioners

Enclosures:

.. g..

issL1es, the Office of Nuclear Reactor Regulation has no objection. The Office of the Executive Legal Director prepared those portions of the paper concerned with legal issues. The Office of Public Affairs concurs in the conclusion that a public announcement should not be madE!.

/....._ghlifford V. Smith, Jr., Director

,qriffice of Nuclear Material Safety and Safeguards 1.

Potential Incremental Protection 2.

Deputizing Licensee Guards 3.

Draft letter to Senator Ribicoff 4.

Draft letter to Congressman Brooks

~~'1°-YY

ENCLOSURE l Potential Incremental Protection

ENCLOSURE 1 EVALUATING THE POTENTIAL INCREMENTAL PROTECTION FROM AUTHORIZING LEGISLATION Use of deadly force has been a component of the protection of licensed SNM since November 6, 1973 (38 FR 30537), when a requirement for guards (defined at that timE~ as a uni formed i ndi vi dua 1 armed with a firearm *** )

was incorporated in the regulations in 10 CFR Part 73.

The requirement for a deadly weapon *implies the use of that weapon under certain ci rcum-stances.

The implicit requirement for use of deadly force was made explicit on December 22, 1977, with the publication (42 FR 64103) of an effective rule on "Guard Force Response To An Alarm.

11 In adopting that rule after due deliberation, thE! Co1T111ission decided that it was necessary and effec-tive in safeguarding licensed special nuclear material at fuel cycle facilities.

The pertinent provisions of that rule are:

"The 1 i censee sEii::uri ty organization sha 11 require responding guards to i nterp1:>se themselves between material access areas and vital areas,and any adversary attempting entry for the purposes of theft of special nuclear material or industrial sabotage and to intercept any material.

11The 1 i censee sh,:l 11 instruct every guard to prevent or impede attempted acts cif theft or industrial sabotage by using force sufficient to counter the force directed at him including deadly force whe*n the guard has a reasonable belief it is necessary in self-defense or in the defense of others.

11 Use of deadly force cannot be counted on to be effective by itself; its use is only one element of an overa 11 safeguards system.

A report prepared for NRC on this subject* observes that "it is debatable whether authorizing or requiring use of deadly force whenever reasonably needed to protect SNM or lic:ensed facilities would have any significant effect, either beneficial or harmful.

Occasions when deadly force might be applied are likely tc, be emotionally charged ****

The frequency with which trained soldiers have failed to fire their weapons during battle is ample warning that any prediction about the effect of a federal author..

i zation or requfremerit to use deadly force should be discounted to some extent."

Another study*'* prepared for NRC by the United States Marshals Service discusses 11 *** the question of whether a guard of SNM should be willing to put his life on the line if necessary.

In point of fact, it is a moot question--unanswerablle until the actual situation should arise for the individual guard **** The matter of a guard's risking his life *** is probably more closely tied to training, anyway.

11 Because of the new rule on "Guard Force Response To An Alann" that has just been promulgated and the 1 imited effectiveness of deadly force -in the total protection 1effort (see preceding two paragraphs), any addi-t i ona 1 authority by s,tatute, such as recommended by GAO, can be seen as providing only an increment of protection, the significance of which

• Alan V. Washburn, "Use of Deadly Force To Protect Special Nuclear Material and Licensed Facilities," Appendix C, pp. 24-25.

• • "Security of Specia;I Nuclear Materials," October 1975.

(Not for public dissemination.)

cannot be justified.

Indeed, the enactment of speci fie authorizing legislation has been seen as affecting only 11a margin of an increment of an edge.""lnlr* Furthennore, such a law could exceed current police authority (see Milton, Halleck, Lardner, and Albrecht, Police Use of Deadly Force, Police Foundation 1977, pp. 38-43.)

• • • Washburn, £2.!_ cit~:.., p. 18.

ENCLOSURE 2 Deputizing Licensee Guards

• ----------------,--~

ENCLOSURE 2 DESIRABILITY OF DEPUTIZING LICENSEE GUARDS Staff has considered the desirability of deputizing licensee guards.

It is generally helcl that a law enforcement officer may use deadly force, if he reasonably bel,ieves it necessary, to prevent the escape of a person fleeing from arrest for a felony (in some states, only for a 11violent 11 felony}.

A private: citizen (including a private guard} is more limited in arrest authority and is not privileged if it turns out that the per-son against whom dE?adly force was actually used did not commit a felony for which a privat1~ citizen can arrest. The Model Penal Code allows the use of deadly fore*~ by a private person in making arrests only when that person believes he is assisting a law enforcement officer.

