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

• Author: Kopel, David B.
• Position: II. The Posse Comitatus for the Keeper of the Peace F. Who is Subject to Posse Comitatus Duty? through Conclusion with appendix and footnotes, p. 804-850 - Symposium on Guns in America

6. WHO IS SUBJECT TO POSSE COMITATUS DUTY?

   Posse comitatus is like the jury: it is a law enforcement duty of the citizen, and a person who fails to perform either duty may be criminally punished. (239) This principle is not in desuetude, but has been affirmed by state court cases from the late twentieth century. (240) The posse duty inheres in the inhabitants of the county; that is, the Sheriff of Hinsdale County can command posse service only from the inhabitants of Hinsdale County. (241)

   Exemptions of able-bodied males from posse duty are rare. (242) One 1848 English treatise (243) said that nobles did not have to serve in the posse comitatus, but many other prominent English commentators have viewed posse duty as encompassing everyone regardless of rank. (244) As with militia service, persons who are not able-bodied are exempt; some but not all commentators state that clergymen are exempt. (245)

   Unlike with militia service, there is not necessarily an upper age limit for posse comitatus. In the view of some commentators, if you are sixty-five years old and able-bodied, you may be exempt from the militia, but not from posse comitatus, (246) James Wilson stated in 1790 that "[n]o man above fifteen and under seventy years of age, ecclesiastical or temporal, is exempted from this service." (247) The traditional lower age limit for posse comitatus duty was fifteen years old, which was six years below the age of majority in England and the United States. (248) One might argue that changing views about the legal responsibilities of minors might militate for eighteen years as the limit in the United States today.

   Women were traditionally exempt. (249) Arguably, the exemption has continuing legal validity by analogy to women still being exempt from conscription into the U.S. military (250) and into the statutory militia of the United States. (251) On the other hand, the Virginia Military Institute case forbids women being excluded from state military service and training unless the exclusion has an "exceedingly persuasive justification." (252) Moreover, posse members will be assisting state or federal law enforcement officers, and these days, many such officers are female. Given that women are universally recognized as capable of serving as sworn law enforcement officers, it seems difficult to argue that any inherent characteristics of women in general disable them from being able to participate in a posse. At the least, the authority of a twenty-first century American sheriff to choose to accept female volunteers in the posse comitatus seems incontestable. As for the number of persons which a sheriff or other authorized official may summon, the decision is entirely up to that officer. (253)

7. ARMS OF THE POSSE COMITATUS

   Because the sheriff must keep the peace, it is axiomatic that he "may lawfully beare armour or weapons." (254) Because the sheriff and his officers may lawfully bear armour or weapons, so may his posse comitatus, (255) Thus, persons summoned to the posse comitatus "may take with them such Weapons as shall be necessary to enable them effectually to do it...." (256) The posse member must bring not only arms, but also whatever other instruments, such as automobiles, are necessary for service, as Justice Benjamin Cardozo explained in 1928. (257) However, the person who is summoning the posse has "discretion" as to "how many, or few, they have to attend them in their business, and in what form they shall be armed, weaponed, or otherwise furnished for it." (258)

   As will be detailed below, Colorado sheriffs' policies for posse armament vary depending on the circumstances and the exigencies of the situation. Usually, Colorado posses are used in situations where advance planning and training are possible. Sometimes, the sheriff prefers that they not be armed, as when providing gate security at a county fair. Other sheriffs might allow posse members in such a situation to carry a handgun if the person has a concealed handgun carry permit; the posse member would simply carry whatever handgun he or she usually carries for lawful protection. At other times, posses are deployed in higher-risk environments. These trained members may be called upon, for example, to assist in the service of high-risk warrants, or in a hostage siege. For such posse members, the sheriffs' policies may be prescriptive about particular arms to be carried. Finally, there are situations in which the citizens of a county may need to provide assistance on an ad hoc basis in an emergency, such as the manhunts for the escaped serial killer Ted Bundy or for the murderers of the Hinsdale County Sheriff. (259) Then, the citizens simply bring whatever arms they happen to own.

   As a general policy, it is often best when posse members have the same types of firearms as those carried by a full-time certified sheriffs deputy. Having similar arms means that in an emergency, the firearms, magazines, and ammunition are interchangeable. For example, if a deputy runs out of ammunition, a posse member can quickly provide a fresh magazine that will fit the deputy's gun.

