06/11/2025
Posse Comitatus - crime scene or war zone or just terrible idea?
The use of the National Guard and, potentially, the Marines to respond to California domestic unrest over the objection of the state’s Governor implicates a long-standing prohibition against giving our federal military a domestic law enforcement mission. The 150-year old Posse Comitatus Act (18 USC 1835) codified that prohibition by outlawing the use of federal forces in local law enforcement. The concern is entirely understandable. The U.S. military are not typically trained or practiced in protecting the civil liberties enshrined in our Constitution, namely search & seizure, arrest, interrogation and domestic surveillance, so we should rarely ever give them the responsibility to dispense duties that implicate those liberties. What are their rules of engagement? Have they been trained to arrest or in the use of force in a law enforcement context? Do they know the Miranda warnings? That’s why the exception to the PCA (the Insurrection Act 10 USC 251) is so rarely used. In the early 1990’s, I was the staff director/chief counsel of the U.S. Senate’s Permanent Subcommittee on Investigations. In the wake of the 1995 Murrah Building bombing, we issued multiple reports reviewing these very issues analyzing the intersection of a military versus a law enforcement mission. Our shorthand question was “is it a crime scene or a war scene.” Even a massive explosion that killed 168 people, like the Murrah bombing, was strictly a job for local and federal police with the Guard, at the request of the governor, given only traditional search and recovery type functions.
Because the Guard this weekend was activated by President Trump and not the California Governor, their use is governed by the PCA and whether it legally fits within then narrowly drawn Insurrection Act exceptions will likely soon be decided by the courts. But the wisdom of calling in the Guard or even the Marines over the objection of the Governor is not a close call as they will only inflame an already volatile situation. I remember 55 years ago when our Nation watched in horror when the National Guard was called to quell student protests at Kent State. While they were summoned by the Governor in that instance, the tragic outcome is impossible to forget. Guardsman, untrained in use of force, fired 67 rounds over 13 seconds into a crowd of 2000 students. Four young people died and nine were wounded. While the disorder in L.A. is real, there is no reason to believe a modern big-city police force the size of the LAPD lacks the resources to take appropriate action. And certainly, they are better equipped to treat the job as a police function rather than a military operation.
(ai photo)