California Asks Court to Consider Whether Troops Deployed Against Civilians Violates Posse Comitatus Act

Lawyers for the state of California asked federal District Court Judge Charles Breyer to consider whether Donald Trump’s deployment of National Guard and Marine troops in the state violates the Posse Comitatus Act, and how long the deployment can continue.

The 9th Circuit Court of Appeals already overturned Breyer’s ruling that Trump illegally federalized and deployed California National Guard in Los Angeles. However, at the time of his earlier ruling, Breyer explicitly declined to consider the Posse Comitatus Act, reasoning that troop deployment was too recent to establish whether or not troops engaged in activities proscribed by the Act. California said Court of Appeals recognized the state’s intention to continue pursuing that claim if grounds developed to do so.

Both Breyer’s ruling and the Court of Appeals ruling were based on the situation two weeks ago. The situation has developed further.

California’s brief included:

Although the Ninth Circuit held that, on the TRO record before it, conditions in and around the federal building in Los Angeles on June 6 and 7 likely satisfied Section 12406(3)’s factual predicate for federalization of National Guard units in the first place, the Ninth Circuit did not consider, nor did the parties present, the questions of how long such federalization is permissible in the face of changed circumstances or whether those federalized troops may be deployed in areas where those conditions never existed or have ceased to exist.

The state asked to be permitted to conduct “limited discovery.” This would include getting depositions from the acting Field Office Director for Immigration and Customs Enforcement in Los Angeles and an Army Major General.

The federal government’s stance was that the Court of Appeals ruling not only blocked Breyer’s earlier ruling, but meant Breyer cannot take up any of the questions in the case that were not addressed in his earlier ruling. The federal stance was also that there is no limit on how long the deployment can last, and that because Trump used a law that allowed use of troops when he is unable ‘with the regular forces to execute the laws of the United States,’ it is implicit that the deployed troops can engage in immigration enforcement despite the Posse Comitatus Act.

Breyer did not set a timeline for how long he will take to consider the competing briefs.

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