Siouxland Observer

Master of Science

Monday, April 30, 2018

Hate Normalized: Posse Comitatus

Mainstreaming hate is a thing of the past. Right?  The ugliest form of this, recently spotlighted at The National Memorial for Peace and Justice, were the lynchings, an ugly relic of the past seen in grainy black and white photos, the kind seen in the YouTude video below: Warning: the photos are raw and mean.

Reasons for lynchings were always the same: acting “uppity,” taking away jobs, making advances toward white women, cheating at cards, or whatever.  And, in the case of at least one Hispanic woman, according to Latinos and the Law: Cases and Materials, for resisting the advances of a white man too forcefully.

Accounts of lynching in the United States have primarily focused on violence against blacks, but Hispanics have also fallen victim to criminal bullying and murder.  Ken Gonzales-Day said, for example, that racially motivated lynchings were widespread in the Hispanic community too.  He outlined in his book, Lynching in the West, 350 instances of lynching that occurred in the state of California between 1850 and 1935.

Sadly, these lynchings, as well as the lynchings of Africa Americans, were often marked by hilarity, an atmosphere of righteous celebration and “public spectacle.”  The lynchers believed they were acting in full accord with community wishes and meting out a type of informal justice, Gonzales-Day said.

Posses ranging from a handful of citizens, to a hundred or more individuals, routinely overstepped their quasi-legal function and were themselves responsible for mob violence.

This article will explore how the posse comitatus doctrine, and the Constitutional Sheriffs and Peace Officers Association (C.S.P.O.A.), among others, is taking us to what looks like the return of the good old days of terrified and stressed outsiders, guests of honor at celebrations in the home of the brave, and the land of the free. 

Posse comitatus, according to a citation in Wikipedia, gives local authorities (usually a county sheriff), the right to adjudicate local laws derived from the judicial decisions of courts and similar tribunals, also know as “common law,” arising as precedent.

Statutory law or statute law, written law set down by a body of legislature, or a singular legislator, can also authorize an assembled body of community members to keep the peace, pursue felons and arrest them, similar to the concept of “hue and cry,” found in English common law (the Statute of Winchester, October 1285), which states, in part:

“Forasmuch as from day to day robberies murders and arsons be more often used than they have been heretofore … they (community members) shall not spare any — nor conceal — any  felonies and doth command that cries be solemnly made in all counties, and hundreds of markets and fairs … and all other places where great resort of people is so that none shall excuse himself by ignorance that from henceforth every country be so well kept that immediately upon such robberies and felonies committed fresh suits shall be made from town to town and from country to country.”

Calling out criminals in the community, and across the land (the hue and cry of shouting out a criminal's activities and whereabouts) has taken on renewed meaning in the raw divide of American politics.  The would-be kings, one of whom was touted recently by Vice President Mike Pence, Joe Arpaio, are not heroes.  And while many will argue they are, these kind of men and women should not be spared or concealed, but held accountable.

To paraphrase: the power of these felons to mainstream hate has established a painful reality that must not be ignored.  From now on, in fear of pain, far more painful than denying oaths, or community shunning for speaking one's mind, we must not spare any — nor conceal any — felonies, and are called upon to shout out in alarm the violations of human rights across our land.  None should be excused by ignorance; it will only harm us all.

When Pence praised Joe Arpaio he embarrassed us all (list of offenses: Harper’s Weekly Review, Joe Kloc, August 28, 2017).  How can Pence not see Arpaio as the felon he is?

Gautham Rao in his article, The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America, explained it thus:

“‘In antebellum (nonmodern) America, as in pre-industrial England, it was commonplace to witness civilians accompanying sheriffs and justices, scouring the countryside in search of scoundrels, scalawags, and other law-breakers.

“‘These civilians were the posse comitatus, or uncompensated, temporarily deputized citizens assisting law enforcement officers. At its core, the posse comitatus was a compulsory institution. Prior to the advent of centralized police forces, sheriffs and others compelled citizens to serve in the name of the state to execute arrests, level public nuisances, and keep the peace, upon pain of fine and imprisonment.

“‘Despite its coercive character, though, the posse was widely understood as one among many compulsory duties that protected the public welfare.  Americans heeded the call to serve in local posses, explained jurist Edward Livingston, because of communal ties of property, of family, of love of country and of liberty.’”

When Pence praised Joe Arpaio, the former Arizona sheriff who was convicted for ignoring a court order to stop racial profiling, claiming it was worthy to notice a smudge on our neighbor's face, while being oblivious to the ugly sneer on our own he embarrassed us all.  How can Pence not see Arpaio as a felon?  He is not a hero, not a man who come hell or high water, will do the right thing.  No, Arpaio violated the rights of Americans simply because he had the power to do so.

