KOMMONSENTSJANE

Posted on July 21, 2015 by kommonsentsjane

Is this leader violating the Posse Comitatus Act in placing soldiers in our towns and cities?

Posse Comitatus Act

Enacted by the 45th United States Congress

Effective June 18, 1878

Legislative history
Passed the House on May 18, 1878 (130–117)
Passed the Senate on June 7, 1878 (29–21) with amendment
House agreed to Senate amendment on June 15, 1878
Signed into law by President Rutherford B. Hayes on June 18, 1878

Welcome to Legal Update

The Act

The Act: The so-called “Posse Comitatus Act” provides, in part; “[w]hoever, 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.” (18 U.S.C. § 1385)

“Posse” means “to be able,” or “to have power.” “Comitatus” means “county.” At common law, “Posse Comitatus” referred to the power of the sheriff to summon aid from every male in the county over 15 years of age and not infirm to assist in preserving the peace. (See People v. Bautista (2004) 115 Cal.App.4^th 229, 233, fn. 2.)

Some states, including California, still retain one form or another of this power. (See P.C. § 150; making it an infraction for any able-bodied person over the age of 18 to fail to assist a law enforcement officer requesting such assistance.)

Purpose

Purpose: The federal Act was enacted to prevent the use of military personnel to help enforce civilian law, thus preventing the U.S. Government from becoming “a government of force,” i.e., run by the military. (People v. Bautista, supra, at p. 233, fn. 2.)

In 1981, Congress amended the Posse Comitatus Act to allow for certain military assistance in fighting the war on drugs. (See 18 U.S.C. §§ 371-378) However, these statutes were specifically “not [to] include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.” (18 U.S.C. § 375)

“[R]egular and systematic assistance by military investigative agents to civilian law enforcement in the investigation of local drug traffic” raises issues as to whether the “Posse Comitatus Act” has been violated. (People v. Blend (1981) 121 Cal.App.3^rd 215, 228.)

The Posse Comitatus Act is a United States federal law (18 U.S.C. § 1385, original at 20 Stat. 152) signed on June 18, 1878 by President Rutherford B. Hayes. The purpose of the act – in concert with the Insurrection Act of 1807 – is to limit the powers of the federal government in using its military personnel to act as domestic law enforcement personnel. It was passed as an amendment to an army appropriation bill following the end of Reconstruction, and was subsequently updated in 1956 and 1981.

The Act only specifically applies to the Army and, as amended in 1956, the Air Force. While the Act does not explicitly mention the naval services, specifically the Navy and the Marine Corps, the Department of the Navy has 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 National Guard under state authority from acting 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 either, primarily because although the Coast Guard is an armed service, it also has both a maritime law enforcement mission and a federal regulatory agency mission.

The original Posse Comitatus Act referred essentially to the United States Army. The United States Air Force was added in 1956, and the United States Navy and the United States Marine Corps have been included by a regulation of the United States Department of Defense. This law is often relied upon to prevent the Department of Defense from interfering in domestic law enforcement. The United States Coast Guard is not included in the Act even though it is one of the five armed services because it is not a part of the Department of Defense. At the time the Act became law, the Coast Guard was part of the United States Department of the Treasury, and was thus exempt.

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