Legal Question Does a federal law agencies presence or a Special State Police task force violate the Posse Comitatus Act?
By Earl Lofland
To properly examine whether the federal government or state government has violated the posse comitatus Act, first the definition of the Posse Comitatus must be examined and the history behind the term.
1. The ‘Posse’ as it was known in 16th century England was derived from two latin words Posse is defined in scholastic Latin to mean “potentiality, capability” (US) A group of people summoned to help law enforcement
2. and Comitatus is the plural for committee, board in the plural comitātus (genitive comitātūs); m, fouth declension, meaning company of soldiers the word comitatus etiology is from another latin word comes meaning companion the etiology of the word comes (genitive comitis); m,f is a companion, comrade, partner. A Count or an Earl the plural form of this comitatus is defined as: a group of warriors or nobels accompanying a king or other leader
The phrase Posse comitatus or sheriff's posse is originally a common-law or statute law authority of a county sheriff to conscript any able-bodied males t assist him in keeping the peace or to pursue and arrest a felon In accordance to Winchester, 13 Edw.I cc. 1 and 4, (1285) anyone, either a Constable or a private citizen, witnessing a crime shall make “hue and cry”, and that the hue and cry must be kept up against the fleeing criminal from town to town and county to county, until the felon was apprehended and delivered to the sheriff. All able-bodied men, upon hearing the shouts, were obliged to assist in the pursuit of the criminal. Hue and Cry was the original concept for the phrase posse comitatus The word Posse Comitatus .Originally found in English common law, it is generally obsolete; however, it survives in America, where it is the law enforcement equivalent of summoning a militia for military purposes
See Oxford English Dictionary s.v. "posse n. 2, posse comitatus.
(See All the Posse of Hell, cannot violently eject me." T. Fuller, Good Thoughts in Bad Times (1645) I. xv. 39. "A whole posse of the young lady's kindred—brothers, cousins and uncles—stood ready at the street door to usher me upstairs." W. Beckford Portuguese Jrnl. 10 June 1787, p. 72.
During the early stages of the English Civil War (1642) local forces were employed everywhere by the Crown for all able bodied males. They produced valid written authority, inducing them to assemble as a Militia.
This is what would be considered as an All Volunteer Militia today. A body of men who were not a part of a regular army nor paid by the Crown as such. Different than what is defined today as the National Guard, Reserves or Active members of any branch of the US Military.
The Sheriff was a royal official responsible for the keeping of the peace (“a reeve” for the Shire or county on behalf of the Crown. The Sheriff in the Definition of the States Constitution is defined an elected office working for the people of a County, with a paid salary and, a skeleton staff preventing the government from having to levy heavy taxes, for the sheriff to perform his official duties.
In the event criminal activities occurred, the sheriff would then muster a “Posse” to apprehend the criminal. This posse was an all volunteer body, under the authority of the Sheriff and the government to quell any violence or felonious criminal activities. Once the criminal was apprehended and handed over to the Sheriff, the Posse was then disbanded, and the judicial due process of laws would commence for the accused; where they were then brought before the magistrate and their charges would be tried by a jury of their peers. These peers were also made up of the body of citizens whom were within the jurisdiction where the crime occurred.
The powers of sheriffs for posse comitatus were codified by section 8 of the Sheriffs Act 1887 Section (1):
“Every person in a county shall be ready and apparelled at the command of the sheriff and at the cry of the country to arrest a felon whether within a franchise or without, and in default shall on conviction be liable to a fine, and if default be found in the lord of the franchise he shall forfeit the franchise to the Queen, and if in the bailiff he shall be liable besides the fine to imprisonment for not more than one year, or if he have not whereof to pay the fine, than two years.”See Section 8 (1), Sheriffs Act 1887
Though Posse Commitatus was established under civil law. It also would apply in the event the government required able bodied men to be mustered for a war or acts of treason against the Crown.
