Anthony J. Ghiotto[*]

[Full text of this Article in PDF is available at this link]

Introduction

On March 10, 2009, Michael McClendon shot and killed his mother in their hometown of Kinston, Alabama.[1] He then travelled to Samson, Alabama, where he shot and killed five additional family members.[2] McClendon then fled in his vehicle, continuing to shoot other motorists and innocent bystanders all while leading police on a twenty-four mile chase throughout rural Alabama.[3] The chase ended in a police shootout and resulted in McClendon committing suicide.[4] In total, McClendon’s shooting spree resulted in ten deaths and lasted less than one hour.[5]

Beyond the loss of life, McClendon’s killing spree caused concern and havoc in these small rural communities.[6] It also overwhelmed local law enforcement, which was tasked with apprehending McClendon while also providing security and order to the concerned community.[7] Local law enforcement turned to the U.S. Army, located nearby at Fort Rucker, for assistance.[8] The Army, acting with the intent to “be a good Army neighbor and help local civilian authorities facing a difficult, unique tragedy,” sent twenty-two military police officers to relieve law enforcement at traffic checkpoints around the multiple crime scene areas.[9]

Although this use of the Army to aid civilian law enforcement appears rather innocuous and was an attempt to be “a good Army neighbor,” it was in fact a violation of federal law.[10] The Posse Comitatus Act (“PCA”), codified in 18 U.S.C. § 1385, provides:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.[11]

In effect, the PCA “eliminate[s] the direct active use of Federal troops by civil law authorities”[12] and “prohibits Army and Air Force military personnel from participating in civilian law enforcement activities.”[13]

In many ways, the McClendon murders are symptomatic of the issues regarding the PCA. First, the PCA appears to tie the hands of both the military and local law enforcement. The military has a seemingly endless budget, a wealth of manpower, and endless capabilities.[14] It is somewhat counterintuitive to restrict the use of those capabilities to assist a community in need.[15] Second, it is not always clear what constitutes a violation of the PCA.[16] The commander of the Alabama Bureau of Investigation office in Dothan, Alabama, noted that “I myself am a retired lieutenant colonel . . . I understand about Posse Comitatus and how that works . . . I know where the line is—and I didn’t see that line crossed.”[17] Third, the PCA presents serious enforcement issues. Under the PCA, the Army commander who deployed the soldiers is subject to a fine or two years of confinement;[18] however, no charges were brought against him.[19] In fact, the primary investigation into whether these actions violated the PCA was an Army Office of the Inspector General investigation, with there being no indication of any other federal or criminal investigation.[20] The Army Inspector General concluded that the use of military for civilian law enforcement was a PCA violation, but the only consequence was administrative action taken against an unnamed individual.[21] Considering that no one has been charged under PCA[22] and the military holds the public’s trust and confidence, it is unlikely that an elected government official would prosecute a military member for a PCA violation, especially when the violative act was well-intentioned. The result is that the regulated agency—the military—is left to decipher and enforce the criminal statute that is meant to restrict its behavior.[23]

Nonetheless, these issues should not result in continued disregard of the PCA, but should rather lead to a reexamination of it. This Article makes a relatively straightforward but novel argument—the Constitution affords each American a right to be free from military control, meaning each individual has the right to be free from the federal military exercising or threatening any actual or apparent authority over her actions unless Congress or the President has constitutionally granted the military such authority. Because the enforcement of civilian law inherently involves the military exercising some control over a citizen, this Article argues that the PCA is an effort by Congress to protect that right. As a statute designed to safeguard a constitutional right, there must be an effective enforcement mechanism. The most appropriate enforcement mechanism available for violations of the PCA is the exclusionary rule, which allows courts to suppress illegally obtained evidence and thereby deters future violations.

This Article proceeds in five parts. Part I addresses the constitutional right to be free from military control and the threat posed by the military enforcing civilian law. It begins by examining the Framers’ fears of standing armies; specifically, that standing armies, whether on their own initiative or at the direction of the Executive, may overthrow the republican government or deprive individuals of their basic liberties.[24] Based on this fear, the Framers guaranteed the right to be free from military control by constitutionalizing protections against the military exerting control over civilians absent a constitutionally permissible grant of authority by Congress or the President. These protections included subordinating the military to civilian leadership under the President as Commander-in-Chief, diffusing authority over the military via the constitutional separation of powers, and guaranteeing the right through the Bill of Rights.

