TITLE 18 > PART I > CHAPTER 67 > § 1385
§ 1385. Use of Army and Air Force as posse comitatus
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.
“You cannot invade the mainland United States. There would be a rifle behind every blade of grass.” – Admiral Isoroku Yamamoto WWII
Washington, DC – -(AmmoLand.com)- It seem that readers of our recent post about honest Americans buying enough guns to outfit the current active army’s of China and India have been having trouble finding the hard data and facts to substantiate this article.
Here is the link to the NICS: The National Instant Criminal Background Check System.
As reported earlier each of the last few months has been a record for firearm purchases or sales in the USA with a record 1,529,635 background checks being performed in March of 2009 alone. Firearm Sales Continue to Climb in March 2009
Chinese and Indian Standing Army Numbers:
NSSF, founded in 1961, is the trade association for the firearms, ammunition and recreational shooting sports industry. It promotes the safe ownership and responsible use of products its members make and sell. For more information, visit http://www.nssf.org.
The National Instant Criminal Background Check System, or NICS, is all about saving lives and protecting people from harm—by not letting guns and explosives fall into the wrong hands. It also ensures the timely transfer of firearms to eligible gun buyers.
Mandated by the Brady Handgun Violence Prevention Act of 1993 and launched by the FBI on November 30, 1998, NICS is used by Federal Firearms Licensees (FFLs) to instantly determine whether a prospective buyer is eligible to buy firearms or explosives. Before ringing up the sale, cashiers call in a check to the FBI or to other designated agencies to ensure that each customer does not have a criminal record or isn’t otherwise ineligible to make a purchase. More than 100 million such checks have been made in the last decade, leading to more than 700,000 denials.
NICS is located at the FBI’s Criminal Justice Information Services Division in Clarksburg, West Virginia. It provides full service to FFLs in 30 states, five U.S. territories, and the District of Columbia. Upon completion of the required Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Form 4473, FFLs contact the NICS Section via a toll-free telephone number or electronically on the Internet through the NICS E-Check System to request a background check with the descriptive information provided on the ATF Form 4473. NICS is customarily available 17 hours a day, seven days a week, including holidays (except for Christmas). See below for more facts and forms.
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OVERVIEW OF THE POSSE COMITATUS ACT
This appendix provides a broad overview of the Posse Comitatus Act, which restricts the participation of the military in domestic law enforcement activities under many circumstances.
The origins of “posse comitatus” are to be found in domestic law. Black’s Law Dictionary defines the term “posse comitatus” as:
the power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assis- tance in certain cases as to aid him in keeping the peace, in pursu- ing and arresting felons, etc.1
The Posse Comitatus Act, 18 U.S. Code, Section 1385, an original intent of which was to end the use of federal troops to police state elections in former Confederate states, proscribes the role of the Army and Air Force in executing civil laws and states:
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
1Lujan (1997) notes that the commander of JTF-LA mistakenly believed his activities were subject to Posse Comitatus restrictions when they were not.
244 Preparing the U.S. Army for Homeland Security
to execute the laws shall be fined not more than $10,000 or impris- oned not more than two years, or both.2
According to Lujan (1997), the Air Force was added to the original language in 1956. Although the Navy and Marine Corps are not included in the act, they were made subject to it by DoD Regulation (32 C.F.R. Section 213.2, 1992).
KEY EXCEPTIONS TO THE POSSE COMITATUS ACT
A summary of key exceptions to the Posse Comitatus Act follows:3
• National Guard forces operating under the state authority of Title 32 (i.e., under state rather than federal service) are exempt from Posse Comitatus Act restrictions.
• Pursuant to the presidential power to quell domestic violence, federal troops are expressly exempt from the prohibitions of Posse Comitatus Act, and this exemption applies equally to active-duty military and federalized National Guard troops.4
• Aerial photographic and visual search and surveillance by mili- tary personnel were found not to violate the Posse Comitatus Act.
• Congress created a “drug exception” to the Posse Comitatus Act. Under recent legislation, the Congress authorized the Secretary of Defense to make available any military equipment and per- sonnel necessary for operation of said equipment for law
2The language of the Posse Comitatus Act was further amended by congressional action reflected in P.L. 103-322 (1994).
3For further details, the reader is directed to: Lujan (1997); Department of the Army (undated); and to the notes of various court decisions refining the interpretation of the Posse Comitatus Act. For the latter, see United States Code, Title 18, Crimes and Criminal Procedures, Sections 1361 to 1950 2000 Cumulative Annual Pocket Part, St. Paul, Minn.: West Group, 2000, pp. 13–17.
410 U.S. Code Sections 331 through 334 provide guidance. Section 332 states: “When- ever the President considers the unlawful obstructions, combinations, or assemblages, or rebellion against the United States, makes it impracticable to enforce the laws of the United States in any state or territory by the ordinary course of judicial proceedings, he may call into federal service such of the militia of any state, and use such of the armed forces to suppress the rebellion” (Lujan, 1997).
Overview of the Posse Comitatus Act 245
enforcement purposes. Thus, the Army can provide equipment, training, and expert military advice to civilian law enforcement agencies as part of the total effort in the “war on drugs.”
• Use of a member of the Judge Advocate Corps as a special assis- tant prosecutor, while retaining his dual role in participating in the investigation, presentation to the grand jury, and prosecu- tion, did not violate Posse Comitatus Act.
• The Coast Guard is exempt from Posse Comitatus Act during peacetime.
• Although brought under the Act through DoD regulation, described above, the Navy may assist the Coast Guard in pursuit, search, and seizure of vessels suspected of involvement in drug trafficking.
IMPLICATIONS FOR ARMY HOMELAND SECURITY ACTIVITIES
There is a rather diverse range of potential activities engendered in each of the homeland security task areas—domestic preparedness, COG, border and coastal defense, and continuity of operations—that may involve circumstances in which the Army is asked to assist domestic law enforcement. Accordingly, it is critical that the Army develop doctrine, leadership, and training programs that can provide clear and specific guidance on when and how the Posse Comitatus Act—as well as any other laws that proscribe Army activities in the domestic arena—applies and when it does not.
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