   Broadly speaking, compatibility with American law enforcement firearms would mean the following:

   * For handguns, a full-size (not compact or subcompact) (260) semiautomatic pistol in the calibers of 9mm, .40, or .45, made by a reputable manufacturer such as Smith & Wesson, Glock, or Ruger. Some sheriffs' offices may use a standardized .40 caliber only.

   * The magazines for such firearms generally hold up to twenty or twenty-one rounds in 9mm, up to sixteen rounds in .40, and up to thirteen in .45 caliber. A sheriff's office may or may not allow the use of extenders to add one to three rounds of ammunition capacity.

   * A person should carry at least two spare magazines. (261) For rifles, an AR-15 platform semiautomatic rifle in .223 or .308 caliber.

   * For the rifle, a magazine of twenty or thirty rounds, although a few allow the choice of ten.

   * For shotguns, a pump-action shotgun, most commonly the Remington 8700, at least two spare magazines of the same size. (262)

   The above are not the firearms of tactical officers such as "SWAT" or "emergency services." These special teams often use machine guns, stun grenades, and the like. Rather, the aforesaid arms such as the 9mm handgun or the AR-15 rifle are the typical firearms of an ordinary deputy on road patrol, ready to face a wide variety of possible situations.

   3. COLORADO SHERIFFS AND THEIR POSSES

   This Part describes the use of posse comitatus in modern Colorado. Most of the materials presented are based on interrogatory and document production discovery responses from sheriffs' offices in the case of Colorado Outfitters Association et al. v. Hickenlooper, (263) In that case, fifty-five of Colorado's sixty-two elected county sheriffs, as well as other plaintiffs, have filed a federal civil rights lawsuit against two gun bills passed by the Colorado legislature in March 2013. The plaintiffs contend that the bills violate the Second Amendment, the Fourteenth Amendment, and the Americans with Disabilities Act. (264) I am the attorney for the fifty-five sheriff plaintiffs and for one retired police officer. (265)

   This Part first provides the definitions and legal standards for various types of peace officers in Colorado. Section A then details some modern uses of the posse comitatus in Colorado during crime emergencies. The remainder of Part III describes a relatively new development in the posse comitatus: sheriffs using a posse of trained volunteers on a regular basis. Section B briefly describes volunteer posse use for routine non-crime situations, such as providing security at a parade or fair. Section C summarizes how Colorado sheriffs use their trained posses for violent crime control. Finally, Section D describes a civic organization called the Colorado Mounted Rangers, whose members train to high standards, and who make themselves available as posse comitatus to the twenty-eight law enforcement agencies with whom they have memoranda of understanding. Sheriffs and other chief law enforcement officers call out the Colorado Mounted Rangers during fire emergencies and in many other situations.

   Let us begin by describing some terms for persons who serve Colorado in law enforcement. Most states have analogous statutes or mies. A "certified" or "sworn" officer is a person who has completed a certain number of hours of training pursuant to the statewide standards for Peace Officer Standards and Training (POST). The training may be provided by law enforcement offices themselves, by community colleges, or by some other institution. A person who has completed the course of instruction and passed a test thereon is eligible to be hired as a full-time certified peace officer. A person who completes a shorter course of training is eligible to be a "reserve" officer. Reserve officers typically serve as volunteers for a local law enforcement agency and are called to duty as necessary. Reserve officers are "peace officers" for all legal purposes in Colorado. (266)

   By the practices of all Colorado sheriffs' offices, every full-time deputy who is engaged in dealing with the general public (e.g., road patrol, detective work, undercover) will be a POST-certified officer who has passed a 1,500-hour course. These full-time employees may sometimes be supplemented by volunteer reserve officers. By Colorado statute (and by common law), sheriffs have the authority to hire and fire whomever they like, and to summon posses. (267) Unlike in a municipal police department, sheriffs' deputies are not part of the civil service and do not engage in collective bargaining.

   Based on available manpower, sometime sheriffs hire "noncertified" full-time deputies for more limited roles. The most common such role is being a jail deputy ("detention deputy"). (268) Other duties include providing security at courts and for the transport of prisoners, and in special...