On balance, staff believes that deputizing licensee guards to gain a debatable arrest advantage is not desirable because (a) it is not available in all jurisdictions; (b) 1 it makes the guards subject to all restrictions placed on state police officers under the Fourteenth.Amendment (such as warning on arrest.and before questioning), and (c) 1 makes the guard 1Although this is a legitimate concern from the standpoint of safeguards effectiveness, OELD notes that these factors may be regarded by others as an advantage to deputization since it would afford some measure of public protection again's,t unreasonable actions by private guards.

... ___________ _ c.learly subject2 to suit for unreasonable detention, or to criminal and civil penalties for 11iolation of civil rights under color of state law (see, e.g., 18 U.S.C.. 242, 42 u.s.c. 1983; Williams v. United States, 341 U.S. 97 (1951), !iriffin v. Maryland, 378 U.S. 130 (1964), United States

v. Hoffman, 498 F.2d.. 879 (1974).)

2An argument could bii:! made that such guards act under "col or of 1 aw" even without being deput:i zed - but the argument is much weaker than in the case of deputization.

ENCLOSURE 3 Ora-ft Letter to Senator Ribicoff

ENCLOSURE 3 (Draft letter)

The Honorable Abraham Ribicoff Chairman, Conmittee on Governmental Affairs United States Senate Washington, D.C.

20510

Dear Mr. Chairman:

As promised in Chairman Rowden 1s letter to you dated June 30, 1977, the NRC has given consi de!rati on to the need for 1 egi sl ati on concerning the role of a 11use of dectdly force 11 instruction in the defense of strategic special nuclear material at nuclear fuel cycle facilities. This letter is to inform you of our conclusion.

Use of deadly force has been one element of the protection required by NRC since November 61, 1973.

In order to clarify the requirements of this safeguards system el E~ment, we published a rule in the Federal Register on December 22, 1977 1, entitled 11Guard Force Response to an A 1 arm.

11 We believe this rule effectively addresses the issue.

Our analysis has shown that a request for additional legislative authority for the use of deadly force would provide no significant benefit to the present system of protecting special. nuclear material from malevolent acts.

Although state laws vary somewhat on the question of justifiable homicide, in the narrow context of private guards doing their job on private property, three major aspects of use of deadly force appear to be generally accept-able in this country and can, accordingly, be embodied in a rule of general

application. The first is that the guard in performing his duty is under no obligation to retreat from a show of force, or from a situa-tion that could lead to use of force.

This principle is embodied in the "Guard Force Response to an Alarm" rule referred to above in the requirement that the guard interpose himself between the adversary and the material access areas or vital areas subject to attack. A second principle is that guards may generally meet force or a threat of force with force.

Finally, there is general acceptance of the use of deadly force when there is a reasonable belief it is necessary in self-defense or in defense of othE?rs.

In order to ensure that licensee guards act consistently with these principles, it is made clear in the rule that licensees' guards are expected to stand and use their right of self-defense against adver-saries. The Co11111issi1:rn believes that these three principles, taken together, constitute,m adequate, practical, and publicly acceptable basis for the response regulation.

A further discussion of the factors considered is enclosed.

Enclosure:

Sincerely, Joseph M. Hendrie Chairman Discussion on Role of Deadly Force in the Protection of Special Nuclear Material and Licensed Facilities

"-*--------~

Enclosure ROLE OF USE OF DEADLY FORCE IN SAFEGUARDING STRATEGIC SPECIAL NUCLEAR MATERIAL On May 2, 1977, the General Accounting Office issued a report (EMD-77-40) that contained, inter alia, the following reconmendation:

11Seek, as appropriate, Federal and/or State legislative authority to allow guards at NRC licensed facilities to use fireanns to prevent thefts of SNM if such action is the minimum amount of force necessary to prevent the theft.

11 Chainnan Rowden responded to this recorrmendation as follows:

11The Corrmission published for comment (42 FR 8382) a proposed amendm,ent to 10 CFR Part 73 that would require guards to interpose themselves between material and any adversary attempting entry for purposes of radiological sabotage or theift of SNM and that would require guards to be instructeid to apply a sufficient degree of force to counter that degree of force directed at them in-cluding the use of deadly force when there is a reason-able belief it is necessary in self-defense or in the defense of others.

11The question of use of deadly force by licensee guards

--or by policemen for that matter--is a complex one.

Legislative action to override State conmon law, which has developed slowly and with attention to cultural attitudes, is not to be taken offhand.

