On The Left

 In civil law, even the briefest detention can be false imprisonment. And if I remember criminal law correctly (I may not; been about 40 years), simply moving someone against their will without authority is kidnapping.

Reuters images showed Marines apprehending a civilian, restraining his hands with zip ties and then handing him over to civilians from the Department of Homeland Security.

Asked about the incident, the U.S. military's Northern Command spokesperson said active duty forces "may temporarily detain an individual in specifi if c circumstances."

"Any temporary detention ends immediately when the individual(s) can be safely transferred to the custody of appropriate civilian law enforcement personnel," a spokesperson said.

The 200 Marines and more than 2,000 National Guard now deployed to Los Angeles are tasked with protecting federal property and federal personnel. They will be joined by an additional 500 Marines and 2,000 more National Guard soldiers.

This means that they will accompany ICE agents on raids, officials have said.

The troops are authorized to detain people who pose a threat to federal personnel or property, but only until police can arrest them. Military officials are not allowed to carry out arrests themselves.

The Posse Comitatus Act generally forbids the U.S. military, including the National Guard, from taking part in civilian law enforcement.

That is the reported position of the DOD. But I don’t know of a “time limit for detention” exception to the Posse Comitatus Act. Judge Beyer doesn’t seem to know about one, either.

On the left:

June 12, Judge Breyer writing that THE test for whether the US Marines/Guard violate Posse Comitatus will be whether they've engaged in "detaining" civilians.

On the right:

June 13: See for yourself.

Note: The DoD has confirmed the detention of civilian to Reuters.

Nothing in there to suggest “detention” means “just long enough to find a law enforcement officer.” If I detain someone until I can find a cop, I could well be liable for false imprisonment. What privilege does a Marine have in that situation that I don’t have? Especially when the Insurrection Act hasn’t been invoked?

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 Posse Comitatus Act is short, but that doesn’t mean it’s either simple or clear. I wouldn’t be surprised if, for example, the Roberts Court finds Constitutional authorization in the same place they found Presidential immunity. Barring that, though, it seems pretty clear the DOD can’t plead “temporary detention is not really detention is not really law enforcement” when an armed Marine in uniform is clearly acting at least under color of law. I mean, are you gonna tell him to piss off?

This will pretty clearly lead Beyer to issue a new TI. Which will also be appealed, and probably folded into the pending appeal. The fun part will be if it’s appealed to the Supremes and Roberts decides Trump has enough immunity already. That would make it a nationally applicable decision, de facto if not de jure.

Which may make Trump’s DOJ want to stop with the 9th Circuit. If Trump will let them.

I know this is moving too slowly. The mills of God and all. But short of 5 Justices ruling as I suggested above (which would lead to major reforms to the Court starting in 2029), I don’t see this ending well for Trump in the end.

Hey, we elected the guy. We can’t stop him cold. We can only hope for justice, in the meantime as much sand in his gears as possible.