posse comitatus


Also found in: Dictionary, Thesaurus, Encyclopedia, Wikipedia.

Posse Comitatus

[Latin, Power of the county.] Referred at Common Law to all males over the age of fifteen on whom a sheriff could call for assistance in preventing any type of civil disorder.

The notion of a posse comitatus has its roots in ancient English Law, growing out of a citizen's traditional duty to raise a "hue and cry" whenever a serious crime occurred in a village, thus rousing the fellow villagers to assist the sheriff in pursuing the culprit. By the seventeenth century, trained militia bands were expected to perform the duty of assisting the sheriff in such tasks, but all males age fifteen and older still had the duty to serve on the posse comitatus.

In the United States, the posse comitatus was an important institution on the western frontier, where it became known as the posse. At various times vigilante committees, often acting without legal standing, organized posses to capture wrongdoers. Such posses sharply warned first-time cattle rustlers, for instance, and usually hanged or shot second-time offenders. In 1876 a four-hundred-man posse killed one member of the infamous Jesse James gang and captured two others.

In 1878 the use of a posse comitatus was limited by the passage of the Posse Comitatus Act of 1878. This act, passed in response to the use of federal troops to enforce reconstruction policies in the southern states, prohibited the use of the U.S. Army to enforce laws unless the Constitution or an act of Congress explicitly authorized such use. This act was amended five times in the 1980s, largely to allow for the use of military resources to combat trafficking in illicit narcotics.

Though rarely used, the posse comitatus continues to be a modern legal institution. In June 1977, for example, the Aspen, Colorado, sheriff called out the posse comitatus—ordinary citizens with their own weapons—to hunt for escaped mass murderer Theodore ("Ted") Bundy. Many states have modern posse comitatus statutes; one typical example is the Kentucky statute enacted in 1962 that gives any sheriff the power to "command and take with him the power of the county or a part thereof, to aid him in the execution of the duties of his office" (Ky. Rev. Stat. Ann. § 70.060 [Baldwin 1996]).

"Posse Comitatus" is also the name taken by a right-wing, antitax extremist group founded in 1969 by Henry L. Beach, a retired dry cleaner and one-time member of the Silver Shirts, a Nazi-inspired organization that was established in the United States after Adolf Hitler came to power in Germany. The group operated on the belief that the true intent of the founders of the United States was to establish a Christian republic where the individual was sovereign. Members of the group were united by the belief that the federal government was illegitimate, being operated by Jewish interests through the Internal Revenue Service, the federal courts, and the federal reserve. The Posse Comitatus received widespread media attention in 1983 when a leader of the group, Gordon Kahl, was involved in a violent standoff with North Dakota law enforcement officers. Convicted for failure to pay taxes and then for violating the terms of his Probation, Kahl shot and killed three officers and wounded three others before being shot and killed himself.

Further readings

Corcoran, James. 1990. Bitter Harvest. New York: Viking.

Hasday, Jill Elaine. 1996. "Civil War as Paradigm: Reestablishing the Rule of Law at the End of the Cold War." Kansas Journal of Law and Public Policy 5.

Malcolm, Joyce Lee. 1994. To Keep and Bear Arms. Cambridge: Harvard Univ. Press.

posse comitatus

(pahs-see coh-mitt-tah-tus) n. from Latin for "possible force," the power of the sheriff to call upon any able-bodied adult men (and presumably women) in the county to assist him in apprehending a criminal. The assembled group is called a posse for short.

posse comitatus

‘the power of the county’. The sheriff was able to call together able-bodied men to keep the peace. The institution transplanted to the USA, thence into ordinary parlance: ‘round up a posse’.

POSSE COMITATUS. These Latin words signify the power of the county.
     2. The sheriff has authority by the common law, while acting under the authority of the writ of the United States, commonwealth or people, as the case may be, and for the purpose of preserving the public peace, to call to his aid the posse comitatus.
     3. But with respect to writs which issue, in the first instance, to arrest in civil suits, the sheriff is not bound to take the posse comitatus to assist him in the execution of them: though he may, if he pleases, on forcible resistance to the execution of the process. 2 Inst. 193; 3 Inst. 161.
     4. Having the authority to call in the assistance of all, it seems to follow, that he may equally require that of any individual; but to this general rule there are some exceptions; persons of infirm health, or who want understanding, minors under the age of fifteen years, women, and perhaps some others, it seems, cannot be required to assist the sheriff, and are therefore not considered as a part of the power of the county. Vin. Ab. Sheriff, B.
     5. A refusal on the part of an individual lawfully called upon to assist the officer in putting down a riot is indictable. 1 Carr. & Marsh. 314. In this case will be found the form of an indictment for this offence.
     6. Although the sheriff is acting without authority, yet it would seem that any person who obeys his command, unless aware of that fact, will be protected.
     7. Whether an individual not enjoined by the sheriff to lend his aid, would be protected in his interference, seems questionable. In a case where the defendant assisted sheriff's officers in executing a writ of replevin without their solicitation, the court held him justified in so doing. 2 Mod. 244. Vide Bac. Ab. Sheriff, N; Hamm. N. P. 63; 5 Whart. R. 437, 440.

References in periodicals archive ?
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.
Part II explicates the law and history of the posse comitatus from Anglo-Saxon times to the present.
The Posse Comitatus Act provided the legal foundation for separating policing from military operations.
Debate over Posse Comitatus is made moot in light of the fact that there are nearly 150,000 armed federal agents who can now essentially conscript state and local police agencies.
The Posse Comitatus Act does not apply to National Guard units when performing law enforcement functions under the direction of their Governor or if loaned out to a neighboring state.
Kealy, Reexamining the Posse Comitatus Act: Toward a Right to Civil Law Enforcement, 21 YALE L.
Additionally, the Stafford Act does not provide statutory exception to the Posse Comitatus Act.
Mainstream media even ignored the Merton Center's discussion of the Posse Comitatus Act banning the use of federal military personnel for law enforcement within the United States.
The Posse Comitatus Act of 1878 generally prohibits the military from law enforcement activities within the United States.
The militarization of policing due to an amplification of national security threats has been discernable since at least the late 1970s, when the "War on Drugs" eventually led Congress to amend the 1878 Posse Comitatus Act (PCA), which had hitherto maintained a clear delineation between police and soldiers.
Yoo, then a Justice Department lawyer, explained how Bush could ignore the Fourth Amendment and the Posse Comitatus Act and deploy the military within the United States in "anti-terrorist operations.
Politicians are now demanding answers, wondering how close the military is to violating the Posse Comitatus Act, the 1878 federal law passed after Reconstruction to prevent federal troops from conducting domestic law enforcement.