on June 18, 1878, after what was known as the Reconstruction era, with the intention of substantially limiting the powers of the federal government and its use of the military for law enforcement. Posse Comitatus Act was passed and signed into Law. This in Combination with the The on June 18, 1878, after what was known as the Reconstruction era, with the intention of substantially limiting the powers of the federal government and its use of the military for law enforcement. Posse Comitatus Act was passed and signed into Law. This in Combination with the The Insurrection Act of 1807 is the set of laws that govern the US President’s ability to deploy troops within the United States to put down lawlessness, Insurrection and rebellion . The combination of these laws are chiefly contained in 10 USC §331-10 USC §335 are to limit Presidential power as much as possible, relying on state and local governments in accordance to the principles related around the Kentucky Virginia Resolution and Amendments IX and X for response in the event of insurrection.
Coupled with the Posse Comitaus Act the powers of the President for law enforcement are theoretically to be limited, and delayed.
In in 1956 the Posse Comitatus Act was Amended 18 USC § 1385
Use of Army and Air Force as posse comitatus
"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both".
The Act prohibits members of the Army and Air Force from exercising nominally state law enforcement, police or peace officer powers that maintain “law and order” on non-federal property (States, counties and their municipal divisions) within the United States.
In 2007 The Defense Authorization Bill was passed, with over $500 billion allocated to the military, and contained changes to the Insurrection Act of 1807, by a bipartisan majority of both houses of Congress: 398-23 in the House and by unanimous consent in the Senate.
For military forces to be used under the provisions of the revised Insurrection Act, the following conditions must be met: the Bill read:
(1) The President may employ the armed forces, including the National Guard in Federal service, to--
(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that--
(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and
(ii) such violence results in a condition described in paragraph (2); or
(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).
(2) A condition described in this paragraph is a condition that--
(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
Though the Bill was repealed in 2008 the 2008 bill amended the original wording of the Act required the conditions as worded in Paragraph (2), above, to be met as the result of
insurrection, domestic violence, unlawful combination, or conspiracy
The new wording of the Act, as amended, still requires the same conditions as worded in Paragraph (2), above, but those conditions could, after the changes, also be a result of
natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition
and only if
domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order.
Though this has been repealed completely in HB 5122
There is still 10 USC § 332: Use of militia and armed forces to enforce Federal authority “Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion. ”
Does an employee of the federal government constitute the definition of “Standing army?”
“The President isn’t required to need a state of emergency to call out federal forces. In fact NORTHCOM has “maturing relationships with agencies inside our country, the FBI for instance.” (See Mullen Praises Northern Command’s Interagency Efforts by Jim Garamone American Forces Press Service March 11, 2008)
NORTHCOM includes a task force which consists of active, Guard and Reserve military members drawn from all service branches, as well as civilian personnel, who are commanded by a federalized National Guard general officer.
“The Posse Comitatus Act is often cited as a major constraint on the use of the military services to participate in “homeland security”, “counterterrorism”, “civil disturbances, and similar domestic duties”. It is widely believed that this law prohibits the Army, Navy, Air Force, and Marine Corps from performing any kind of police work or assisting law enforcement agencies to enforce the law. This however, is not exactly correct. The biggest error is the common assertion that the Posses Comitatus Act was enacted to prevent the military services from acting as a national police force."