In 1870 President Ulysses S. Grant asked Congress for legislation to extend federal jurisdiction over certain crimes against people and property which had previously fallen under the purview of the states. 

According to the Marine Corps War College, in their document, Rethinking Posse Comitatus, between April 1870 and November 1871, the Congress passed a series of acts, known as the Enforcement Acts, which drastically altered the role of the federal government and the federal militia in law enforcement.

The first act made it a federal crime to coerce or prevent citizens, including blacks, from exercising their right to vote.  The second act authorized federal courts to appoint election supervisors and made it a federal offense to interfere with an election supervisor.  In addition this act authorized federal marshals and their deputies to summon bystanders or “such portion of land or naval forces, or militia, as may be necessary” to act as a posse comitatus to enforce compliance with the law.

The third act, which was the most controversial, gave the President the power to enforce the laws of the union by the employment of the militia or the land and naval forces of the United States.

If no marshal was to be found to execute a warrant, any federal official could “simply appoint some fit and discreet person, who shall be willing to act as marshal.”

The third Enforcement Act, which became part of the permanent law governing the intervention of federal military forces in domestic affairs, did not meet with universal approval.  Although the immediate result was dramatic reduction in the violence and successful enforcement of reconstruction, many southerners resented the use of federal troops in places where the state government had been reestablished

The use of the military was particularly odious when it was seen to be directed toward altering the outcome, of elections in Southern States, using federal troops to provide security and law enforcement in polling places.

Because of this, the Posse Comitatus Act was passed into law in 1878 and effectively put an end to the use of the Army to supplement civilian law enforcement officials.  It stated that the Army could only be used for domestic disturbances in situations expressly authorized by the Constitution or by an Act of Congress.

Even if federal laws were violated, military personnel could not be used to make arrests, search civilians or to conduct tribunals as long as state governments were not in danger of being overthrown.

There are exceptions.  Under the state authority of Title 32, that is, under state rather than federal service, National Guard forces are exempt from Posse Comitatus Act restrictions.  But sheriffs like Joe Arpaio are still allowed the power and force of the county.

A county sheriff can still summon able-bodied individuals between the ages of 18 and 45 to assistance him in certain cases, such as aiding him in keeping the peace, in pursuing and arresting felons and other duties.  Thus, while the military is restricted in domestic law enforcement activities, individuals in communities across the United States are not.

W. Fitzhugh Brundage in his 1993 book, Lynching in the New South, said posses, which once ranged in size from a handful of people, to a hundred or more individuals from all around town, routinely “overstepped their quasi-legal function and were themselves responsible for mob violence.”

Karen Branan in her book, The Family Tree, explored mob violence when she detailed the facts surrounding a grisly lynching of four blacks, including the first African-American woman, Loduska Crutchfield, hanged, in Georgia, January 22, 1912, by a white posse.

The federal posse comitatus functioned to keep slaves as slaves and to force citizens to serve the state.

The entire group, including a black woman, lived together on the property of a murdered man, Norman Hadley.  They were rounded up and hanged, despite their claims of innocence.  The sheriff just slipped away, and the posse went to work.

Another example of a posse ignoring due process in the absence of a sheriff, occurred October 19, 1915, in Brownsville, Texas.

Mexican bandits boarded a St Louis, Brownsville and Mexico passenger train and confronted a light-skinned Hispanic who told them where several “gringos” were hiding, including a state health official hiding in the train’s lavatory.  He was not molested after he told them, but was later hanged when Sheriff W.T. Vann of Brownsville left the scene of the wreck (the man in the lavatory was shot and killed).

The posses were careful not to give out details, but before it was all over, 10 men were either hanged or shot, including a second Mexican man, the “partner” of the young man on the train.  According to the Sacramento Union, the other eight men were killed on, or very near, the banks of the Rio Grande.

In Newberry, Florida in 1916, Peggy Peterman, wrote in the St. Petersburg Times, March 6, 1994, that a posse lynched several people while searching for suspected hog thief, Boisy Long.  Long, who shot the sheriff and another man when they came to arrest him, went into hiding.  The posse lynched his wife, Stella, mother of four, a friend, Mary Dennis, who  was pregnant, and a minister, John Baskin.

And in Tallahassee, Florida, Larry Rother, in a special report to The New York Times, March 14, 1994, wrote about what happened during a “war” waged by whites against the African-American population of Rosewood, a suburb of Tallahassee.

In case after case Wells details how white woman solicited their sexual encounters with black men.

