CA4: Even if Posse Comitatus Act was violated in investigation, there is no judicial remedy

Defendant argued “the Defense Criminal Investigative Service (DCIS) violated the Posse Comitatus Act (PCA), 18 U.S.C. § 1385 (2012), by participating in the criminal investigation.” The motion wasn’t timely, and, on the merits, there is no remedy for violation. United States v. Dong, 2018 U.S. App. LEXIS 9742 (4th Cir. Apr. 18, 2018):

We further conclude that the court correctly determined that there is no remedy available for Dong. By its terms, the remedy for a violation of the PCA is not to dismiss the criminal charges against the offender or reverse his convictions but to hold the transgressor criminally liable. See United States v. Walden, 490 F.2d 372, 376 (4th Cir. 1974) (holding that PCA, “where it is applicable, renders the transgressor liable to criminal penalties but does not provide that the criminal is to go free because the constable has blundered” (internal quotation marks omitted)); cf. Johnson, 410 F.3d at 149 (explaining that, generally, exclusionary rule is not remedy for PCA violation). In Walden, however, we reserved the possibility of remedies for the offender “should repeated cases involving military enforcement of civilian laws demonstrate the need for the special sanction of a judicial deterrent.” Walden, 490 F.2d at 373; see also Dreyer, 804 F.3d at 1279-81 (same). Even if a violation of the PCA occurred, which is not at all clear from the record, this is not an extraordinary case that warrants a judicial deterrent.

That’s why the PCA is in the criminal code.

This entry was posted in Uncategorized. Bookmark the permalink.

Comments are closed.