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Posse comitatus or sheriff's posse is the common-law authority of a United States county sheriff to conscript any able-bodied male older than 18 to assist him in keeping the peace or to pursue and arrest a felon; compare hue and cry. It is the law enforcement equivalent of summoning the militia for military purposes.

Etymology

The term derives from the Latin posse comitatus, "power (force) of the county", but legally means a sort of local militia.

English Civil War

In 1642, during the early stages of the English Civil War, local forces were employed everywhere by all sides that could. They produced valid written authority, inducing them to assemble. The two most common authorities used were, on the side of the Parliament, its own recent "Militia Ordinance"; or that of the king, the old-fashioned "Commissions of Array". But the Royalist leader in Cornwallmarker, Sir Ralph Hopton, indicted the enemy before the grand jury of the county as disturbers of the peace, and had the posse comitatus called out to expel them.

United States

The power presumably continues to exist in those U.S. states that have not repealed it by statute, however. Resort to the posse comitatus figures often in the plots of Western movies, where the body of men recruited is frequently referred to as a posse. Based on this usage, the word posse has come to be used colloquially to refer to various teams, cliques, or gangs, often in pursuit of a crime suspect (on horseback in the Westerns), sometimes without legal authority. In a number of states, especially in the western United States, sheriffs and other law enforcement agencies have called their civilian auxiliary groups "posses." The Lattimer Massacre of 1897 illustrated the danger of such groups, and thus ended their use in situations of civil unrest. Some states provide for the posse by statute.

In the United Statesmarker, a Federal statute known as the Posse Comitatus Act forbids the use of the United States Army, and through it, its offspring, the United States Air Force as a posse comitatus or for law enforcement purposes. A directive from the Secretary of Defense prohibits the use of the United States Navy and United States Marine Corps for law enforcement. No such limitation exists on the United States Coast Guard, which can be used for all law enforcement purposes (for example, Coast Guardsmen were used as temporary Air Marshal for many months after the 9/11 attacks). The limitation also does not apply to the National Guard when activated by the Governor and operating in accordance with Title 32 of the U.S. Code (for example, National Guardsmen were used extensively by State Governors during Hurricane Katrina response actions). Conversely, the limitation would apply to the National Guard when activated by the President and operating in accordance with Title 10 of the U.S. Code.

This Act was almost thoroughly repealed by Public Law 109-364, or the "John Warner National Defense Authorization Act for Fiscal Year 2007" (H.R.5122) (2), which was signed by President George W. Bush on October 17, 2006, in a private Oval Office ceremony. This act allows the President to declare a "public emergency," station troops anywhere in America, and take control of state-based National Guard units without consent of the governor or local authorities, to "suppress public disorder."

Section 1076 of the massive Authorization Act, which grants the Pentagon another $500-plus-billion, is entitled, "Use of the Armed Forces in Major Public Emergencies." Section 333, "Major public emergencies; interference with State and Federal law" states that "the President may employ the armed forces, including the National Guard in Federal service, to 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 domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of ("refuse" or "fail" in) maintaining public order, "in order to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy."

This was repealed in 2008 by HR 4986: National Defense Authorization Act for Fiscal Year 2008. See Posse Comitatus Act and Insurrection Act.

The practical disuse of the posse comitatus, and its continued twilight existence as a theoretical legal power, is, like the militia, a subject for the debates about the meaning of the Second Amendment to the United States Constitution.

See also



References

  1. [1][2][3][4]
  2. W.Va. Code 56-3-18
  3. U. S. Code Title 10 and Title 32



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