“What is correct is that new rules are needed to clearly set forth the boundaries for the use of federal military forces for homeland security. The Posse Comitatus Act is inappropriate for modern times and needs to be replaced by a completely new law.” (See The Posse Comitatus Act and Homeland Security by John R. Brinkerhoff
Mr Brinkerhoff went on to say; “Sinnreich, Trebilcock, Bolduc, and most commentators who opine on this law are wrong. The Posse Comitatus Act was not, as they assert and as most people believe, enacted to prevent members of military services from acting as a national police force. It was enacted to prevent the Army from being abused by having its soldiers pressed into service as police officers (a posse) by local law enforcement officials in the post-Reconstruction South.” Id. The Posse Comitatus Act and Homeland Security John R Brinkerhoff Feb 2001
During the Ronald Reagan Years (1981 to 1983) Colonel John Brinkerhoff was acting associate director for national preparedness of the Federal Emergency Management Agency (FEMA), (Reagan Administration), a career senior executive in the Office of the Secretary of Defense. His last position before leaving OSD to joint FEMA was as acting deputy assistant secretary for reserve affairs. He was also director of manpower programming, director of intergovernmental affairs, and special assistant to the deputy assistant secretary of defense for reserve affairs. Before joining the civil service, Mr. Brinkerhoff served in the US Army for 24 years where he retired in 1974 of 24 years of active commissioned service in a variety of troop assignments: Korea, Germany, Vietnam, and the United States. He also served two tours on the Army Staff and two tours in OSD. From 1997- 2002 he was an adjunct research staff member of the Institute for Defense Analyses working on a variety of issues including Homeland Defense.
In order to define what constitutes a Standing Army compared to a ‘militia’ the history of the word Militia must be examined.
To have an understanding whether a federal employee of an agency such as the FBI, ATF or other agency would be considered a Standing army the word Militia must be properly defined, and what differences there are in a ‘regular military unit; and irregular militia and a “Regular Army”.
Militia derives from two Latin words:
• miles /miːles/ : soldier
• -itia /iːtia/ : a state, activity, quality or condition of being
In a book, Certain Discourses Military by Sir John Smythe (1590) it was definded as:
a military force; a body of soldiers and military affairs; a body of military discipline.
In England the word Militia derives from a common law tradition, and dates back to Anglo-Saxon times. The tradition was that all able-bodied males were liable to be called out to serve in one of two organizations. These were the posse comitatus, an ad hoc assembly called together by a law officer, (such as a Sheriff), to apprehend lawbreakers, and the fyrd which was a militia mustered from the districts threatened with attack. Service in the fyrd only had a short duration and the participants were expected to provide their own arms and provisions. Something recognized as volunteer service. The origins of the fyrd can be traced back to the Late 1500’s to early 1600’s. (See A History of the British Army, volume I J.W. Fortescue,). The militia become an important institution in English life. It was organized on the basis of the shire county, and was one of the responsibilities of the Lord Lieutenant, a royal official (usually a trusted nobleman or Sheriff).
Each Deputy Lieutenant (equivalent to a Deputy Sheriff) of the county hundreds, were responsible of who relayed orders to the justices of the peace or magistrates. Each parish furnished a quota of eligible men, whose names were recorded on muster rolls. Likewise, each household was assessed for the purpose of finding weapons, armor, horses, or their financial equivalent, according to their status. The militia was to be mustered for training purposes from time to time. Just as was written in Federalist No 29 for a militia in these Several States of America during the era of our founding generation. In 1820 the militia was transformed into a volunteer force seen as an alternative to the “Regular army”. Men would volunteer and undertake basic training for several months at an army depot. Afterwards, they were to return to civilian life. In the United States, a militia dates back the colonial era, and the American Revolutionary War. American revolutionaries took control of the militia system. Regulation of the militia was codified by the Second Continental Congress with the Articles of Confederation. The revolutionaries also created a full-time regular army—the Continental Army.
Due to manpower shortages, the militia provided short-term support to the regulars in the field throughout the war. (See "Mobilizing Armed Force in the American Revolution" John Shy, and The American Revolution: A Heritage of Change (Minneapolis, 1975), pp. 104–5 John Parker and Carol Urness,
The militia was also distinguished from the “Regular Army and “military service” whereas the latter was normally fixed commitment for a period of time to last at least a year, and would include a salary. Compared to the militia was mustered only in times to meet a threat, or prepare for an imminent threat, and would usually last for very short for periods of time. Militia persons normally provided their own weapons, equipment, and supplies, however at times they would be compensated for losses or expenditures. This would make the Militia acting in the spirit of what defines volunteerism,(In general terms, volunteering is the practice of people working on behalf of others or a particular cause without payment for their time and services).( See The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment, Valparaiso Law Review, vol. 26, number 1, page 131 (1991)
During the 1780s, James Madison helped convince the political leaders to call for a convention to replace the Articles of Confederation. Madison, due to his overall influence historians consider him the "Father of the Constitution."
