“Call out the Posse”

WeaponsMan

These words, spoken by many a lantern-jawed leading man of the 50s and 60s, were the first bold strokes of the writing on the wall for many a celluloid desperado. It was a surprise to us, living between two modern seaside communities on the hard-right seaboard of a continental nation, to learn that “the posse” still thrives in America. (We’ll follow this up with an article about an event with a historical posse: the exact one on the left).  

Law Professor Dave Kopel explains in brief in a post at the Volokh Conspiracy blog, and in depth in an upcoming Northwestern Law School Journal Symposium; his draft of the long-form article is available at SSRN. It’s 95 pages long, a lot of them being an appendix describing the posse laws in many American states, and the first footnote runs for three pages, listing a fascinating 2000-year library of history books that Kopel consulted in his analysis of posse comitatus history and legalities.

The Sheriff, an office that is more or less deprecated in its native England, got a new lease on life in the New World, and when a Sheriff’s manpower did not suit the task, he could call out the able-bodied manpower of the county: in Latin, the posse comitatus. The term is known to most modern Americans as the name of the post-Reconstruction law that forbade use of federal troops under the fig-leaf of posse comitatus, the law that now enforces, somewhat, a separation cleft between the national security apparatus and the common police. But the posse long predated 1878 and continues to function thereafter.

The decline in use of the posse in the Northeast, Kopel notes, may trace directly to the Fugitive Slave Act of 1850. If you’re not enthusiastic about getting called for jury duty, imagine if instead of that, the call came compelling you to bring your firearm and help hunt down some poor wretch of a Dred Scott and send him back to the living death of slavery.

But having lived a lifetime where the posse never recovered from that sour era, we were astounded to find that the posse has been working all along out West. It’s always good to have our thick, egotistical layer of omniscience holed. It’s a good counterweight to our usual burden of massive self-regard. Kopel:

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.

via Sheriffs and the posse comitatus.

Again, this was news to us, although it might be old hat to our readers in Colorado and other Western states. The long form paper goes on to consider the nexus between the office of Sheriff and the Second Amendment to the US Constitution. This is a very interesting paper that stands at a crossroads of law and policy.

Like most law professors, Kopel is a skillful writer and you don’t need to be a law geek to understand or appreciate his material, although some of the abstruse points of law may slide by you. Here’s just three separate sentences to think about:

The posse comitatus law of the 21st century United States is essentially the same as the posse comitatus law of England during the ninth century.

Wow.

Posses have thwarted the escapes of criminals, including serial killer Ted Bundy.