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Unpublished Paper
Trading Police for Soldiers: Has the Posse Comitatus Act Helped Militarize Our Police and Set the Stage for More Fergusons?
ExpressO (2015)
  • Arthur Rizer, West Virginia University
The recent protests, police overreaction, and subsequent riots in Ferguson, Missouri, demonstrated to Americans and to the world the true extent of the militarization of police in communities across the United States. Deployed throughout Ferguson, in preemption and then in response to protesters’ actions, were ranks of heavily armed, flak-jacketed, camouflage uniformed police standing atop and around armored personnel carriers with machine guns mounted. Such a response evidences that the line between police and soldiers in communities is blurring, if not blurred. This militarization is, in part, a result of a principle Americans have held dear since our founding, that there is to be no standing army on our soil. That principle is codified in the Posse Comitatus Act, a law drafted in 1878 that prohibits military forces from engaging in domestic law enforcement. Law enforcement officials, however, are simply bypassing the spirit of the law by developing soldiering police forces, equipping them with the military weapons, dress, and equipment seen on the streets of Ferguson. Police officers swear to protect and serve the citizens of their communities; soldiers pledge to engage the enemy. Soldiers are thus America’s “hammer,” to be brought down effectively and with sufficient force to get the job done. No matter how well trained a police officer is to protect and serve, if that officer is dressed like a soldier, armed like a soldier, and trained in military tactics, there arises a very real concern that he or she will eventually begin to act like a soldier. Thus, the adage, “when all you have is a hammer, everything looks like a nail,” rings as true for today’s police departments as for foot soldiers. We train and want our law enforcement officials to be peace officers, not soldiers; yet, sometimes, the mission requires the blunt force of the dispassionate hammer. This Article therefore proffers a redrafting of the Act to allow local authorities to call in military support in cases of disaster relief or other emergencies for a limited time. The military has the resources, training, and command structure to most effectively respond to such crises. The Act and the jurisprudence surrounding it, as they stand today, limit America’s ability to react to domestic emergencies. This proposed solution gives America its power back, while maintaining the balance between security and liberty that should always be at the forefront of the conversation. First, this article will examine the development of Posse Comitatus and its relationship to the historical backdrop of the American philosophy of limited government. Here, the article will explore where the Act came from and how it relates to the American experience. Next, this article will explain the legal succession of Posse Comitatus from a political philosophy to a codified law. This Part will also cover the “sister” laws and exceptions to the Posse Comitatus Act. The article will then turn its attention to the Posse Comitatus Act itself, specifically addressing whether this nineteenth century law has a place among twenty-first century threats and when officials are simply bypassing the spirit of the law, anyway, by developing soldiering police forces. This Part will also examine these threats to security if the status quo is kept and compare this to the potential danger to personal freedoms if the law is repealed.
  • Militarization of Police,
  • Posse Comitatus
Publication Date
February 24, 2015
Citation Information
Arthur Rizer. "Trading Police for Soldiers: Has the Posse Comitatus Act Helped Militarize Our Police and Set the Stage for More Fergusons?" ExpressO (2015)
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