Sheriffs and the posse comitatus

May 15

Most people familiar with American history know that in the late 19th century American West, Sheriffs would sometimes call out “the posse”–armed citizens–to assist the Sheriff in apprehending a fugitive, or providing additional support for community defense against violent criminals. What is less well known is that the institution of the posse comitatus thrives today in 21st century America.

The law governing the posse comitatus has changed little since its origin in Anglo-Saxon England, around the time of King Alfred the Great in the ninth century. Northwestern University Law School’s Journal of Criminal Law & Criminology is producing a symposium issue on arms law and policy. My contribution is an article on Sheriffs and their posses. (Draft available here.)

The article begins with a detailed history of the Office of Sheriff, from its origin in Anglo-Saxon England. The word “Sheriff” is a combination of the Anglo-Saxon words for “shire” (what we today call a “county”) and “reeve” (meaning “guardian”). The county guardians of Anglo-Saxon England were responsible for organizing communal defense. Often, they led the shire’s militia, as part of King Alfred’s reorganization of national defense which finally protected the nation from Danish invaders and marauders.

By the time that the American Colonies were being settled, the Office of Sheriff was declining in England, but the move across the Atlantic brought new energy and importance to the Office. The Americans restored what they considered to be the ancient Anglo-Saxon practice of popular election of Sheriffs. The Americans also strongly reaffirmed the traditional common law understanding of the Sheriff’s powers and authorities, especially the Sheriff’s autonomy and independence. During the latter 19th century, elections and other common law principles were often formally constitutionalized in the new states. Legally speaking, the Office of Sheriff in most states has changed little since the 19th century.

From Anglo-Saxon times until the present, a core power of the Sheriff has been the authority to summon posse comitatus–”the power of the county.” Like jury service, posse service is a mandatory duty of the citizen. When the Sheriff, in his nearly unlimited discretion, summons the posse, the citizen must respond. Traditionally, the group responsible for potentially serving in a posse was approximately the same as those responsible for serving in the militia–although the upper and lower age limits for the posse were wider, and the posse had fewer exemptions (e.g., certain professions) than did the militia.

Posse service was a common feature of life in Colonial America and the Early Republic. Like jury service, it was embraced as the right and the duty of a responsible citizen of a republic. Although the authority to summon a posse originated with Sheriffs, it was not limited to them. Justices of the Peace, Judges, and Marshals are among the officials with posse authority. During the ratification debates, some anti-Federalists criticized the proposed Constitution for enumerating a federal militia power, but not a federal posse power; the anti-Federalists feared that a government which had to rely on the militia as a first resort for enforcement would be too militaristic. Alexander Hamilton’s reply (Federalist 29) was that the federal government had posse comitatus authority by virtue of the Necessary and Proper Clause, and this view appears to have been uncontroversial from 1789 onward.

The Fugitive Slave Act of 1850 expressly gave federal marshals the power to summon a posse to apprehend runaway slaves. To many northerners, forced service to recapture slaves felt little different from slavery itself. The posse comitatus was supposed to be the people of the county participating in self-government by enforcing their own laws. Now, federal posse comitatus had been perverted into a weapon that transformed free citizens into the minions of distant slave-owners.

Moreover, the federal standing army was sometimes used as a posse comitatus, under the preposterous fiction that the soldiers were just volunteers who in their capacity as civilians were assisting the federal marshal. During the Reconstruction, the precedents of the slave power were turned against itself, so that the federal army was again used as a posse comitatus, this time in the South. Finally in 1878, Congress passed the Posse Comitatus Act, to forbid use of the army in law enforcement, except when expressly authorized by Congress. Unfortunately, the Act has been seriously weakened by loopholes created for the “drug war,” beginning with the Reagan administration.

For the century after 1878, federal uses of the posse comitatus were infrequent, and rarely controversial. Among the county Sheriffs, the posse thrived, in its traditional roles of ordinary law enforcement, suppression of riots, and so on.

In Colorado today, at least 17 county Sheriffs’ Offices have organized posses. These days, posse service is not a matter of being summoned, but of volunteering. The volunteers are trained to high standards by the Sheriffs. To the extent that the posse needs be armed at any given time (and the Sheriff has always had complete discretion in this matter), posse members provide their own arms according to the Sheriffs’ guidelines. Posses provide everything from gate security at the County Fair to assistance in hostage situations and high-risk arrests.

These county posses are supplement by the Colorado Mounted Rangers, a statewide volunteer organization which has memoranda of understanding with over two dozen local law enforcement agencies to provide support as needed. Again, this can involve everything from directing traffic at a bike parade, to emergency services during a wildfire or flood. During natural disasters, a Sheriff may also deputize posse members ad hoc, to prevent looting in towns which have been temporarily isolated.

Large posses have been used in exceptional circumstances, such as when serial killer Ted Bundy escaped from the Pitkin County (Aspen) jail in 1977, or in the manhunt for a pair of criminals who murdered the Sheriff of Hinsdale County in 1994. In both of these situations, the posse proved decisive in preventing the killers from leaving the county.

The Second Amendment guarantee of the right of the people to keep and bear arms includes the stated purpose of ensuring the necessary precondition for the existence of a well-regulated militia. The right to arms likewise assures the continuing viability of the posse comitatus. In 21st century America, as in England under the Alfred the Great, the individual’s possession of arms is a right and it is also part of civic duty. Unlike in some other nations (including the modern United Kingdom) where “the governments are afraid to trust the people with arms” (Federalist 46), the American system (like its Anglo-Saxon ancestor) is premised on armed law-abiding citizens participating in the preservation of law and order.

David Kopel is Research Director, Independence Institute, Denver, Colorado; Associate Policy Analyst, Cato Institute, Washington, D.C; and Adjunct professor of advanced constitutional law, Denver University, Sturm College of Law. He is author of 15 books and 90 scholarly journal articles.
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