For this reason, we have asked our staff to detennine precisely what ro1 e a use-of-deadly force instruction plays in the defense of SSNM.

11Qnce we have the staff I s view we wi11 then want to consult with EHDA and other interested agencies on possible courses of action. This process should be comp1 ete by thE! fal 1.

11 The staff has studied this issue at length in connection with the effective rule on 11Guard Force Response To an Alarm.

11 Based on those deliberations and other factors, the staff has concluded that current regulatory requirem1~nts address the issue of use of deadly force in a satisfactory way and that additional authorizing legislation is not needed.

In this connection, the following points are noted.

1.

On December 22 :* 1977 ( 42 FR 64103), the Commission pro mu 1 gated the 11Guard Force Response To an Alarm 11 rule after due deliberation, presuming that the n1ew rule was necessary and effective in safe-guarding licensed s~ecial nuclear material and facilities.

The pertinent provisions of that rule are:

"The licensee siecurity organization shall require responding guar~s to interpose themselves between material access areas and vital areas and any adver-sary attempting entry for the purpose of theft of special nuclear material or industrial sabotage and to intercept any material.

11The licensee shall instruct every guard to prevent.

or impede attempted acts of theft or industrial sabo-tage by using force sufficient to counter the force directed at him including deadly force when the guard has reasonable belief it is necessary in self-defense or in the defense of others.

11

2.

Use of deadly force has been a component of the protection of licensed special r1uclear material since November 6, 1973 (38 FR 30537), when a requirement for guards (defined at that time as a uniformed individual armed with a firearm... ) was incorporated in the regulations in 10 CFR Part 73.

The requirement for a deadly weapon implies the use of that weapon under certain circumstances.

, __ 3.

Use of deadly force cannot be counted on to be effective by itself; its use is only one element of an overall safeguards system.

A report prepared for NRC on this subject* observes that 11it is debatable whether authorizing or requiring use of deadly force whenever reasonably needed to protect SNM or licensed facilities would have any significant effect, either beneficial or harmful.

Occasions when deadly force might be applied are likely to be emotionally charged.... The frequency with which trained soldiers have failed to fire their weapons during battle is ample warning that any prediction about the effect of a federal authorization or requirement to use deadly force should be discounted to some extent."

Another study** prepared for NRC by the United States Marshals Service discusses 11 *** the question of whether a guard of SNM should be willing to put his life on the line if necessary.

In point of fact, it is a moot question--unansw,erable until the actual situation should arise for the individual guard... The matter of a guard's risking his life... is probably more closely tied to training, anyway."

4.

Because of the n1~w rule on "Guard Force response To an Al arm" (Item 1) and the limited effectiveness of deadly force in the total

. 1 1

Alan V. Washburn, "Use of Deadly Force to Protect Spec,a Nuc ear Material and Licensed Facilities," Appendix C, pp. 24-25.

(

"Security of Special Nuclear Materials, 11 October 1975.

Not for public dissemination)

, __ protection effort (Item 3), any additional authority by statute, such as recolTDllended by GAO, c:an be seen as providing, at best, only a marginal increment of protection, the significance of which cannot be justified.

Such a 1 aw could exce!ed current po 1 ice authority ( see Mi 1 ton, Ha 11 eek, Lardner, and Albrecht, Police Use of Deadly Force, Police Foundation 1977, pp. 38-43).

5.

Staff has also,:.onsidered the desirability of deputizing licensee guards. It is-generally held that a peace officer may use deadly force, if he reasonably believes it necessa*ry, to prevent the escape of a person fleeing from arrest for a felony (in some states, only for a "violent" felony). A private citizen (including a private guard) is more limited in arrest authority and is not privileged if it turns out that the person against whom deadly force was actually used did not comnit a felony for which a private citizen can arrest.

The Model Penal Code allows the use of dea.dly force by a private person in making arrests only when that person believes he is assisting a peace officer.

On balance, staff believes that deputization of licensee guards to gain a debatable arrest advantage is not desirable because (a) it is not available in all jurisdictions; (b) it makes the guards subject to all restrictions placed on State policE~ officers under the Fourteenth Amendment (such as warning on arrest and before questioning), and (c) makes the guard subject to suit for unreasonable detention, or to criminal and civil penalties for violation of civil rights under color of State law.

(see, e.g., 18 U.S.C. 242; 42 U.S~C. 1983; Williams-v. United States, 341 U.S. 97 (1951); !iriffin v. Maryland, 378 U.S. 130 (1964); United States

v. Hoffman, 498 F.2d 879 (1974)).

