PART H: THE RESTRICTIONS IMPOSED BY THE POSSE COMITATUS ACT ON THE
EXERCISE OF LAW ENFORCEMENT POWERS OFF POST
1.
General.
18 USC Section 1385 states: "Whoever, except in cases and under
circumstances expressly authorized by the Constitution for 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 not more than ,000 or imprisoned
not more than two years, or both." This is closely followed by the Department of
the Navy as well: "Members of the Naval service shall not, in their official
capacity, enforce or execute local, state, or federal civil laws."
(SECNAVINST.
5820.7; 15 May 74.)
This law was originally enacted in 1878. After the Civil War, federal troops
were regularly used to enforce the Reconstruction Acts.
There was also "strong
resentment of the use of federal troops to guard voting places in the South during
the 1876 Presidential Election."
(DA Pam 27-21, paragraph 3-4b.)
"The
proscriptions of the act apply to the enforcement of federal, state, or local law."
(DA Pam 27-21, paragraph 3-4b.)
The law reflects the fact that "under the
Constitution and laws of the United States, the protection of life and property and
the maintenance of law and order within the territorial jurisdiction of any state
are the primary responsibility of local and state governments, and the authority to
enforce the laws is vested in the authorities of those governments." (DA Pam 27-
21, paragraph 3-7.)
In other words, the enforcement of the civil law is the
responsibility of the civil law enforcement authorities, not the U.S. Army. This
same policy is also expressed in DOD Dir. 3025.12, August 19, 1971, as well as in
AR 500-50, paragraph 1-3a: "The protection of life and property an the maintenance
of law and order within the territorial jurisdiction of any state are the primary
responsibilities of state and local civil authorities."
2.
Exceptions.
a. Off duty. The Act does not apply to military members "when off-duty and
in a private capacity."
A soldier is not acting in a private capacity, however,
"when assistance to law enforcement officials is rendered under direction, control,
or suggestion of DOD authorities."
The Act similarly does not apply to civilian
employees, unless they are acting "under direct command and control of a military
officer." (AR 500-51, paragraph 3-2(c) and (d).)
b. Reservists and national guardsmen. The Act does not apply to members of a
Reserve Component "when not on active duty or active duty for training." Also, it
does not apply to members of the national guard "when not in federal service." (AR
500-51, paragraph 3-2(a) and (b).
c. Military purpose. The Act does not prohibit "actions taken for furthering
a military or foreign affairs function of the United States, regardless of
incidental benefit to civilian authorities." (AR 500-51, paragraph 3-4a.)
MP1018
1-38
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