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There is a showdown going on over the Bureau of Land Managements actions involving thier declaring 600k acres that have been used for grazing cattle by several farmers going back to the mid 1800's as Federal lands under the management of the BLM back in the late 1980's. Since then the courts have declared that the actions of the BLM proper. This drug on through the courts for years and when it was finally ordered that the BLM could remove the Farmers cattle from the land in the mid 1990's President Clinton, in an avalanche of criticism of the actions from farmers across the country, decided not to allow the BLM to proceed with the removal.

That is until recently when the BLM has made the decision to arrive in force with a relatively large contingent of armed forces in the employ and direction exclusively of US Federal Government Officials to enforce the order that they may confiscate and remove the cattle that prior to this action were the property of and being cared for by a US Citizen that has not been charged with a crime.

Is this a violation of the Posse Comitatus Act?

  • This action has not been requested nor authorized by the Governor of the State of Nevada.
  • I can find nothing that indicates that the President has declared that there is an insurrection or martial Law in the area as would be allowed pursuant to the Insurrection Act.
  • I am aware of no claim that there is the belief that Nuclear materials are endangered, or being threatened to be released, or used as/in a weapon.
  • This does not appear to be an operation under the jurisdiction of the Joint Special Operations Command
  • The Posse Comitatus Act prohibits the use of federal military forces to "execute the laws". While this armed force looks like a duck, is acting like a duck, sounds like a duck, it is claiming to be a goose. But I am pretty sure that the intent of the law is clear and the the armed force should be considered a Duck in this analogy.
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The Posse Comitatus Act applies to the military (the armed forces of the US) but not to federal agents bearing military equipment, hardware, and weaponry.

It limits the involvement of members of the Army, Air Force, Marines, and Navy, but not Coast Guard. It does not obstruct agents of the ATF, FBI, DEA, IRS, or other agencies from using military-style hardware in law enforcement functions. It also does not stop cities and counties from forming and equipping SWAT units that bear more firepower than the Army of the Potomac. From 18 USC ยง 1385:

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.

Separately, this was defined by the Department of Defense to include the Marines and Navy, but this may be merely policy rather than law.

Admittedly it's a thin difference to the targets in a standoff whether the tank driver is in the ATF or the Army, or whether that sniper is in the DEA or the Marines, but that's how the law is written. These are officially federal agents, not members of the Armed Forces, acting to enforce their interpretation of federal law and they will be to a large extent operating on federal land. Posse Comitatus will be relevant in the event they use actual Armed Forces assistance or equipment to achieve their law enforcement goals.

Of course, the people on the business end of the standoff would have little recourse fighting such collaboration anyway. It will be difficult to arrange meetings with lawyers to file for injunction under Posse Comitatus (assuming a court would entertain such).

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  • You forget highly trained agents that train alongside of the military. The act is not written as such that it actually allows for this distinction so far as I can tell. And the act specifically exempts the USCG but no other government agency. I think you need a reference to say it does not apply here. The act says armed forces, it does not say US Army or list any other branches either or agencies besides the USCG. – SoylentGray Apr 11 '14 at 20:58
  • How are you distinguishing Waco, Ruby Ridge, MT Freemen, etc. from the current situation? Those all involved federal law enforcement agency standoffs. Or are you saying those were all also illegal? I'm not quite clear. – NL7 Apr 11 '14 at 21:05
  • Waco did not start out to be the military operation and was authorized by Governor Bush. I have done my best to avoid the argument about RR here as it is over. I don't think the MT Freeman is the same thing. I am not saying the government was right or wrong on any of those with regards to this question just that the situations were different. – SoylentGray Apr 11 '14 at 21:23
  • Waco was first ATF and FBI. Also, the Governor would've been Ann Richards, not Bush; I don't believe that Gov. Richards would've been called by ATF to approve arrests, it would've just been a warrant. Ruby Ridge was Marshals, ATF, FBI and Montana Freemen was FBI. The current standoff, as I understand it, is BLM and FBI. Either it is legal for federal law enforcement agencies to engage in standoffs with military hardware, or it is not legal. Posse Comitatus does not apply to FBI, DEA, ATF, or BLM. – NL7 Apr 11 '14 at 21:31
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    Yes, it does. I agree that the rule is not a very good one. But there's no Posse Comitatus limit on federal agencies using military training, equipment or tactics. The real problem is that these agencies exist at all - banning drugs, taxing cigarettes, measuring the barrel length of shotguns, renting out grazing land - none of these are things that ought to require the intervention of the government. Since the underlying activities don't need to be government activities, it's harder to accept violent means to achieve them. – NL7 Apr 11 '14 at 22:08

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