Madison was elected to the United States House of Representatives when the Constitution was ratified, from his home state of Virginia, serving from the First Congress through the Fourth Congress. He like Thomas Jefferson was a member of the Democratic-Republican Party during his final term in the House. In 1798 and 1799, While most members of Congress, the President, John Adams, along with the majority of US Supreme Court members were Federalists. The central government decided to pass into law The Alien Seditions Act , whereas Thomas Jefferson, then elected as Vice President of the United States and James Madison wrote the Kentucky-Virginia Resolutions not to abide by the Act due to a constitutional question arising to argue that the Acts were unconstitutional and therefore void, and in doing so, they argued for states' rights and strict constructionism of the Constitution. They also seen this Act targeting the members who belonged to the minority party at the time, the Democrat-Republican Party who opposed the Quasi- war being funded by Congress, without actually declaring a war in Congress controlled by the Federalist body. Years later While Jefferson was the President, he removed nearly all of Mr. Adams' "midnight judges" from office, which led to the Supreme Court’s decision in Marbury v. Madison. This was done under the Constitutional Clause of Judges acting not acting in “Good Behavior” outlined in Article III § 1 of the US Constitution. Jefferson also began, and won the First Barbary War (1801–1805)Where, prior to the inauguration of Jefferson as President, Congress passed naval legislation that provided six frigates that ‘shall be officered and manned as the President of the United States may direct.' . . . In the event of a declaration of war on the United States by Yusuf Karamanli, the Pasha (or Bashaw) of Tripoli, the powers of Barbary., (In 1800, Federal revenues totaled a little over $10 million.) Putting his long-held beliefs for cessation of the tribute being demanded by Karamanli This ideal was also supported by George Washington and others. With the American navy in 1794 being re-commissioned and the resulting increased firepower on the seas, by 1801 it became increasingly possible for America to refuse paying tribute. However this long-standing ideal of paying tribute would continue until 1801 where President Jefferson refused the demand. Consequently, that May, the Pasha declared war on the U.S., in the customary Barbary manner of cutting down the flagstaff in front of the U.S. Consulate. Algiers and Tunis did not follow their ally in Tripoli. 'The ships commissioned, ships were to 'protect our commerce & chastise Tripoli’s insolence — by “sinking, burning or destroying their ships & Vessels wherever you shall find them.'".
During the Quasi War Congress authorized the president to seize vessels sailing to French ports. But President Adams, acting on his own authority and without the sanction of Congress, instructed American ships to capture vessels sailing either to or from French ports. Whereas the US Supreme Court Later ruled that. A Captain of the US Navy could indeed be sued for damages in the case. "In short," writes Louis Fisher in summary, "congressional policy announced in a statute necessarily prevails over inconsistent presidential orders and military actions. Presidential orders, even those issued as Commander in Chief, are subject to restrictions imposed by Congress." (See Little v. Barreme, 6 U.S. 2 Cranch 170 170 (1804))
In Federalist No 69, Alexander Hamilton explained the president's war powers and authority, it "would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the constitution under consideration would appertain to the Legislature."
In 1812, Having helped to win the nation’s independence American Civilians were again called upon by Congress and the President James Madison to defend their country. As the militia in the war of 1812, most notably in the siege and battle of new Orleans, which culminated on January 8, 1815. In that battle, General Andrew Jackson commanded not only regular military units, but also an irregular force composed of state militia from several southern states, New Orleans uniformed and irregular city militia mustered en masse from the City residents, a battalion of free men of color, frontiersmen, volunteers, Choctaw Indians, and a group of Baratarian Pirates (Privateers) fighting under Jean Lafitte See Robert V. Remini, The Battle of New Orleans: Andrew Jackson and America First Military Victory 2, 59, 133, (2001))
Although the performance of some untested irregular units were flawed, the irregulars marksmanship, local knowledge and other skills were proven invaluable as Jackson Defeated a much larger force of British Regulars (See Id. At 116, 146, 153-54, 162.)
