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10 Reporter 50 (1981)
Recent Trends in Resolving Posse Comitatus Questions In the Air Force

handle is hein.journals/report10 and id is 56 raw text is: Recent Trends in Resolving Posse Comitatus Questions In The Air Force By Captain Charles J. Dunlap, Jr. Whoever, except in cases and under circum- stances expressly authorized by the Con- stitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years or both.' Many judge advocates have a difficult time re- solving posse comitatus questions. This is primarily because there have been no prosecu- tions under this criminal statute since its enactment over 100 years ago. Of course this is not to say there has been no litigation involving O€ the Act. Indeed there has been; however, in 50 every instance the issues concerned the juris- diction of the court or whether evidence ob- tained in violation of the Act was subject to an exclusionary rule- not criminal liability.2 To reach the questions of jurisdiction or evi- dence, the courts have often had to resolve the question of what conduct violates the Act. The result has been diverse and sometimes con- flicting standards. A recent (1980) federal dis- trict court case, United States v. Hartley,3 accu- rately summarized the current state of the law. Citing United States v. Mc4rthur,4 the court stated: '18 U.S.C. § 1385 (1976). Sec Note, 7h4e Posse Comitarus Act: Reconstruction Politics Re- considered, 13 ,AM. CRIM. L. REP. 703 (1976). *486 F. Supp. 1348 (M.D. lia. 1980). 419 F. Supp. 186 (D.N.D.) aftfisub nom. United States v. Casper, 541 F.2d 1275 (8th Cir. 1976), 430 U.S. 970 (1977). Charles J. Dunlap, Jr. Coptertn, USAF. B.-. History, St. Joseph's College 1972; J.D. Iillanova University, 1975. Captain Dunlap received his commission through ROTC in 1972 and entered active duty, after educational delay, in 1976. He has had JAG as- signments at Barksdale AFB, Louisiana, Osan A1ir Base, Korea, and RACF Upper lteyford (U.K.). Captain Dunlap is currently as- signed to the A4ir Force Judge A4dvocate General School, Maxwell A4ir Force Base, Alabama. Three different legal standards were de- scribed in Mcirthur. The first was whether there was a direct active use of military personnel by civilian law enforcement agents to execute the laws. (This test was fashioned by Judge Bogue in United States v. Red Feather) . . . The second test asked whether a use of any part of the Army or Air Force pervaded the activities of the civilian law enforcement agents. (This test was devised by Judge Urbom in United States v. Jaramillo) ... The third standard, which was applied by the Court in Mc4rthur can be paraphrased as follows: Were Army or Air Force person- nel used by civilian law enforcement officers in such a manner that the military personnel subjected citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature?5 The Air Force apparently adopted the direct active use test enunciated in Red Feather.6 Specifically, The Judge Advocate General (TJAG) in a letter dated 27 June 1980 cites Red Feather and states: T he Act has been interpreted by the courts to prohibit the use of the Army or Air Force to provide direct assistance in the enforce- ment of the civilian criminal laws except as otherwise specifically authorized.7 'United States v. Hartley, 486 F. Supp. 1348, 1356 (M.D. FIa. 1980) (citations omitted). 'United States v. Red Feather, 392 F. Supp. 916, 921-23 (I).S.D. 1975), affd sub nom. United States v. Casper, 541 F.2d 1275 (8th Cir. 1976). ?TJAG Itr to AF/IG, subj: Congressional Inquiry, (27 Jun 1980). The direct active use test can be quite helpful to judge advocates in determining exactly what conduct amounts to a violation of the law. The court in Red Feather observed that direct military activity would be arrest; sei- zure of evidence; search of a person; search of a building; investigation of crime; interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for a suspect and other like activities; while indirect aid is: mere presence of military personnel under orders to report on the necessity for military intervention; preparation of contingency plans

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