Arthur Rizer Trading Police

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From the SelectedWorks of Arthur Rizer

February 24, 2015

Trading Police for Soldiers: Has the Posse Comitatus Act Helped Militarize Our Police and Set the Stage for More Fergusons? by Arthur Rizer

Arthur Rizer, West Virginia University

Available at: Arthur Rizer http://works.bepress.com/arthur_rizer/3/

Trading Police for Soldiers: Has the Posse Comitatus Act Helped Militarize Our Police and Set the Stage for More Fergusons?

Arthur Rizer1

I.

The Posse Comitatus Act

  1. The History of Posse Comitatus
  2. Judicial Application of the Act

Exceptions and Variations to the Act

  1. Homel

Insurrection Act

  1. Military Support for Civilian Authorities “Act”

D.

IV.

  1. Blurring the Line Between Police and Soldiers

If it Isn’t Broken -Don’t Fix it.

Repealing the Law: A Case for Killing the Posse Comitatus Act Limiting the Greatest Resource When It is Needed Most War has Come and the Military is Fighting it. Trading Military Soldiers for Police Soldiers

V.

Recommendations: Updating and Modifying the Law for Today’s America

  1. Make it More Clear

B.

  1. Rely on Timelines Rather Than Absolute Bans.

D.

  1. Arthur Rizer is an Associate Professor of Law at the West Virginia University College of Law and a Visiting Professor of Law at Georgetown University Law Center. Rizer served in the U.S. Army for 20 years, retiring as a Lieutenant Colonel from a reserve component in 2014. Rizer is also a former criminal prosecutor with the U.S. Department of Justice, Criminal Division. Before his practice, Rizer served as a civilian police officer in Washington State. This article began as a paper for a course taken with Professor Cohen in 2008 at Georgetown University Law Center dealing with updating the Posse Comitatus Act for a post 9/11 world.

The author would like to thank his research assistants Berkeley Bentley, Vito Minutelli, and Cody Murphey for their help in the research and editing of this article and Instructor in Constitutional Law and Ph.D. candidate in Government at Georgetown University Joseph Hartman for his help to the author in drafting much of what became the introduction to this article and section IV.B.iv. The author would also like to thank the Hodges Faculty Research Grant for its support of this project. Lastly, the author would also like to thank {editor’s name}, Editor for the {journal name} Law Review and his/her team for their work on this article.

  1. Introduction

On November 24, 2015, the St. Louis County Prosecutor, Robert McCulloch, announced that a grand jury did not return a true bill and issue an indictment against Ferguson, Missouri, Officer Darren Wilson for the fatal shooting of Michael Brown.2 While the nation was holding its breath awaiting the grand jury’s decision, law enforcement stood “deployed” around Ferguson. Missouri Governor Jay Nixon had declared a state of emergency, and Ferguson Mayor James Knowles warned authorities to “prepare for the worst.”3 St. Louis Police Chief Sam Dotson stated before the announcement, “We’ve had three months to prepare. . . . our intelligence is good . . . our tactics are good,”4 a statement reminiscent of a general rallying his soldiers before the final push to engage and destroy the enemy. The events in Ferguson, Missouri—a city with a population of just over 20,0005 —have brought into national focus a problem that many citizens across the United States have felt growing for years.6 Much as the media

  1. Ferguson Documents: How the Grand Jury Reached a Decision, NAT’L PUB. RADIO (Nov. 25, 2014, 6:41 AM), http://www.npr.org/blogs/thetwo-way/2014/11/25/366507379/ferguson-docs-how-the-grand-jury-reached-a-
  2. Jamelle Bouie, Prepare for the Worst: Missouri’s Governor Smears the Residents of Ferguson and Misunderstands the Cause of Law Summer’s Chaos, SLATE (Nov. 19, 2014, 10:56 AM), http://www.slate.com/articles/news_and_politics/politics/2014/11/ferguson_state_of_emergency_gov_jay_n ixon_expects_unrest_and_chaos_after.html.
  3. Evan Perez, Grand Jury Decision on Ferguson Officer Darren Wilson Could Come Friday, CNN (Nov. 19 2014, 8:21 PM), http://www.cnn.com/2014/11/19/justice/ferguson-grand-jury-ruling/. 5 Ferguson, Missouri, CITY-DATA, http://www.city–Missouri.html#b.

6 See Arthur Rizer & Joseph Hartman, How the War on Terror Has Militarized the Police, THE ATLANTIC, Nov. 7, 2011, available at http://www.theatlantic.com/national/archive/2011/11/how-the-war-on-terror-has-militarized–This problem of militarization of the police has grown over time because of the link between 9/11, the wars on terror and drugs, and the rapid and substantial increase in military hardware and weaponry being placed in the hands of local police departments. See id.

coverage of Selma brought the true plight of those fighting the Civil Rights Movement into the homes of all Americans and the newspapers of even more abroad, 7 the live coverage of the police response in Ferguson showed Americans and the world the extent of the militarization of state and local police departments in the United States.8

The central problem posed by this shift toward militarization stems from

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