Militias and police preparations for the upcoming election
Three legal principles everyone in law enforcement should know and understand
This article is reprinted with permission from PERF's Daily Critical Issues Report
By Police Executive Research Forum
Mary McCord is a visiting professor at the Georgetown University Law Center and the legal director at the Institute for Constitutional Advocacy and Protection (ICAP). Professor McCord was the Acting Assistant Attorney General for National Security from 2016-2017, Principal Deputy Assistant Attorney General for National Security from 2014-2016, and spent 20 years as an Assistant U.S. Attorney for the District of Columbia, including time as Chief of the Criminal Division.
Professor McCord recently wrote a New York Times op-ed about the danger of private militias in light of the recent plot to kidnap Michigan Governor Gretchen Whitmer. She recently spoke with the Police Executive Research Forum's Executive Director Chuck Wexler about how police can prepare to respond to incidents at polling locations.
Chuck Wexler: Tell me about the Institute for Constitutional Advocacy and Protection.
Prof. McCord: It’s basically a constitutional impact litigation shop. I started it with a couple of other former DOJ attorneys in 2017 after we left the government. We have nine attorneys and also use students in our work.
We litigate across a variety of areas. We do work on criminal justice reform, immigration, First Amendment rights, separation of powers and a whole litany of different issue areas.
We developed a niche expertise in anti-paramilitary activity law after the Charlottesville “Unite the Right” rally, where we saw what a challenging public safety environment was created there. You had these organized groups engaged in paramilitary activity, whether it was the type that looks like the National Guard in full military gear with AR-15s purporting to exercise law enforcement functions, or the far-right white supremacists using shields and pull-arms to offensively batter their ideological enemies.
It was such a display of organized force that we thought, “We need to do something about that.” That’s when we started looking at the anti-paramilitary laws on the books of all the states and what the Second Amendment really protects, which is not paramilitary activity. We brought a lawsuit on behalf of the city of Charlottesville and local business and resident associations, with the support of the police chief there, in order to get court-ordered relief to prevent a repeat of that organized, unlawful use of force and projection of the ability to use force by those who had no authorization under law.
Wexler: What concerns do you have related to the upcoming election?
Prof. McCord: At the Department of Justice, every four years we geared up to be prepared for the presidential election. But it was really more about being prepared to enforce election-related laws. We rarely even gave consideration to the potential for political violence around the polling places. We would certainly know about various voter suppression efforts and things like that, but this is the first year when it seems like there is really a risk of armed intimidation of voters around polling places. That’s largely because we’ve seen such incredible polarization of the country over the last few years, in combination with the increasing public presence of heavily armed unlawful militias, particularly those that are self-activating to usurp the functions of law enforcement.
We’ve seen that throughout the summer at racial justice protests, as these unlawful groups will often take it upon themselves to provide armed protection of property. But they have no authority to do it, and not only do they intimidate the exercise of free speech, but they also really heighten tensions and aggressiveness. We’ve seen the tragic results, such as the shootings in Kenosha, Wisconsin, Albuquerque, New Mexico and other places.
Wexler: What is the ideology of these militias?
Prof. McCord: Although the greatest majority of unlawful militias are right-wing militias and many of their members harbor white supremacist views, that is not the only ideology that motivates unlawful militias.
There are also leftist militias, and there are just straight-up anarchist militias, that don’t readily fall under the right-left political spectrum. All these pose a danger to public safety and a danger to law enforcement. They’re out there with heavy weaponry on the streets, potentially engaging with members of the public and members of law enforcement. It really undermines law enforcement’s ability to protect public safety to have these unregulated individuals usurping their authority and deciding for themselves under what circumstances to deploy lethal force.
The danger, in part, is that as you see more of this on one ideological side, it’s likely to lead to more of it on the other side of the ideological spectrum. I think that’s what we’re starting to see as new leftist militias form. Then it’s really dangerous because you’ve got a right-wing militia, a left-wing militia and the police in riot gear in the middle. That’s a recipe for potential danger and serious harm to public safety.
Wexler: What advice would you give police chiefs and sheriffs about handling these militias?
Prof. McCord: There are three legal principles everyone in law enforcement should know and understand:
- First, there is no legal authority under federal or state law for private groups of armed individuals to self-activate as a militia.
- Second, “well-regulated” means regulated by the state, and the Second Amendment does not prevent states from prohibiting paramilitary organizations, which the Supreme Court has made clear as far back as 1886.
- Third, all the states do in fact prohibit paramilitary organizations.
States prohibit them in a couple of different ways. Almost every state has a provision of its state constitution that makes it clear that military units in all cases must be strictly subordinate to the official governmental authority. In every state, it’s the governor who has the authority to call forth the militia. In modern times, the state militias are the National Guard. But in most state constitutions and statutory schemes, there’s also a provision that refers to the “unorganized militia” as all able-bodied residents between certain ages that are available to be called forth by the governor on behalf of the state or in defense of the state. But no state just allows them to call themselves forth. And when called forth by the governor, they then report up through the governor or the governor’s designee.
