What can the National Guard do if deployed to Chicago?

CHICAGO — Following weeks of speculation over whether President Donald Trump will send troops to Chicago, questions remain over the authority the National Guard would have if deployed to the city.

National Guardsmen serve simultaneously in their state’s National Guard, as well as in either the Army National Guard of the United States or the Air National Guard, which are reserve components of their respective services.

When activated, National Guardsmen serve in one of three duty statuses: State Active Duty (SAD), Title 10 status, and Title 32 status.

The deployment duty statuses determine the Guard’s command, funding, location of service and benefits. They can also greatly impact the role that Guardsmen play in the area where they’re deployed.

When federally deployed, National Guard members are subject to the Posse Comitatus Act, which prohibits the use of federal military personnel to enforce domestic law and bars Guardsmen from participating in domestic civilian law enforcement activity without congressional approval.

Even though some guardsmen can participate in law enforcement activity, the National Guard often operates in support of local law enforcement, not in replacement of it.

Title 10 – Federal Control

Title 10 of the United States Code determines the legal framework for the function, duties and responsibilities of the Armed Forces.

The duty of a Guardsman activated under Title 10 U.S.C. is controlled and funded federally, meaning they operate as part of the U.S. Armed Forces.

Given that Title 10 Guardsmen are under federal control, when activated they usually perform federal missions, including overseas deployments or support of national defense.

Guardsmen activated under Title 10 can only be deployed domestically with congressional or constitutional authorization.

When federally deployed, National Guard members are subject to the Posse Comitatus Act, which prohibits the use of federal military personnel to enforce domestic law and bars them from participating in domestic civilian law enforcement activity without congressional approval.

There are some exceptions to the Posse Comitatus Act, like the Insurrection Act, that allow federal troops to conduct law enforcement activities under specific circumstances.

Could a Title 10 National Guardsman arrest you?

In short, no, a Title 10 Guardsman cannot arrest people, but they could detain them in some rare cases, such as preventing interference with military duties or federal operations.

The authority of a Guardsman and their ability to participate in law enforcement activities are entirely dependent on their duty status.

While Title 10 Guardsmen can support local law enforcement with things like logistics, transportation and intelligence, because of the Posse Comitatus Act, they are prohibited from participating in domestic civilian law enforcement activity without congressional approval.

Title 10 Guardsmen are often called in to prevent harm or interference with federal officials, and they could detain individuals in support of that duty and hand them over to local law enforcement.

Title 10 Guardsmen are not authorized to conduct arrests or detain people as part of law enforcement.

Title 32: State Control, Federal Funding

Title 32 of the United States Code determines the role of the National Guard, its federal status and authority.

Guardsmen activated under Title 32 have been called upon by their state’s governor, who must first receive federal mobilization authorization.

While Guardsmen mobilized under Title 32 orders are under the command and control of their state’s governor, their duty is funded and regulated federally.

Title 32 activation allows a state’s governor to mobilize Guardsmen for operational homeland defense activities, which could include disaster response, defense of cities or infrastructure, or responding to major security threats.

Because Title 32 units are not considered fully federalized troops, they are not subject to the Posse Comitatus Act and can participate in law enforcement support activities, as long as they remain under state control.

Since Title 32 Guardsmen remain under state control, if called to perform law enforcement duties they can only enforce the laws of the state where they were called to serve.

Could a Title 32 National Guardsman arrest you?

In short, yes, a Title 32 Guardsman can detain or arrest people in some cases.

Because Title 32 units are not fully federalized, they are not subject to the Posse Comitatus Act and can participate in law enforcement support activities.

Guardsmen activated under Title 32 can arrest and detain an individual as long as their actions are authorized under state law and they are acting under the authority of their state’s governor.

Not all Guardsmen maintain the authority to detain or arrest people, and those who do are often assigned and trained for law enforcement support duties.

State Active Duty (SAD) – Fully State-Run

When in State Active Duty, National Guard members are under the control of the governor of the state they serve, and their activities are funded by the state.

National Guard members are by default under state control.

Usually, SAD Guardsmen are called upon in response to natural disasters or homeland defense missions.

State Active Duty is built upon state statute and policy, and it is funded by the state. When in SAD, Guardsmen remain under the command and control of the governor of the state they serve.

Because SAD Guardsmen are entirely controlled by the state, the Posse Comitatus Act does not apply, and the state’s governor can employ members to aid with law enforcement as needed.

Could a State Active Duty National Guardsman arrest you?

In short, yes, a State Active Duty Guardsman can detain or arrest people under certain circumstances, but only with explicit state authorization.

State Active Duty Guardsmen can detain or arrest people interfering with their duties, as long as they are acting under the authority of the governor. But that does not give SAD Guardsmen the authority of a police officer outright. Those who possess the authority to make arrests must be authorized through specific mission directives and legal statutes.

Because State Active Duty units are under the control of their state’s governor, they are not subject to the Posse Comitatus Act.