Eerily Abraham Lincoln famously explained the principle this way:“Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose — and you allow him to make war at pleasure…. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, to-day, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, "I see no probability of the British invading us" but he will say to you "be silent; I see it, if you don't."
John Bassett Moore, born in Smyrna, Delaware, graduated at the University of Virginia in 1880, and admitted to the Delaware bar in 1883 took the first full professorship of international law at Columbia University explained the principle this way:
“There can hardly be room for doubt that the framers of the constitution, when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory, and killing their soldiers and citizens, all according to his own notions of the fitness of things, as long as he refrained from calling his action war or persisted in calling it peace.”
In 1898, during the Spanish American War an all volunteer militia known as the Texas Militiamen joined Theodore Roosevelt’s Rough Riders, (A Regular Army) The Texas Militia was formed during the Texas Revolution in 1836. Following the war, some of the militia units reorganized into what is known today as the Texas Rangers, originally was a private, volunteer effort for several years until it became an official organization.
Following the Spanish–American War of 1898, that demonstrated weaknesses in the militia, and in the entire U.S. military. The Militia Act of 1903 (32 Stat. 775), (also known as the Dick Act), was initiated by United States Secretary of War Elihu Root. According to the constraints and definitions of a Militia this Act violates the principles of a militia as the principles though out the history of a militia.
In this usage, a militia is a body of private persons who respond to an emergency threat to public safety, usually one that requires an armed response, but which can also include ordinary law enforcement or disaster responses. The act of bringing to bear arms contextually changes the status of the person, from peaceful citizen, to warrior citizen. The militia is the sum total of persons undergoing this change of state. Whereas “[v]olunteers were formed in militia units who came under the command of professional, usually British, officers and served in regular military units. While a few militias were organized into recognizable units, these militiamen rarely fought as members of defined units, nor were they expected to.” (See The Citizen-Solider under federal and State Law by James Biser Whisker, West Virginia Law Review 94 (1992): 949
An examination of the Militia and Army Clauses was undertaken on the eve of World War II by Frederick B. Wiener, a professor of law at Harvard University.  In that article, Wiener traced the history of militia and army [Page 949] relations, and gave an overview of the history of militias. Wiener was heavily influenced by the anti-militia military writings of Brevet Major General Emory (See Id. at 947, 949, Frederick B. Wiener, The Militia Clause of the Constitution, 54 HARV.L.REV. 181 (1940).
Elbridge Gerry, delegate from Massachusetts and later a leading Anti- Federalist, objected, arguing that the last clause might be used to disarm certain religious minorities. When proposed to the states the amendment read, "A well-regulated militia being necessary to the common defense, the right of the people to keep and bear arms shall not be infringed."(See 1 ANNALS OF CONG. 451 (Joseph Gales ed., 1789))
In the 2008 decision District of Columbia v. Heller (554 U.S. 570 (2008)), ruled by the US Supreme Court, the de jure definition of "militia" as used in United States jurisprudence was discussed. The court's opinion made explicit, in its obiter dicta that the term "militia", as used in colonial times in this originalist decision, included both the federally-organized militia and the citizen-organized militias of the several States: "... the 'militia' in colonial America consisted of a subset of 'the people'—those who were male, able-bodied, and within a certain age range" (7) ... Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them"(23).
Conclusion: Any agent or government official operating in the capacity of a federal agency other than those who are limited their powers, in time, and duty under Article 1 § 8 of the US Constitution i.e. FBI, ATF, IRS inter al. are considered a “Standing Army”, and Whereas the presence and operation of such agents and their agencies within a State is in violation of the Posse Comitatus Act, and the Insurrection Act of of 1807.