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Posse Comitatus—Positively Cohabitate

Posse Comitatus—Positively Cohabitate

Jared Kelly

Acts of police violence are common in today’s news. Police officers are no strangers to using violence to achieve their means.[1] In recent years, excessive police force has occurred in tandem with military-style weapons and tactics.[2] Particularly, the events that transpired in Ferguson, Missouri beginning in August 2014 attracted worldwide media attention.[3] Police used heavy-handed tactics and military equipment to quell protests.[4] Images from Missouri instilled a sense of fear and tension between the people of the United States and law enforcement officers, whose tactics mimicked those used in war against enemies.[5]

The United States has made a point to divide law enforcement tactics intended for civilians and those used in a war setting against enemies. The Posse Comitatus Act ensures that members of the Army and Air Force will not be used in civilian law enforcement.[6] The Posse Comitatus Act has not been extensively litigated, but state and federal courts have found that the Act does not forbid any and all interaction between the Army and law enforcement.[7] To this end, Congress has enacted several enabling statutes that allow the Army to provide information to law enforcement about any illegal acts observed during training exercises,[8] provide local law enforcement with surplus military equipment,[9] and train local law enforcement in how to use the equipment.[10]

This Note suggests a more sweeping and expansive reading of the Posse Comitatus Act. The intent of the Act is to protect civilians from the tactics, equipment, and horrors of war. When local law enforcement use war-time techniques on civilians as a routine matter, it creates a gap between the people and law enforcement. The Posse Comitatus Act was originally created to patch such a gap that happened in the past, when Federal troops occupied the South following the Civil War.[11] Southerners felt so humiliated and shamed by the troop’s presence, they eventually compromised and allowed a Northerner to become President in order to get the troops removed.[12]

No person should feel oppressed by their own law enforcement. United States citizens should not feel as if they were hostiles in a foreign land. The Posse Comitatus Act must address a larger security concern of the people of the United States in order to protect them from the experience of war. The Act should prohibit all involvement of the military in law enforcement and prevent the flow of military-style weapons and tactics from being incorporated into civilian law enforcement. Civilians should not feel as if their local law enforcement is waging war against them, an evil the Posse Comitatus Act was implemented to avoid.

Questions and inquiries regarding this Note may be forwarded to the author at

[1] Orlando Police Officer Accused of Brutality Fired, (Feb. 19, 2015),
[2] Zachary Shultz, Florida State Students Stand Against Police Militarization, FightBack!News (Jan. 29, 2015),
[3] Larry Buchanan et al., What Happened in Ferguson?, New York Times (Nov. 25, 2014),
[4] Nick Carey & Edward McAllister, Protestors Mark Two Weeks Since Police Shooting in Ferguson, Missouri, Reuters (Aug. 23, 2014),
[5] Josh Levs, Ferguson Violence: Critics rip Police Tactics, use of Military Equipment, (Aug. 15, 2014),
[6] 18 U.S.C. § 1385 (2012).
[7] United States v. Roberts, 799 F.2d 565 (9th Cir. 1986); United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991).
[8] Use of Information Collected During Military Operations, 10 U.S.C. § 371(a) (2012).
[9] Use of Military Equipment and Facilities, 10 U.S.C. § 372 (2012).
[10] Training and Advising Civilian Law Enforcement Officials, 10 U.S.C. § 373 (2012).
[11] Gary Felicetti & John Luce, The Posse Comitatus Act: Setting the Record Straight on 124 Years of Mischief and Misunderstanding Before Any More Damage is Done, 175 Mil. L. Rev. 86, 108 (2003).
[12] Id.

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