The Posse Comitatus and the Office of Sheriff: Armed Citizens Summoned to the Aid of Law Enforcement
Journal of Criminal Law and Criminology, vol. 104, no. 4. pages 761-850 (2015)
90 Pages Posted: 22 Apr 2014 Last revised: 16 Jun 2015
Date Written: June 15, 2015
The Sheriff’s posse comitatus authority to call forth armed citizens to aid law enforcement is deeply rooted in the Anglo-American legal system, originating no later than the ninth century. The posse comitatus power thrives in the twenty-first century United States. Sheriffs today use their posse comitatus power frequently, sometimes daily. This Article describes the historical roots, the modern uses, and the Second Amendment implications of posse comitatus.
The posse comitatus power does not belong exclusively to Sheriffs, but the power was originally created for them, and they remain the most frequent users. Accordingly, Part I of this Article describes the origins and history of the Office of Sheriff. This Part explains how the nature of the Anglo-Saxon office provided the foundation for the American sheriff as a constitutional officer, elected directly by the people, and enjoying great independence in the performance of his duties. Whereas police chiefs are appointed to their place within (and not at the top of) the chain of command of a city government, sheriffs are autonomous.
Part II explicates the law and history of the posse comitatus from Anglo-Saxon times to the present. 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. The Sheriff in carrying out his duty to keep the peace in his county may summon to his aid the able-bodied adults of the county; the Sheriff has complete discretion about whom to summon and how the persons summoned shall be armed.
Part III provides a case study of the posse comitatus in modern Colorado. Posses have thwarted the escapes of criminals, including serial killer Ted Bundy. Posses also serve as citizen volunteers on a regular, structured basis; the assist the sheriffs during county fairs, weather emergencies, and hostage situations, and they perform many other duties. The most highly trained posse in Colorado is the Colorado Mounted Rangers, which provides armed assistance to many sheriffs’ offices and police departments on an as-needed basis.
Finally, Part IV considers the relation between the posse comitatus and the Second Amendment. The Second Amendment aims to foster a “well-regulated militia,” and in furtherance of this purpose, the right of all the People to keep and bear arms is safeguarded. The posse comitatus and the militia are not identical, but they overlap and are intertwined to such a degree that the disarmament of the one would inevitably destroy the other. One consequence of the Second Amendment was to ensure that the citizenry will be armed so that there can be an effective posse comitatus.
Accordingly, sheriffs and other officials who have the authority to summon the posse comitatus are intended third-party beneficiaries of the individual right to keep and bear arms. Sheriffs have proper third-party standing to defend and advocate for the Second Amendment rights of citizens in their jurisdictions.
A length Appendix summarizes the posse comitatus and related statutes which presently provide for citizens to be summoned to aid of law enforcement in almost every American state.
Keywords: Posse comitatus, Office of Sheriff, Alfred the Great, Second Amendment
JEL Classification: H11, H41, H49, K14, K42
Suggested Citation: Suggested Citation