Why I did away with the Posse Comitatus law in California

With a half dozen laws on the books compelling people to help the cops, why keep the one that is based in lynching, slaves, and the Wild West?

Last year, I asked interns in my Van Nuys office to scour each section of California code and identify laws that seemed outdated. They found rules governing women’s use of sunglasses while driving and regulating the ability to enter a steamship, but one that stood out the most to us was the Posse Comitatus law.

This law makes it a misdemeanor for any able-bodied person over the age of 18 to neglect or refuse to join a posse called by a peace officer. The posse comitatus was adopted by local jurisdictions in America’s earliest days; officials invoked posse comitatus in the Fugitive Slave Act of 1850, which said that civilians could be recruited to capture people who were trying to escape from slavery. In a more sinister example, many posses that formed became lynch mobs rather than legitimate law enforcement assistance.

On a more local level, posse comitatus was a way for sheriffs to keep the peace in places where law enforcement had less structure and resources, as was often the case on the Western frontiers of the United States during the 1800s.

With the abolition of slavery and the professionalization of law enforcement, the practice has been largely abandoned. After months of research and inquiries, my office failed to find any specific instance in recent history of a sheriff calling on a posse in California.

So we decided to repeal the posse comitatus.

SB 192, which was signed by the Governor on August 30, 2019, repeals California Penal Code Section 150, thereby abolishing the crime of willful or negligent failure to join a posse.

Police can still ask the public for assistance.

California’s ‘Good Samaritan Law’ is codified in our Health and Safety Code, and nearly half a dozen other laws authorize sheriffs and other officers to ask for help in an emergency, or to arrest a suspect.

The difference is that now, it will not be a crime for a person to say no if they don’t feel comfortable or safe doing so.

California was only one of 11 states with such a crime still on the books.

In a year that the Pew Research Center reported a majority of adults say they are frustrated with government, we should take a hard look at unneeded laws. This statute is a vestige of a bygone era, and subjects people to a moral dilemma: join and put your life at risk, or refuse and break the law.

I commend the Governor for signing SB 192. In doing so, he rightfully took Posse Comitatus out of the law books and put it into the history books.