Today we have a question about superheroes who work for the military and the Posse Comitatus Act. As always, if you have questions or post suggestions, please send them to firstname.lastname@example.org and email@example.com or leave them in the comments.
Repentinus asks about the Posse Comitatus Act and its effects on superheroes serving in the military (e.g. Captain America) or in quasi-military organizations like S.H.I.E.L.D. First, a bit of background about the act.
Posse comitatus dates back to the common law era and has been defined in the US as “The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases, as to aid him in keeping the peace, in pursuing and arresting felons, etc.” United States v. Garcia, 672 F.2d 1349, 1368 n. 32 (11th Cir. 1982) (quoting Black’s Law Dictionary). The Act prohibits the willful use of “any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws” except “in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 18 USC 1385. Note that although the Act specifies the Army or the Air Force, “the Posse Comitatus Act applies to the Navy through section 375 and 32 C.F.R. § 213.10.” United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994). The Naval Criminal Investigative Service (NCIS) also falls within the Act despite being primarily staffed and run by civilians. See United States v. Chon, 210 F.3d 990 (9th Cir. 2000). As a result, Congress granted the NCIS explicit authority to execute warrants and make arrests. 10 USC 7480. Note, however, that the Act does not apply to the Coast Guard, partly because of the Coast Guard’s historical dual role as a law enforcement agency. Jackson v. State, 572 P.2d 87 (Alaska 1977).
The final thing to note is this part of the Act: “or otherwise to execute the laws.” This broader language means that the Act prohibits not just conscription into a posse but also prohibits the military from doing anything “which is regulatory, proscriptive or compulsory in nature, and causes … citizens to be presently or prospectively subject to regulations, proscriptions, or compulsions imposed by military authority” (without explicit Congressional or constitutional approval). United States v. McArthur, 419 F.Supp. 186, 194 (D.N.D. 1975) (aff’d by 541 F.2d 1275 (8th Cir. 1976)). Examples of such prohibited acts include “arrest; seizure 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.” United States v. Red Feather, 392 F.Supp. 916, 925 (D.S.D. 1975).
That’s pretty much a laundry list of typical superhero activities. However, note the key phrase “imposed by military authority.” As the court in Chon held, “[Department of Defense] personnel may participate in civilian law enforcement activities in their private capacities, [but] they may not do so under the auspices of the military.” Chon, 210 F.3d at 993. As the Chon court explained, civilian NCIS agents “represented and furthered the interests of the Navy, and were delegated the same authority to do so as military NCIS agents. When the civilian world is confronted by agents of the Navy, it is unlikely to make the fine distinctions asserted by the government between military and civilian NCIS agents.” Id.
Thus, superhero members of the military may engage in law enforcement activities so long as it is clear that they are doing so as private citizens (or to have explicit Congressional approval). Luckily, most superheroes are quite adept at maintaining multiple identities, so it should be easy to separate out the civilian and military roles via a quick costume change.
That’s it for this week. Keep your questions coming in!