Robbins: What’s the Posse Comitatus Act? (column)
April 10, 2018
When most people think of these words — if they think of them at all — what likely comes to mind is the far-right social movement started in the late 1960s whose members embraced a conspiracy-minded, antigovernment, anti-Semitic message in the name of white Christians rights. Many Posse members practice survivalism which shapes the hub around which armed citizen militias have been formed.
The Posse Comitatus made national headlines when, in February, 1983, former Posse member, Gordon Kahl, killed two federal marshals who had come to arrest him in North Dakota and became a fugitive. Another shootout ensued in June of that year, in which Kahl and Lawrence County, Arkansas, Sheriff Gene Matthews were killed. Other members of the group have also been convicted of crimes ranging from tax evasion and counterfeiting to threatening the lives of IRS agents and judges.
As recently as Aug. 15, 2012, five Posse suspects were arrested in connection with the fatal shooting of two sheriff's deputies and wounding two others in St. John the Baptist Parish, Louisiana.
But let's modernize this a bit … by first going backwards.
A look back
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As you may know, President Donald Trump recently ordered national guard troops to our southern border and has promised that federal troops will follow. For exactly what purpose is unclear as, by the president's own reckoning, illegal border crossings are down. Way down. Bigly down. But, nonetheless … to the border they will go in teeming numbers. The first guard troops are on their way even as I write this. What they will do there, though, is anybody's guess. And this is where the Posse Comitatus Act enters stage right.
The Act was signed into law on June 18, 1878, by President Rutherford B. Hayes.
When I asked you to go back with me before we brought this forward, an interesting side note is in order. The presidential election of 1876 is known to history as the "fraud of the century."
Presaging the 2000 Bush-Gore debacle 100-some years later, Hayes lost the popular vote to Democrat Samuel J. Tilden but won an intensely disputed electoral college battle after a Congressional commission awarded Hayes 20 contested electoral votes. Like Bush-Gore, a century-plus later, the final political Armageddon came down to Florida, though "hanging chads" were not a thing then.
The result was the Compromise of 1877, in which the Democrats acquiesced to Hayes' election and Hayes withdrew remaining U.S. troops protecting Republican office holders in the South.
As George Santayana, philosopher, essayist, poet and novelist, famously observed, "Those who cannot learn from history are doomed to repeat it."
But I digress …
Back … and then forward … to the Act. But, bear with me, one last little side trip.
What do the words "posse comitatus" mean? They may be translated loosely as "the power or force of the country" and derive from a doctrine of ancient English common law authorizing a local sheriff to summon the assistance of able-bodied men to assist in keeping the peace, executing writs, quelling riots, capturing felons and enforcing other laws. Unlike an organized militia, a posse was gathered only as the need arose. "Come on, boys, saddle up." In the young United States, the tradition continued.
The purpose of the Act — in concert with the Insurrection Act of 1807 — is, however, to limit the powers of the federal government in using federal military personnel to enforce domestic policies within the United States. It was passed as an amendment to an army appropriation bill following the end of Reconstruction, and was subsequently updated in 1956 and 1981.
While the Act only specifically applies to the United States Army and, as amended in 1956, the United States Air Force, the Navy and Marine Corps have prescribed regulations that are generally construed to give the Act force with respect to those services as well.
The Act does not apply to the Army National Guard or the Air National Guard acting under state authority from engaging in a law enforcement capacity within its home state or in an adjacent state if invited by that state's governor. The United States Coast Guard, which operates under the Department of Homeland Security, is not covered by the Posse Comitatus Act.
In short, The Posse Comitatus Act makes it a crime to use the Army or Air Force (and, by extension, the Navy or Marines) as a domestic police force in most circumstances. So when the troops arrive — if arrive they do — they may "support" but may not arrest, enforce, or generally act in cop-like ways. In shorter short, one must wonder if the president's move is more political than practical. Or if, like Teddy Roosevelt's Great White Fleet of 1905, the troops hieing to the border represent little more than the flex of a presidential bicep.
Whatever the goal or end game, this much is clear; under the Posse Comitatus Act, the police powers of federal troops are severely constrained. Federal troops may not — under almost all circumstances — act as domestic cops.
The purpose? To protect us all from the overreach of the federal government, to secure us from the first radicles of despotism.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email, firstname.lastname@example.org.