When disaster strikes in the United States, the Federal Government often provides various intervention measures. Perhaps the two most common of those measures are the use of the Federal Emergency Management Administration, better known as FEMA, and the deployment of the National Guard to keep law and order. The National Guard is deployed to assist local law enforcement during troubled times when there are power outages and other depleted infrastructure.
Suppose a member of the National Guard arrests someone for a crime. On its face, this should have the same effect as a member of the local police force performing the arrest. In general, such is the case. However, the Federal Government’s right to act, via the National Guard, are not always within its power.
Use of Military Force
The use of Federal military force stems from the Posse Comitatus Act of 1878. Posse Comitatus, latin for “power of the state,” makes it a crime to use military force without the express consent of Congress. Therefore, if a National Guardsman performs an arrest when the arrest occurs outside the purview of the Posse Comitatus Act, the arrest is illegal and should be voided.
Congressional Action
There is no requirement of specific Congressional Action for authorizing National Guard deployment every time a disaster strikes; instead, Congress outlines scenarios when it bestows upon the National Guard the right to use military force. Examples of when National Guard deployment is generally lawful:
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Disaster assistance;
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Search and rescue events;
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Domestic terror cases;
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Various civil disturbances;
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When needed to protect civil rights.
Civil Rights Era
The Civil Rights era of the 1950s, 1960s, and 1970s saw much National Guard deployment to help implement desegregation. Starting with the seminal Supreme Court cases of Brown v. Board of Education and Bowling v Sharpe, the United States and local governments instituted polices of forced busing and other desegregation measures. As the Supreme Court noted, segregated schools were unconstitutional but had to change at a gradual pace. Over a 20-year period, desegregation occurred through military force.
To help assist with desegregation policies, the National Guard deployed to various locales to help implement these policies. Often, buses containing a small amount of students from a minority community were sent to a school in a white district. People threw things at the buses and harassed the minority students. The students were often the target of abuse at the hands of both teachers and students. The National Guard assisted in transitioning desegregation during these turbulent times.
This was a proper use of government military power. As the Supreme Court noted, school segregation policies violated the Constitution’s Equal Protection clause. To correct the wrong and uphold minority student civil rights, the National Guard was deployed to Boston, Omaha, Los Angeles, and similar places.
National Guard Arrest
As mentioned, National Guard arrests may be proper. However, a National Guardsman performing an arrest may be illegal. If there is no Congressional authorization to act, e.g. National Guardsman sees someone on the street and arrests him, the arrest should be voided.
Arrested? Contact the criminal defense firm of Christopher Abel.
(image courtesy of Daniel Tafjord)