There are four types of pretrial restraint:
1) conditions on liberty,
2) restriction in lieu of arrest,
3) arrest, and
4) confinement.
See R.C.M. 304.
1) Conditions on liberty are “orders directing a person to do or refrain from doing specified acts.” These are sometimes called ‘stay-away’ orders and are basically moral restraints. No physical confinement is involved.
2) Restrictions in lieu of arrest are “orders directing the person to remain within specified limits.” These individuals normally perform full military duties. No physical confinement is involved.
3) Arrest is “the restraint of a person by oral or written order not imposed as punishment, directing the person to remain within specified limits.” These individuals may not be required to perform full military duties such as supervising, serving as guard, or bearing arms. They may be required to do ordinary cleaning or policing or to take part in routine training and duties. Again, no physical confinement is involved.
4) Confinement is physical restraint. This is called “pretrial confinement” and is specifically addressed in R.C.M. 305. This is physical confinement which deprives a person of his liberty and freedom.
Note: Restraint in lieu of arrest, arrest, and confinement begin the 120-day speedy trial clock. See R.C.M. 707(a)(2). Conditions on liberty do not begin the speedy trial clock.
Who may order the restraint of personnel?
1) Of officers—only commanding officers to whose authority the officer is subject. This authority may not be delegated.
2) Of enlisted personnel—any commissioned officer. This may be delegated by the commanding officer to warrant, petty, and non commissioned officers in the command.
Who may be restrained? No one may be ordered into any kind of restraint unless probable cause exists. Probable cause exists when there is a reasonable belief that:
1) An offense triable by court-martial has been committed;
2) The person to be restrained committed the offense; and
3) The restraint ordered is required by the circumstances.
*Any restraint absent these three criteria is unlawful.
Who may physically restrain personnel? If military police are unable or unwilling to guard personnel, any soldier may do so as long as he or she is competent in the duty assigned. Commanders must ensure this happens because the unauthorized release of a prisoner is a punishable offense under the UCMJ. See Article 96, UCMJ.
Defensive restraint. This concept is covered in R.C.M. 916 and is outside the scope of this post. Basically, an individual has the right to restrain an assailant if that individual believes that such restraint is necessary to keep himself or another from some harm about to be inflicted by the individual restrained.
