By Sarah Lustbader
“After 147 years, California residents are now free to turn down law enforcement officials who ask for help with an arrest,” reported Jacey Fortin for the New York Times last week. “A law, the California Posse Comitatus Act of 1872, had previously made it a misdemeanor, subject to a fine, for an able-bodied adult to refuse to help officials with tasks like apprehending an escaped prisoner or preventing ‘any breach of peace.’” It hadn’t been invoked in recent years, and a bill removing it was signed by Governor Gavin Newsom on Aug. 30.
At first blush, this may seem like nothing more than some legal housekeeping. As Bob Hertzberg, the bill’s sponsor, said, “We write so many damn laws all the time. It was time to take some off the books.”
However, the history of posse comitatus is illuminating, not only about the way local and federal law enforcement was, but the way it is today. The Latin phrase “posse comitatus” is usually translated as “force of the county.” Since Anglo-Saxon England, local law enforcement officials have had the authority to summon civilians to keep the peace. This has been one of the core powers of the sheriff, which many have wielded with nearly unlimited discretion. In the U.S., posse comitatus has been a way for local sheriffs to try to maintain order where law enforcement was informal or poorly funded, as it was during the 19th century on Western frontiers.
When it took effect, the Posse Comitatus Act of 1872 was a way for Southern states to resist Reconstruction-era laws, according to history professor Gautham Rao. “This was basically carte blanche for Jim Crow violence,” he told the New York Times, adding, “the people against whom posse comitatus is often used tend to be the less empowered,” such as Black people, workers on strike, fringe political groups, and immigrants. “On March 7, 1965—known as Bloody Sunday—members of a posse for the segregationist sheriff /click?u=8df91532e55f25ed5dd237f56&id=5301306763&e=0b0708c91e” data-saferedirecturl=”https://www.google.com/url?q=https://theappeal.us15.list-manage.com/track/click?u%3D8df91532e55f25ed5dd237f56%26id%3D5301306763%26e%3D0b0708c91e&source=gmail&ust=1568248863292000&usg=AFQjCNHmZh3DNc80VCQhoJd8vmAHvV18Kw”>Jim Clark in Alabama joined state troopers to attack Black civil rights activists who tried to cross the Edmund Pettus Bridge in Selma en route to Montgomery,” Fortin writes. “In 2012, a volunteer member of a posse for Joe Arpaio, then the sheriff of Maricopa County, Ariz., accompanied a deputy on a trip to Hawaii to question officials there about Barack Obama’s birth certificate.”
But even before 1872, posse comitatus was used to force Northern civilians to capture people trying to escape slavery and return them to slavery in the South, under the Fugitive Slave Act. “The Fugitive Slave Act of 1850 expressly gave federal marshals the power to summon a posse to apprehend runaway slaves,” writes scholar David Kopel, which to many Northerners felt like an outrageous incursion. “The posse comitatus was supposed to be the people of the county participating in self-government by enforcing their own laws. Now, federal posse comitatus had been perverted into a weapon that transformed free citizens into the minions of distant slave-owners.”
The federal standing army itself was sometimes used as a posse comitatus, Kopel writes, “under the preposterous fiction that the soldiers were just volunteers who in their capacity as civilians were assisting the federal marshal.” During Reconstruction, the federal army was used as a posse comitatus in the South. “Finally in 1878, Congress passed the Posse Comitatus Act, to forbid use of the army in law enforcement, except when expressly authorized by Congress.” That law is still on the books, but it has been “seriously weakened by loopholes created for the ‘drug war,’ beginning with the Reagan administration.”
The weakening of this law has meant that the idea of posse comitatus has contributed to increased militarization of traditional law enforcement. Although this trend was especially evident during the “war on drugs,” Kopel writes in an academic article that this influence can also be seen in military-civilian joint task forces, the enforcement of immigration and customs laws, routine uses of SWAT teams to execute ordinary drug warrants, and in high-profile incidents such as the 1993 seige on the Branch Davidian compound near Waco, Texas.
The idea of posse comitatus has also been invoked at the local level by a group of renegade sheriffs who call themselves “constitutional sheriffs.” The group started in the 1970s in California by William Potter Gale, who, according to Ashley Powers, “preached that the Constitution was a divinely inspired document intended to elevate whites above Jews and racial minorities.” Powers wrote in the New Yorker that Gale “railed against civil-rights laws, the income tax, the United Nations, and the showering of tax dollars on foreign allies. He believed that a conservative posse comitatus offered a solution.” He wrote, “The county Sheriff is the only legal law enforcement officer in the united states of america! The Sheriff can mobilize all men between the ages of 18 and 45 who are in good health and not in the Federal military service. Others can volunteer, women included… The title of this body is posse comitatus.” The idea caught on throughout the country. “A few turned violent,” Powers writes. “Posse members assaulted an I.R.S. agent in Wisconsin, tried to ‘arrest’ a cop in Idaho, and nearly provoked a shoot-out in a California tomato field.”
In California, at least, residents no longer have to worry about being conscripted by law enforcement. Sheriffs are, predictably, disappointed. Cory Salzillo, legislative director of the California State Sheriffs’ Association, said of the recent bill that took posse comitatus off the books, “We fear that the bill sort of discourages the notion that people should help out law enforcement if they need to be assisted.” Salzillo said that he was not familiar with any recent case in which someone was prosecuted for failing to help a law enforcement officer. Still, according to the Sacramento Bee, in 2014, a county successfully cited posse comitatus to justify an incident when a sheriff asked two residents of a remote town to investigate a 911 call from a neighbor. They walked in on a murder scene, and were attacked.
Article originally appeared in the Appeal.