The posse comitatus and the office of sheriff: armed citizens summoned to the aid of law enforcement.

AuthorKopel, David B.
PositionIntroduction through II. The Posse Comitatus for the Keeper of the Peace E. Posse Comitatus in Late Nineteenth Century America to the Present, p. 761-804 - Symposium on Guns in America

Posse comitatus is the legal power of sheriffs and other officials to summon armed citizens to aid in keeping the peace. The posse comitatus can be traced back at least as far as the reign of Alfred the Great in ninth-century England. The institution thrives today in the United States; a study of Colorado finds many county sheriffs have active posses. Like the law of the posse comitatus, the law of the office of sheriff has been remarkably stable for over a millennium. This Article presents the history and law of the posse comitatus and the office of sheriff from their earliest days to the present. This Article also describes how the past and present of the posse comitatus can be used in interpretation of the Second Amendment.

TABLE OF CONTENTS INTRODUCTION I. THE CONSTITUTIONAL OFFICE OF SHERIFF A. Anglo-Saxon Liberties B. The Anglo-Saxon Sheriff C. The Sheriffs Office from the Norman Conquest to the Fourteenth Century 1. Sheriffs' Courts 2. Election of Sheriffs 3. Sheriffs Oath of Office and Bond D. The English Office of Sheriff in the Seventeenth Century and Thereafter 1. Autonomous and Indivisible 2. Modern Role in the United Kingdom E. The Sheriff in America II. THE POSSE COMTATUS FOR THE KEEPER OF THE PEACE A. Posse Comitatus in England B. Posse Comitatus in Colonial America and the Revolution C. After Independence D. Posse Comitatus and the Civil War 1. Before the War 2. After the War E. Posse Comitatus in Late Nineteenth Century America to the Present F. Who Is Subject to Posse Comitatus Duty? G. Arms of the Posse Comitatus III. COLORADO SHERIFFS AND THEIR POSSES A. Posse Comitatus in Crime Emergencies 1. Pitkin Sheriffs Office 2. Hinsdale Sheriffs Office 3. Rio Blanco Sheriffs Office 4. Jackson Sheriffs Office 5. Larimer Sheriffs Office 6. Morgan Sheriffs Office B. Posse Comitatus in Low-Risk Situations C. Trained Posse Comitatus in Forcible Law Enforcement Situations 1. Alamosa County Sheriffs Office 2. Baca County Sheriffs Office 3. Custer County Sheriffs Office 4. Delta County Sheriffs Office 5. Douglas County Sheriffs Office 6. Elbert County Sheriffs Office 7. Hinsdale County Sheriffs Office 8. Kiowa County Sheriffs Office 9. Lincoln County Sheriffs Office 10. Logan County Sheriffs Office 11. Montezuma County Sheriffs Office 12. Morgan County Sheriffs Office 13. Prowers County Sheriffs Office D. The Colorado Mounted Rangers IV. Posse Comitatus: The Right--and Duty--to Keep and Bear Arms CONCLUSION APPENDIX INTRODUCTION

Most people know that in the American frontier West, sheriffs sometimes summoned "the posse" to assist in keeping the peace. The sheriffs 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 its 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's role as a constitutional officer who is elected directly by the people and enjoys great independence in the performance of his duties. While 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 twenty-first century United States is essentially the same as the posse comitatus law of England during the ninth century. The sheriff in carrying out his peacekeeping duty may summon to his aid the able-bodied adults of the county. He 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 play numerous roles in Colorado. They have thwarted the escapes of criminals, including serial killer Ted Bundy. They also function as a citizen volunteer corps on a regular, structured basis; they assist sheriffs during county fairs, weather emergencies, and hostage situations, among 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 as needed.

Finally, Part IV considers the relationship 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 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 one would inevitably destroy the other. The Second Amendment's protection of the arms rights of citizens has the necessary effect of ensuring 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 thus have proper third party standing to defend and advocate for the Second Amendment rights of citizens in their jurisdictions.

Following this Article, a lengthy Appendix summarizes state statutes related to the posse comitatus-, almost all states continue the longstanding legal tradition that armed citizens may be summoned to aid of law enforcement.

The founding father of the posse comitatus was the first true King of England: Alfred the Great, who ruled from A.D. 871-899. One reason he is the only English king called "the Great" is that he recognized that he could not fulfill his own duties solely through his own appointees. To keep "the King's peace," the government needed the active participation of the people. Routine suppression of violent crime and emergency community defense against riots, insurrections, and invasions all require that the armed people actively defend the authority of the government. This is a moral point of the Second Amendment and of its counterparts in state constitutions. This is the "active liberty" extolled by Justice Breyer. (1) Armed citizens, under the guidance of the leaders chosen by the citizens, can embody and effectuate law and order.


    This Part explains the history of the office of sheriff, from its Anglo-Saxon origins through its present role in the United States. Section A explores why the Anglo-Saxon model was so revered by the American Founders. Section B then describes the origins and features of the office of sheriff in Anglo-Saxon England. Section C shows the continuity and changes in the office in the three centuries following the Norman Conquest of 1066. The most important development was the demise of the custom of electing sheriffs. Section D describes the long, slow decline of the office of sheriff in England from the seventeenth century to the present. Finally, Section E shows how the office of sheriff has thrived in America, from colonial days to the present. On both sides of the Atlantic, the sheriff was legally autonomous, but in America, the practical autonomy, responsibility, influence, and power of the sheriff were much greater. In addition, the custom of electing sheriffs was restored in America after centuries of disuse. Popular elections became an explicit requirement of most state constitutions.


      To the American Founders, England before the Norman Conquest of 1066 was a land of liberty. (2) The American Revolution began because of violations of "the rights of Englishmen" (including the right to bear arms) as those rights existed in the late eighteenth century. (3) However, as with many revolutions, the ambitions for reform grew as the war continued. (4)

      The importance of the people's right to bear arms was clear from the start of the Revolution. The war began on April 19, 1775, when Americans used their firearms to fight British soldiers who confiscated firearms and gunpowder by conducting house-to-house searches in Lexington and Concord. (5) The Americans chased and harried the Redcoats back to Boston, besieged them there, and fought several battles. (6) On March 17, 1776, the British departed Boston by ship. (7)

      The revolutionaries valued Anglo-Saxon traditions. After the Declaration of Independence was announced, the Continental Congress had to decide on the public symbols of the new nation, so on July 6, 1776, a committee discussed the design of the Great Seal of the United States. Thomas Jefferson urged that the reverse of the seal depict "Hengist and Horsa, the Saxon Chiefs, from whom We claim the Honour of being descended and whose Political Principles and Form of Government We have assumed." (8) Hengist and Horsa were the first Anglo-Saxon rulers in England, from the fifth century A.D. (9)

      The American Revolutionaries and their European intellectual ancestors believed that societies of liberty had existed in ancient times, and that one purpose of political activity was to recover that lost liberty--especially to ensure that the government ruled under The Law, and not above it. (10)

      The eighteenth century Americans who (like many Englishmen of the time) viewed Anglo-Saxon England as a historical model of freedom were part of a longstanding tradition of idealizing the ancient free Germanic tribes, who seemed so different from the despotic Roman Empire and the European governments of the second millennium A.D. The idealization of Germanic liberty can be traced back as far as the...

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