Part II argues that the PCA is a subconstitutional check that protects the constitutional right to be free from military control. The use of military power in civilian affairs will always be a temptation for government officials. The early history of the United States illustrates this temptation, as several presidential administrations utilized the military for law enforcement purposes.[25] And when the public supports the use of military power or excessively trusts the military, this temptation only increases.[26] Congress witnessed “gross abuses” of military involvement in civilian law enforcement during the Reconstruction Era and determined that the constitutional provisions ensuring the freedom of civilians to be free from military control did not provide enough protection against such abuses.[27] This led Congress to enact the PCA as a subconstitutional check to protect the right to be free from military control, providing a second layer of protection.[28]

Part III shifts focus to the exclusionary rule. Although the PCA provides its own enforcement mechanisms—a fine, two years of confinement, or both—such enforcement is unlikely. There have been no prosecutions under the PCA.[29] As such, there is little, if any, deterrence for violating the PCA.[30] This Article argues that excluding any evidence obtained as a result of violating the PCA would provide a third level of protection against military control. But while applying the exclusionary rule to violations of statutes like the PCA would prevent such violations, the question remains whether courts have the power to do so. This question is especially relevant because recent cases have called into question the continued viability of long-held precedent allowing for the exclusionary rule as a remedy to statutory violations.[31] This Part traces the development of the exclusionary rule through the lens of what government activities trigger the exclusionary rule as a potential remedy and what tests the courts use in applying it.

Part IV explores the tension between the exclusionary rule and the PCA, focusing on defining what constitutes a PCA violation, whether a PCA violation can trigger the exclusionary rule as a potential remedy, and how courts can apply the rule if it is triggered.

This Article concludes in Part V by establishing that violations of the PCA not only can trigger the exclusionary rule, but should trigger it, because its application will deter future violations, establish respect and compliance for the PCA, and fulfill the PCA’s purpose as a subconstitutional check. The Article then proceeds to make a normative argument for a transition away from a Fourth Amendment exclusionary rule and towards a Posse Comitatus Act exclusionary rule built upon a procedural due process analysis in its application.

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[*] Assistant Professor of Law, Campbell University School of Law. J.D. 2005, Emory University School of Law; B.A. 2001, University of Illinois. I thank Callie Davis, Michelle Dewkett, Derek Dittmar, Santiago Arroba-Rodriguez, and Sarah Sponaugle for their research assistance. I also thank Prof. Shawn Fields for his insight and support and Lt Col Randy Hicks for introducing me to the wealth of caselaw on posse comitatus act violations.

[1] Shaila Dewan & A.G. Sulzberger, Officials Identify Alabama Gunman, N.Y. Times (Mar. 11, 2009), https://www.nytimes.com/2009/03/12/us/12alabama.html [https://perma.cc/6PJ9-6F4T].

[2] Id.

[3] Id.; Emily Friedman, Alabama Shooter Michael McClendon Was ‘Quiet’, ABC News (Mar. 11, 2009), https://abcnews.go.com/US/story?id=7056936&page=1 [https://perma.cc/R3J6-Z2GG].

[4] Eyewitnesses Describe Alabama Shooting Terror, Today (Mar. 11, 2009), https://www.today.com/news/eyewitnesses-describe-alabama-shooting-terror-1C9015667 [https://perma.cc/S678-27GK].

[5] Jay Reeves, 24 Miles of Terror: Alabama Killer’s Massacre Mapped, NBC Washington (Mar. 12, 2009, 10:15 PM), https://www.nbcwashington.com/local/24-miles-of-terror-alabama-killers-massacre-mapped/1887755/ [https://perma.cc/9YPB-3DK9].

[6] Shooter Planned ‘To Go Out in Grand Style,’ Investigator Says, CNN (Mar. 12, 2009, 9:58 PM), http://www.cnn.com/2009/CRIME/03/12/alabama.shooting/index.html [https://perma.cc/P6DK-3CW5].

[7] Army: Troop Use in Ala. Shootings Broke Law: Investigation Concludes Soldiers Should Not Have Been Sent to Help, NBC News (Oct. 19, 2009, 9:51 PM), http://www.nbcnews.com/id/33388485/ns/us_news-military/t/army-troop-use-ala-shootings-broke-law/#.XWmP2vZFzhk [https://perma.cc/JL2J-HCLW].

[8] Id.

[9] See id.

[10] Melissa Braun, Inquiry Finds Soldier Acted in Samson Illegally, Se. Sun (Nov. 8, 2009), http://www.southeastsun.com/fortrucker/article_c670ef99-33d4-57fe-90c7-4ca41108e052.html [https://perma.cc/SU3X-39S8].

[11] 18 U.S.C. § 1385 (2018) (originally enacted as Act of June 18, 1878, ch. 263, 20 Stat. 152); see also United States v. Dreyer, 804 F.3d 1266, 1272 (9th Cir. 2015) (en banc) (“Posse comitatus (literally ‘power of the country’) was defined by common law as all those over the age of 15 upon whom a sheriff could call for assistance in preventing any type of civil disorder.”); Gautham Rao, The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America, 26 Law & Hist. Rev. 1, 2 (2008) (“In antebellum 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.”).

[12] United States v. Banks, 539 F.2d 14, 16 (9th Cir. 1976).

[13] Dreyer, 804 F.3d at 1272.