The other provisions that states have are criminal statutes. Twenty-nine states have a statute that dates to Reconstruction and prohibits bodies of men from associating together as military units or parading or drilling in public with firearms. That’s a statute that was upheld by the Supreme Court in 1886, when the Court said that states have to be able to prohibit these paramilitary organizations for public safety and good order. They reiterated that holding in 2008 in District of Columbia v. Heller, where they upheld an individual’s right to bear arms for individual self-defense, and contrasted that with paramilitary organizations, reiterating that states must have the ability to prohibit them.
Twenty-five states have statutes that criminalize training, instructing, demonstrating, or practicing in the use of firearms, incendiary devices and, in many states, techniques that are capable of causing bodily injury or death, knowing that those firearms, incendiary devices, or techniques will be used during or in furtherance of civil disorder. That’s where you can get at training camps, for example, where musters are going on to prepare for civil war or what we just saw in Michigan. It could also apply to actually practicing the use of firearms during civil disorder.
About 11 or 12 states prohibit by criminal statute falsely assuming the functions of a peace officer or law enforcement officer.
Some combination of these constitutional provisions and state criminal statutes exists in every state. No state makes it perfectly okay to just organize and deploy as a private militia engaging in the organized projection of the ability to use force or purporting to exercise any sort of authority over other people in public.
Wexler: How should police interact with militias that show up around polling places?
Prof. McCord: Every police official is going to have to decide what’s right for public safety in the moment. How big is the threat? Does this warrant making an arrest because it’s a violation of one of our criminal laws, or is it something where I should just engage with the people, find out what they’re doing, and ask them to move back?
But if we start with some first principles, particularly if we’re talking about being near a polling place, the heightened risk of voter intimidation is very, very great and the government has a significant interest in protecting against voter intimidation. That’s an interest that has been recognized by the Supreme Court.
So as long as police are being ideologically neutral and taking the same sorts of actions regardless of viewpoint, it would be perfectly consistent with First and Second Amendment rights to ask armed groups of individuals to move away from the area, potentially even put their guns back in their vehicles if they came by car, and explain to them that their presence could be intimidating to voters.
If they say, “I’m here exercising my Second Amendment rights,” the response could be, “You don’t have the right to be an organized militia group, and that’s what you appear to be.” If they’re just standing there and don’t appear to be trying to protect the line or purporting to protect against voter fraud, then I think I would ask them why they need their weapons here by the polls.
If they say they’re expressing First Amendment rights with their weapons, the courts don’t really support that the mere open display of a weapon is a First Amendment-protected type of expression, particularly in a situation where it’s likely to be intimidating. If you’re at a gun-rights rally and you’re saying, “My gun is part of my statement for gun rights,” then it might actually have some expressive quality. But if you’re around a polling place and there’s no gun measure on the ballot, the presence of guns can be very intimidating and doesn’t really create First Amendment-protected activity.
If they say, “We’re here to protect against voter fraud,” the police could say, “You don’t have any authority to protect against voter fraud. That’s the job of the election officials, police and the district attorney. That’s not the job of private organizations.”
Wexler: Are voter intimidation laws specific to each state, or is there a federal voter intimidation law?
Prof. McCord: Multiple federal statutes make it a crime to intimidate voters or attempt to do so. That would apply to intimidation, threats, or coercing or attempting to coerce a person in order to interfere with that person’s right to vote or to vote for the person of their choice. That’s the federal statute.
Every state also has some kind of voter interference or intimidation prohibition. It’s important for local law enforcement to talk with their district attorneys before Election Day to make sure they clearly know the voter intimidation statute in their jurisdiction.
Also, talk with election officials about how they would like law enforcement to be available should there be voter intimidation. Some voters might not want to report it to the police. They might prefer to report it to the election official or call the election protection helpline. The election officials and the people at the helpline would need to know which law enforcement officials to interact with if the intimidation continues.
Wexler: What resources does ICAP offer to help law enforcement officials?
Prof. McCord: We have fact sheets for every state, which provide the basic anti-paramilitary activity laws in that state. These are one-pagers, front and back, that police can carry with them during early voting and on Election Day to make sure they have the law about anti-paramilitary activity right at their fingertips.
Each fact sheet includes a checklist for someone who might see groups of armed individuals at the polls to make notes about what they’re wearing, what type of firearms they’re carrying, whether they are interacting with the voters, whether they’re blocking the voters’ way and whether they’re pretending to protect the polls. By noting those factual observations, the person reporting that activity will be able to describe in detail what they’ve seen, which we think will help law enforcement be better able to enforce the law.
We also have a voter intimidation fact sheet that talks about the federal laws and provides examples of voter intimidation.
We have a very lengthy legal treatise about what government can do to protect public safety without treading on First and Second Amendment rights during protest activity, demonstrations, or rallies. So if there are rallies taking place anywhere near a polling place or if there are rallies, marches, or protests after Election Day, this resource is there to help law enforcement, city attorneys, district attorneys and others know exactly what they can do.
If people would like more information, they can contact us by email at reachICAP@georgetown.edu.
ICAP has published several resources that may be useful to law enforcement agencies when preparing for the upcoming election: