An Arrest By Any Other Name Would Smell As Much A Violation Of The Posse Comitatus Act
The Marines know they can't 'arrest' people, so they're just calling it something different! The post An Arrest By Any Other Name Would Smell As Much A Violation Of The Posse Comitatus Act appeared first on Above the Law.
Another milemarker on the George Orwell expressway blurred past America’s window this morning while the country metaphorically looked down to text-and-drive. As Marines descended upon Los Angeles to join the National Guard units already questionably legally called up, the Defense Department assured critics that they would only NOT arrest people — something they cannot legally do — but merely involuntarily detain people to hand over to local law enforcement.
Which is what the rest of us call “an arrest.”
The distinction lovingly crafted by the administration’s Newspeak Generator matters so much because Trump has not invoked the full force of the Insurrection Act. It may be shocking to see self-driving cars on fire — or more accurately, shocking to see self-driving cars that aren’t Teslas on fire — but a couple burning cars does not a rebellion make. When storming the Capitol to hang the vice president isn’t an insurrection, it’s hard to see where one even draws the line with this administration. But as long as the Insurrection Act remains holstered, the troops deployed to L.A. are constrained by Posse Comitatus, barring law enforcement activity and limiting the units to support and logistics. In other words… no arresting people.
As the commanding officer leading the Marine detachment explained, “They do not do any arrest, they are strictly there to detain, to wait for law enforcement to come and handle those demonstrators.”
Yep, that’s an arrest. An arrest is effected once an individual is no longer free to walk away from the arresting official. It doesn’t matter if they’re being detained by a police officer or a Marine sent in to break up a rash of dancing like the parents from Footloose except with assault rifles — which, in fairness, the parents from Footloose probably would have in 2025. That the detention is for the process of future prosecution only strengthens the case that a reasonable person would see this as an arrest.
Because, you know, they’re holding someone, domestically, so they can face enforcement… for some sort of law that’s been violated. “Domestic law enforcement,” if you will. The thing that the military cannot do.
At some point, the government will analogize the troops to a retail security guard nabbing a shoplifter and claim that this is no more than a “citizen’s arrest,” which somehow magically takes this outside the definition of law enforcement. Something about being ziptied by guys in body armor carrying automatic weapons sent there explicitly by order of the government pushes this past what a reasonable person would consider a mere citizen’s arrest.
A CNN report added that the Marines will only be allowed to make these detentions if de-escalation is not working. Yeah, that doesn’t really change anything. A lot of arrests begin as an effort to de-escalate.
As of now, the Marines aren’t out there. They’ve got to finalize their rules governing the use of force, which likely will take more time under the circumstances given that domestic law enforcement is not one of the situations they ever prepared for since it’s patently illegal. But once they’re out there, it won’t be long until they “detain” someone.
Then we begin the countdown to a courtroom showdown over the scope of the executive’s power to sic the armed forces on civilians.
Just kidding. The Supreme Court already agreed that a president sending SEAL Team 6 to assassinate a political rival was legal. They’re not about to draw a line over where the target happened to be standing when the Navy pulled the trigger.
Troops in Los Angeles can detain but not arrest individuals, military official says [Reuters]
Marines in Los Angeles have power to detain people, says major general, as US cities brace for more protests – live [The Guardian]
What the Hell Is Posse Comitatus Anyway? [The Nation]
Earlier: Trump’s National Guard Stunt May Finally Give The Third Amendment Its Moment
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
The post An Arrest By Any Other Name Would Smell As Much A Violation Of The Posse Comitatus Act appeared first on Above the Law.