6.

DOE instructions on "use of deadly force" are equivocal. Authority to use deadly force 'is not demonstrably different from that of private guards at licensee facilities, i.e, privileged when the user has a reasonable belief that it is necessary in self-defense or in the defense of others.

In the last analysis, DOE has stated, "Each case calls for the exercise of sound judgment by the guard on the application of general guidance to all the facts and circumstances which confront him at the time such a decision must be made.

11 (Report from Robert J. Ghetti to H. E. Lyon, ERDA, dated September 30, 1975.) The new guard force response rule gives more clear-cut guidance to the guards.

ENCLOSURE 4 Draft: Letter to Congressman Brooks

ENCLOSURE 4 (Draft letter)

The Honorable Jack Brooks Chairman, Committee on Government Operations United States House of Representatives Washington, D.C.

20515

Dear Mr. Chairman:

As promised in Chairman Rowden's letter to you dated June 30, 1977, the NRC has given consideration to the need for legislation concerning the role of a "use of de,~.dly force" instruction in the defense of strategic special nuclear material at nuclear fuel cycle facilities. This letter is to inform you of our conclusion.

Use of deadly force has been one element of the protection required by NRC since November 6,, 1973.

In order to clarify the requirements of this safeguards system elE!ment, we published a rule in the Federal Register on December 22, 1977~ entitled "Guard Force Response to an Alarm."

We believe this rule effectively addresses the issue.

Our analysis has shown that a request for additional legislative authority for the use of deadly force would provide no significant benefit to the present system of protecting special nuclear material from malevolent acts.

Although state laws vary somewhat on the question of justifiable homicide, in the narrow context of private guards doing their job on private property, three major aspects of use of deadly force appear to be generally accept*

able in this country and can, accordingly, be embodied in a rule of general

application.

The first is that the guard in performing his duty is under no obligation to retreat from a show of force, or from a situa-tion that could lead to use of force.

This principle is embodied in the "Guard Force Response to an Alarm" rule referred to above in the requirement that the guard interpose himself between the adversary and the material access clreas or vital areas subject to attack. A second principle is that guards may generally meet force or a threat of force with force.

Finally 1, there is general acceptance of the use of deadly force when there is a reasonable belief it is necessary in self-defense or in defense of othE!rs.

In order to ensure that licensee guards act consistently with these principles, it is macl,e clear in the rule that licensees' guards are expected to stand and use their right of self-defense against adver-saries.

The Co11111issfon believes that these three principles, taken together, constitute crn adequate, practical, and publicly acceptable basis for the response regulation.

A further discussion of the factors considered is enclosed.

Enclosure:

Sincerely, Joseph M. Hendrie Chairman Discussion on Role of Deadly Force in the Protection of Special Nuclear Material and Licensed Facilities

Enclosure ROLE OF USE OF DEADLY FORCE IN SAFEGUARDING STRATEGIC SPECIAL NUCLEAR MATERIAL On May 2, 1977, _ the General Accounting Office issued a report (EMD-77-40) that contained, inter alia, the following recoITTTlendation:

"Seek, as appropriate, Federal and/or State legislative authority to allow guards at NRC licensed facilities to use firearms to prevent thefts of SNM if such action is the minimum amou1nt of force necessary to prevent the theft.

11 Chairman Rowden responded to this recoITTTlendation as follows:

"The Commission published for comment (42 FR 8382) a proposed amendment to 10 CFR Part 73 that would require guards to interpose themselves between material and any adversary attempting entry for purposes of radiological sabotage or theft of SNM and that would require guards to be instructed to apply a sufficient degree of force to counter that degree of force directed at them in-cluding the use of deadly force when there is a reason-able belief it is necessary in self-defense or in the defense of others.

"The question of use of deadly force by 1 icensee guards

--or by policemen for that matter--is a complex one.

Legislative action to override State corrrnon law, which has developed slowly and with attention to cultural attitudes, is not to be taken offhand.

For this reason, we have asked our staff to determine precisely what role a use-of-deadly force instruction plays in the defense of SSNM.

"Once we have the! staff's view we will then want to consult with ERDA and other interested agencies on possible courses of action.

This process should be complete by the fall.

11 The staff has studied this issue at length in connection with the effective rule on "Guc,rd Force Response To an Alarm."

Based on those

,... deliberations and other factors, the staff has concluded that current regulatory requirements address the issue of use of deadly force in a satisfactory way and that additional authorizing legislation is not needed.

In this conn~ction, the following points are noted.

1.