“The attack began on Jan. 1, 1923,” Rother said, “when a white woman from nearby Sumner said a black man had assaulted her.  Whites formed a posse to hunt down her supposed assailant and lynched a black man, although there was no evidence he had attacked the woman.  The posse continued to grow over several days, besieging the homes of other black families in the town of a few hundred people.”

Seventy years after the attacks in 1993, a panel of historians, appointed by the state to investigate, concluded that government officials had failed to “control local events and request proper assistance.”  Rother said the report specifically blamed Cary Hardee, Florida's Governor at the time, and Elias Walker, who as sheriff of Levy County was responsible for law enforcement in Rosewood.

Lynchings were frequent during the years of 1882 to 1923, Mari J. Matsuda said in Planet Asian American.  Most lynching victims were black men, according to Matsuda, but numbers of black and white women, Native Americans, Asian Americans, Mexican Americans, and foreigners were lynched as well:

“Around the turn of the century hatred toward Asians, for example, was so intense in California, the San Francisco Chronicle began running editorials condemning Japanese immigration, which resulted in the California legislature later passing a resolution limiting such immigration.  In the following year, four Japanese scientists were targeted for violence.”

Attacks by whites, emboldened by faux legality (the posse comitatus doctrine), were so pervasive, even the federal government got into the act of subjugating minorities, especially African Americans.  In Richard Rothstein's The Color of Law, for example, even housing became a pawn in the hands of white hegemonists.

“Government's commitment to separating residential areas by race began nationwide following the violent suppression of Reconstruction after 1877,” Rothstein said.  “Although the Supreme Court in 1917 forbade the first wave of policies — racial segregation by zoning ordinance — the federal government began to recommend ways that cities could evade that ruling, not only in the southern and boarder states but across the county.”

Posse comitatus in America first ran into serious trouble in the mid-seventieth century.  Prior to 1850 or so, the posse was simply considered one among many compulsory duties that protected the public welfare.  But when southern slaveholders further refined the posse comitatus doctrine, and fashioned a federal state more their liking, abolitionists rebelled.

In Driskell v. Parish, according to Rao, a jury was asked to determine the innocence or guilt of individuals that had remained “merely passive” as authorities, clothed with the power of law, pursued a federal fugitives.  Unfortunately, the fugitives were Peter Dreskill's slaves; when Francis P. Parish, helped the slaves, Dreskill sued to recover damages, claiming Parish hindered and obstructed the arrest of his “property.”

Parrish had permitted the slaves to remain in his house until nightfall, after which no one knew what happened.  No matter.  Perry obstructed the claimant of his fugitive slaves by escorting the slaves into the house and closing his door.  The alleged act of obstruction was closing the door in Dreskill's face.  Aw.

“‘As the political voices of southern slavery contemplated federally enforced fugitive slave law,’ Rao said, ‘… they faced the reality of relying on a negligible and disparate federal police.  Accordingly, preliminary drafts of new legislation sought to maximize the federal government's existing power by appropriating all federal officials, law enforcement or otherwise, to apprehend fugitive slaves. …

Senator Andrew Butler of South Carolina proposed other creative ways to extract the most utility from existing federal institutions.  If no marshal was to be found to execute a warrant, any federal official could simply appoint some fit and discreet person, who shall be willing to act as marshal….’”

American citizens, naturally, played their part by submitting to the posse comitatus in order to maintain the orderly, well-regulated society required for a free nation, Rao said.  Unfortunately,
the federal posse comitatus doctrine during the 1850s signaled the existence of a ubiquitous federal power over persons that reached every individual within the Union.  Even after Reconstruction the federal posse comitatus doctrine remained incredibly consistent for tracking down slaves.

“From 1850 to 1865,” Rao said, “the federal posse comitatus functioned to keep slaves as slaves and to force citizens to serve the state.  Its failure from 1865 to 1878 permitted white southerners to maintain the subjugation of African-Americans.

“And throughout the next several decades, even as the federal state became professionalized, centralized, and bureaucratized, the federal posse comitatus remained especially useful to crush challenges to the national power structure.

“According to the Supreme Court (Wright v. United States), for instance, white men in a posse comitatus on Indian reservations, never really lost their ‘official’ status.  It was a simple method to multiply the federal presence on these ‘sovereign’ lands.”

Not only that, but Rao said the courts and legislatures carved so many exceptions into the Posse Comitatus Act of 1878 so as to render it a hollow shell in the present.  And according to the Marine Corps War College, the Posse Comitatus Law, says author Major Leah B. Watson, needs to be changed to allow increased military assistance to law enforcement agencies.