[14] See Rosa Brooks, How Everything Became War and the Military Became Everything 318–19 (2016) (“The United States spends more on defense than any other nation. In fact, it accounts for 41 percent of global defense spending . . . with its vast budget and complex accounting system, the Pentagon is an infamous money pit.”).

[15] See Joshua M. Samek, The Federal Response to Hurricane Katrina: A Case for Repeal of the Posse Comitatus Act or a Case for Learning the Law?, 61 U. Miami L. Rev. 441, 443 (2007) (“In the weeks immediately following Hurricane Katrina, many politicians called for reform or repeal of the Posse Comitatus Act, arguing that it prevented the military from rapidly deploying forces into New Orleans to restore order and conduct humanitarian missions.”).

[16] See Gary Felicetti & John Luce, The Posse Comitatus Act: Setting the Record Straight on 124 Years of Mischief and Misunderstandings Before Any More Damage is Done, 175 Mil. L. Rev. 86, 144–50 (2003).

[17] Pete Winn, Army MP’s ‘Just Showed Up’ and ‘Didn’t Cross the Line,’ Alabama Law Enforcement Official Says, CNSNews (Mar. 18, 2009, 6:41 PM), https://www.cnsnews.com/news/article/army-mp-s-just-showed-and-didn-t-cross-line-alabama-law-enforcement-official-says [https://perma.cc/YTT5-ERKK].

[18] 18 U.S.C. § 1385.

[19] See Army: Troop Use in Ala. Shootings Broke Law: Investigation Concludes Soldiers Should Not Have Been Sent to Help, supra note 7.

[20] See Army: Troop Use in Ala. Shootings Broke Law: Investigation Concludes Soldiers Should Not Have Been Sent to Help, supra note 7.

[21] See Army: Troop Use in Ala. Shootings Broke Law: Investigation Concludes Soldiers Should Not Have Been Sent to Help, supra note 7.

[22] See Felicetti & Luce, supra note 16, at 163 n.337 (citing H.R. Rep. No. 97-71, pt. I (1981), as reprinted in 1981 U.S.C.C.A.N. 1787) (“According to a spokesman for the Department of Justice, no one has been charged or prosecuted under the Posse Comitatus Act since its enactment. Testimony of Edward S.G. Dennis Jr. on behalf of the Department of Justice.”); see also City of Airway Heights v. Dilley, 45 Wash. App. 87 (Wash. App. 1986) (“Nor is there authority that a prosecution [has ever been] pursued for violation of the act.”).

[23] Cf. The Federalist No. 51 (James Madison) (“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place . . . If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”).

[24] See Laird v. Tatum, 408 U.S. 1, 18 (1972) (Douglas, J., dissenting) (quoting Luther Martin, Genuine Information, in 3 Records of the Federal Convention 209 (Max Farrand ed., 1911)) (“[W]hen a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army.”).

[25] See, e.g., Felicetti & Luce, supra note 16, at 97–99 (“Legislative and executive action in the early days of the American republic confirm that the use of federal troops or federalized militia to preserve domestic order, either as part of a posse comitatus or otherwise, was an accepted feature of American life under the new Constitution.”).

[26] See generally Charles J. Dunlap, Jr., Welcome to the Junta: The Erosion of Civilian Control of the U.S. Military, 29 Wake Forest L. Rev. 341, 357–361 (1994).

[27] State v. Pattioay, 896 P.2d 911, 927 (Haw. 1995) (Ramil, J., concurring) (citing Clarence I. Meeks, Illegal Law Enforcement: Aiding Civil Authorities in Violation of the Posse Comitatus Act, 69 Mil. L. Rev. 83, 89-92 (1975)). Cf. United States v. Hartley, 486 F. Supp. 1348, 1357 (M.D. Fla. 1980) (stating that the PCA guards against military permeation of civil law enforcement).

[28] See S. Rep. No. 97-58, at 148 (1981) (“The Posse Comitatus Act . . . embodies the inveterate and traditional separation between the military’s mission and civilian law enforcement efforts.”).

[29] Felicetti & Luce, supra note 16, at 163 n.337.

[30] Cf. Lee v. Florida, 392 U.S. 378, 386–87 (1968) (discussing the necessity of the exclusionary rule to disincentivize violations of § 605 of the Communications Act because the Act’s penal provisions alone had failed to do so).

[31] See, e.g., Craig M. Bradley, Is the Exclusionary Rule Dead?, 102 J. Crim. L. & Criminology 1 (2012); Wayne R. LaFave, The Smell of Herring: A Critique of the Supreme Court’s Latest Assault on the Exclusionary Rule, 99 J. Crim. L. & Criminology 757 (2009); Tracey Maclin & Jennifer Rader, No More Chipping Away: The Roberts Court Uses an Axe to Take Out the Fourth Amendment Exclusionary Rule, 81 Miss. L.J. 1183 (2012); David Alan Sklansky, Is the Exclusionary Rule Obsolete?, 5 Ohio St. J. Crim. L. 567 (2008).