On December 22, 1977 (42 FR 64103), the Commission promulgated the "Guard Force Resj:1onse To an Alarm 11 rule after due deliberation, presuming that the m:w rule was necessary and effective in safe-guarding licensed special nuclear material and facilities.

The pertinent provisions of that rule.are:

11The licensee SE!curity organization shall require responding guards to _interpose themselves between material access areas and vital areas and any adver-sary attempting entry for the purpose of theft of special nuclear material or industrial sabotage and to intercept any material.

"The licensee sr,all instruct every guard to prevent or impede attempted acts of theft or industrial sabo-tage by using farce sufficient to counter the force directed at him including deadly force when the guard has reasonable be~lief it is necessary in self-defense or in the defense~ of others.

11

2.

Use of deadly force has been a component of the protection of licensed special nuclear material since November 6, 1973 (38 FR 30537), when a requirement for guards (defined at that time as a uniformed i.~11dividual armed with a firearm... ) was incorporated in the regulations in 10 CFR Part 73.

The requirement for a deadly weapon implies the use of that weapon under certain circumstances.

__________________,_ 3.

Use of deadly force cannot be counted on to be effective by itself; its use is only one element of an overall safeguards system.

A report prepared for NRC on this subject* observes that "it is debatable whether authorizing or requiring use of deadly force whenever reasonably needed to protect SNM or* licensed facilities would have any significant effect, either beneficial or harmful.

Occasions when deadly force might be applied are likely to be emotionally charged.... The frequency with which trained soldiers have failed to fire their weapons during battle is ample warning that any prediction about the effect of a federal authorization or requirement to use deadly force should be discounted to some extent.

11 Another study** prepared for NRC by the United States Marshals Service discusses 11 *** the question of whether a guard of SNM should be willing to put his life on the line if necessary.

In point of fact, it is a moot question--unanswerable until the actual situation should a-rise for the individual guard... The matter of a guard's risking his life... is probably more closely tied to training, anyway."

4.

Because of the n1:!W rule on 11Guard Force response To an Al arm" (Item 1) and the limited effeitiveness of deadly force in the total

• Alan V. Washburn, 11 Use of Deadly Force to Protect Special Nuclear Material and License~d Facilities," Appendix C, pp. 24-25.

• • "Security of Special Nuclear Materials," October 1975.

(Not for pub 1 i c d i s s em i na ti on )

___________________,_ protection effort (Item 3), any additional authority by statute, such as recommended by GAO, can be seen as providing, at best, only a marginal increment of protection, the significance of which cannot be justified.

Such a law could exceed current police authority (see Milton, Halleck, Lardner, and Albrecht, Police Use of Deadly Force, Police Foundation 1977, pp. 38-43).

5.

Sta ff has al so considered the des i rabi 1 i ty of deputizing 1 i censee guards.

It is generally held that a peace officer may use deadly force, if he reasonably believes it necessa*ry, to prevent the escape of a person fleeing from arrest for a felony (in some states, only for a 11violent 11 -felony).

A private citizen (including a private guard) is more limited in arrest authority and is not privileged if it turns out that the person against whom deadly force was actually used did not commit*

a felony for which a private citizen can arrest.

The Model Penal Code allows the use of dea.dly force by a pr-ivate person in making arrests only when that person believes he is assisting a peace officer.

On balance, staff believes that cieputization of licensee guards to gain a debatable arrest advantage is not desirable because (a) it is not available in all jurisdictions; (b) it makes the guards subject to all restrictions placed on State policE~ officers under the Fourteenth Amendment (such as warning on arrest and before questioning), and (c) makes the guard subject to suit for unreasonable detention, or to criminal and civil penalties for violation of civil rights under color of State law.

, __ (see, e.g., 18 U.S.C. 242; 42 U.S.C. 1983; Williams v. United States, 341 U.S. 97 (1951); Griffin v. Maryland, 378 U.S. 130 (1964); United States

v. Hoffman, 498 F.2d 879 (1974)).

6.

DOE instructions on "use of deadly force" a re equivocal.

Authority to use deadly force *is not demonstrably different from that of private guards at licensee facilities, i.e, privileged when the user has a reasonable belief that it is necessary in self-defense or in the defense of others.

In the last analysis, DOE has stated, "Each case calls for the exercise of sound judgment by the guard on the application of general guidance to all the facts and circumstances which confront him at the time such a decision must be made.

(Report from Robert J. Ghetti to H. E. Lyon, ERDA, dated September 30, 1975.)

The new guard force response rule gives more clear-cut guidance to the guards.

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