The military cannot be used for policing

A federal judge got it exactly right when he declared Trump's military deployment to Los Angeles was illegal.

Federal Judge Charles R. Breyer got it exactly right: President Donald Trump’s use of troops in Los Angeles in response to anti-Immigration and Customs Enforcement protests violated federal law. Troops on the streets is a familiar sight in countries with authoritarian rulers, not in the United States.

The Posse Comitatus Act, adopted in 1878, prohibits the use of the military for domestic law enforcement. After a trial, Breyer found that the troops in Los Angeles were used to create “traffic blockades, engage in crowd control, and otherwise demonstrate a military presence in and around Los Angeles.” He thus concluded: “In short, Defendants violated the Posse Comitatus Act.”

There is a long, important tradition in the United States of military troops not being used for domestic law enforcement. The military and the police perform very different functions. Military personnel are trained for combat situations, including using lethal force. They are not trained for domestic law enforcement tasks, such as community policing, de-escalation tactics, and crisis intervention. Police are trained about the constitutional rights that must be observed in law enforcement, such as the Fourth Amendment, which allows people to be stopped only if there is reasonable suspicion that they have committed or are likely to commit a crime, and to be arrested only if there is probable cause. This is not part of military training or military operations.

Most policing is done at the local level and is subject to local control. By contrast, the military is commanded by the president. Using troops for domestic law enforcement increases the power of the president at expense of state and local governments. That is exactly what occurred in Los Angeles when Trump used National Guard troops and Marines over the objections of Los Angeles Mayor Karen Bass and California Gov. Gavin Newsom.

But it is not just tradition that limits the use of the military for policing. The Posse Comitatus Act explicitly forbids it. After the Civil War, during Reconstruction, there was military rule over the former rebel states. A military general was in charge of each area, and federal troops were responsible for law enforcement. A “posse comitatus” exists when people are called into service to function as police.

Not surprisingly, after the end of Reconstruction in 1877, Congress passed and President Rutherford B. Hayes signed a law preventing the military from being used in this way. The current version states: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space 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.”

The law’s legislative history makes clear that it was always about prohibiting the military from being used for domestic law enforcement purposes. Federal courts have held that the Posse Comitatus Act forbids the military from engaging in activities such as making arrests, seizing evidence, searching persons or buildings, interviewing witnesses, pursuing escaped criminals, and searching for suspects. As Breyer noted, the Posse Comitatus Act is violated if “the military has executed domestic law or actively assisted with the execution of domestic law.”

And that is exactly what Breyer found occurred in Los Angeles. Breyer said that the trial “record is replete with evidence that [the troops] executed domestic law in . . . prohibited ways.” He concluded that the president and the federal government violated the Posse Comitatus Act “willfully.”

Trump has been emphatic that he wants to use the military for domestic law enforcement in other cities. Now, Breyer’s ruling can be a model for judges around the country in stopping the president from using the military in this way.

Trump already used the National Guard – with governors of several red states sending troops – for law enforcement in Washington, D.C. The images are deeply disturbing. Despite D.C. being granted home rule in the 1970s, it is still a federal district, giving the president and Congress more authority over it. Trump has talked of sending troops to Chicago, New York, Baltimore, San Francisco, and Oakland—places where he has no authority over law enforcement.

So much of what Trump has done in the past seven months has violated the Constitution and federal laws and ignored long-standing traditions and norms. But the most chilling of his actions is using the military for policing in the United States. Breyer was right to enjoin it in Los Angeles, and other judges must do the same if Trump violates the Posse Comitatus Act and sends troops to other cities. Congress must act to put a stop to it by preventing federal funds for the military from being used for domestic law enforcement. And the people must speak loudly and clearly against this.

On Aug. 26, Trump, in discussing the ability use troops for law enforcement, said, I have “the right to anything I want to do. I’m the president of the United States.” But, in a nation committed to the rule of law, the president can’t do anything he wants, not if we are to remain a constitutional democracy.

Erwin Chemerinsky is dean and Jesse H. Choper Distinguished Professor of Law at the University of California Berkeley School of Law.

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