In 2010, in North Carolina, John Snow, a Democrat, found himself the target of an ad campaign, a flier mailed out to community members accusing him of supporting an African American felon named Henry Lee McCollum, a man accused of murdering, and raping, an eleven-year-old girl.

Reported in the The New York Review of Books (the article contains offensive material), the bogus claim resulted in Snow's defeat.  The article's theme, gerrymandering, is a problem (as is the blatant lying in campaign ads), but the core issue remains: justice for Americans, all Americans, even those seeking asylum and the American dream.

McCollum and his brother, Leon Brown, served 30 years in prison for a rape and murder they did not commit.  Ignorant campaigns of mind-numbing stupidity (and gerrymandering) can still lose elections, but they can no longer lose people their lives, praise God (and if there's any doubt, the ancestors of those killed in Rosewood are still able to speak truth).

The massacre was instigated by the rumor that a white woman, Fanny Taylor, had been sexually assaulted by a black man in her home in a nearby community.  A group of white men, believing this rapist to be a recently escaped convict named Jesse Hunter who was hiding in Rosewood, assembled to capture this man.

It is not readily know if the posse comitatus doctrine played a role in the massacre, but Aaron Carrier, one of two accomplices Taylor implicated, was captured and incarcerated, either by Elias Walker, the sheriff responsible for protecting Rosewood citizens, or one of his deputies.

Tragically, the posse lynched Sam Carter, the other man Taylor accused of helping Hunter escape.

Almost all states continue the longstanding legal tradition that armed citizens may be summoned to aid law enforcement.

In Southern Horrors: Lynch Law in All Its Phases, Ida B. Wells rips apart the notion that Africa American men lust savagely, and criminally, after innocent white women.  In case after case she details how in many instances a non-African woman actually solicited the sexual encounters with black men, and then lied when caught, or feared being caught.

This is commonly understood today, but unimaginable when Wells' wrote about it in 1892: “These are not pleasant facts,” Wells said (that many of victims are not victims at all), “but they are illustrative of the vital phase of the so-called race question, which should properly be designated an earnest inquiry as to the best methods by which religion, science, law and political power may be employed to excuse injustice, barbarity and crime done to a people because of race and color.

“There can be no possible belief that these people were inspired by any consuming zeal to vindicate God's law against miscegnationists (the criminal sinner) of the most practical sort.  The woman was a willing partner in the victim's guilt, and being of the ‘superior’ race must naturally have been more guilty.”
Today, not only do we need to carefully watch members of the  C.S.P.O.A., and the Joe Arpaios of the United States of America, but the safety of our Democracy as well.  The self-righteous, the powerful, the dangerous, and the stupid, do not care about our freedoms.  They do not care about justice; they care about themselves, their cronies, and their power.

Mike Pence, Donald Trump, and other conservative Republicans, know the laws are not there to nourish authoritarianism, and especially in what the C.S.P.O.A. calls a constitutional sheriff, public servants with the final say on any law's constitutionality.  Ashley Powers wrote about this recently for The New Yorker, and it's frightening.

Harper's Magazine, too, has written about what happens when freedoms are challenged simply because folks can't, or won't, help others in need.  Nobody wants anarchy, but certainly doing nothing when others need help is not what Christ taught us, nor anyone else who laid claim to wisdom and divine knowledge.

The expanding militia movement of anti-government paramilitary groups should not be scapegoated.  Rather common humanity must prevail.  These groups have descended from a posse ideology, according to Powers, which has been a part of our country for over 150 years.

Almost all states continue the longstanding legal tradition that armed citizens may be summoned to aid of law enforcement, said David B. Kopel in The Posse Comitatus and the Office of Sheriff: Armed Citizens Summoned to the Aid of Law Enforcement.  But wherever outsiders are no longer welcomed, America dies another death.  The posse comitatus doctrine must be reevaluated.  It simply cannot remain unchecked.

The Posse Comitatus Act is a little different.  It has been weakened, but still keeps the military in check, while allowing for military support needed for national emergencies.

But a community, and its sheriff, should not have the right to make up its own laws.  We have flourished as a nation because we care about those in need.  Our willingness to help others must not be forsaken for those who refuse to see what's happening in the world.  Many hide behind blinds of self-righteous pugnacity, but they must not be allowed to force another to see the world as they see it.

We can always debate what helping others in need means, but we cannot stay hidden from ugly truths.  Mob violence killed and maimed not only the weak and helpless, but all with a shred of empathy.  Stupidity and greed will only destroy the nation.  Sadly, the only ones who will be left behind, should it happen, will be the ones who destroyed it.