By George Fallar 
You’ve probably never heard of the Posse Comitatus Act of 1878.
“Power of the county” in Latin is Posse Comitatus.
Civil War Reconstruction fostered a return of white supremacists to political power in the south and also in Congress. Coincidental with this, Jim Crow laws were blooming into existence throughout the former Confederate states.
Former Confederates were well aware of the power federal troops could bring to bear. To ensure Jim Crow laws remained in place, those elected white supremacists passed a law banning the use of the federal military federal troops to interfere in civil law enforcement.
Whoever, except in cases and under circumstances expressly authorized by the Constitution 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 under this title or imprisoned not more than two years, or both.
Posse Comitatus Act in its entirety – Amended 1956 to include Air Force
The foundation of right wing radicalism is nearly always hate directed at easily identifiable groups of people who are noticeably different. Bigotry is the core and it’s bubbling up much closer to the surface now.
That’s the Posse Comitatus Act and the questionable motivation for its birth.
The act spawned a group of people who espouse many of the same beliefs embraced by the designers of the Jim Crow laws. The group even used the Posse Comitatus name.
Founder William Potter Gale
William Potter Gale was a former aide to General Douglas McArthur. Gale had beliefs characterized by the “Christian Identity” ideology. That far right theology is racist and anti-Semitic to the core, identifying black people as subhuman “mud races” and Jews as the actual progeny of Satan. Gale supported that movement, offshoot Christian Defense League, and its paramilitary group the California Rangers.
Ironically, Gales’ parents fled Russian oppression and arrived in the United States in 1894. They were both Jewish.
Gale founded the Posse Comitatus group in 1970. He was able to leverage a growing anti-tax movement and his contacts within the Christian Identity groups to grow his loose organization. The attractions of the group were vigilantism, survivalism, and anything that smelled like anti-government.
A Midwest farming crisis in the 1970’s and 1980’s was instrumental in the growth of the Posse and other similar movements. Farmers were angry and desperate and looking for answers. The militant Posse stance against taxes and the federal government provided that answer for many.
Federal Marshals and a Sheriff are Killed
North Dakota farmer and Posse member Gordon Kahl stopped paying his federal taxes in the late 1960’s. Kahl felt the federal government was illegitimate and violated his religious principles, common beliefs professed by Posse members.
Kahl was sentenced, in 1977, to two years in prison and five years probation for federal income tax evasion for 1973 and 1974. After serving eight months he was released and continued to not pay his taxes.
Kahl spent some time in Texas where he organized the first Texas chapter of the Posse Comitatus. Crossing state lines violated the terms of his release, as did ignoring his tax obligations. So, the IRS seized his eighty acre property. A warrant was issued for his arrest for the parole violation.
A roadblock was set up to arrest Kahl when he left a “township” (another anti-government group) meeting in Medina, ND on February 13, 1983.
Agents stopped two vehicles carrying Kahl, his wife and son, and three others. All of them had attended the township meeting. A shootout ensued with differing stories of who fired the first shots. Kahl’s son Yorie was hit and severely injured.
Two US Marshals were killed and several other people were wounded in the shootout. Kahl managed to escape. Reports say he fled to Texas and then north to Mountain Home, Arkansas before landing in Smithville, Arkansas.
A resident of the Mountain Home place dropped a dime on Kahl to collect a $25,000 reward.
Authorities moved on the Smithville place and detained the residents of the home. Three officers entered the residence with Gordon Kahl waiting inside.
Shooting began. Once it was over, Kahl was dead and Sheriff Gene Matthews was fatally wounded.
Gale Goes To His Reward
In 1986, Gale and several of his followers were arrested for conspiracy to attack properties and personnel of the Internal Revenue Service as well as federal judges who enforced tax law. Gale was found guilty of multiple felonies in 1987 but was in such poor health that he could not serve his sentence. He died a year later of emphysema.
Faces of Hate – A History of the American Far-Right
We Were Talking About The Law
There’s very little the Posse Comitatus group espoused that wasn’t also a trigger for its namesake law. Dense bigotry is the root.
More modern groups like the Constitutional Sheriff and Sovereign Citizen movements embrace the same thinking. People within these groups have learned to be generally less overt about the bigotry component of their motivations. That said, it doesn’t take much digging around social media posts to discern the truth.
For example, “The World’s Toughest Sheriff” Joe Arpaio from Arizona is a big believer in the Constitutional Sheriff ideology.
The Posse Comitatus Act allowed legislated exceptions including the Insurrection Act of 1807, something we may be more familiar with given recent threats to invoke it to justify use of federal troops in civil law enforcement. That has already proven to be a weakness.
One weakness was demonstrated when federal troops were deployed in the summer of 2020 to quell George Floyd protests in Washington, D.C. and later (with the addition of Border Patrol agents) in Portland, OR.
The intent of the law is to prevent a president from using the military, including National Guard troops, as a police force.
How Should The Law Be Fixed?
The Brennan Center For Justice outlines three changes.
Congress should pass three reforms to help close these loopholes in the Posse Comitatus Act. First, it should transfer control over the DC National Guard from the president to the mayor of Washington. The president would still be able to take command of the DC Guard when necessary by federalizing it, but it would then be subject to the Posse Comitatus Act, just like all other federally controlled military forces.
Second, Congress should clarify that governors may not send their National Guard forces into another state or territory without the latter jurisdiction’s consent. This will stop future presidents who want to use the military domestically, but do not want to follow the laws established by Congress, from going from governor to governor until they find one who is willing to do their dirty work.
Third, Congress should enact a law clarifying that the Posse Comitatus Act applies to National Guard forces whenever they report through a federal chain of command, regardless of whether they have officially been called into federal service. This will ensure that form is not elevated over substance and will more fully realize the principle behind the law.
The Posse Comitatus Act Explained – Brennan Center For Justice
No time should be wasted enacting the necessary legislation to close the loopholes. Restricting access to use the might of the United States military as a police force is more important than it ever has been in the history of the Republic.
A person who claimed he would be a dictator on his first day in the Oval Office can’t be allowed any tools to make good on his promise.
Research and Supporting Information
- Sovereign citizen movement – Wikipedia
- The Posse Comitatus Act Explained – Brennan Center For Justice
- Col. William P. Gale, a Scary Apparition From the Desert – Huffington Post
- Jim Crow Laws – Fair Fight Initiative