President Trump has deployed federal law enforcement officers and the National Guard in Los Angeles and Washington D.C. and threatened to take over predominantly Black Democratic cities by decree. The presidential orders are conducted on the pretext of fighting crime, but critics condemn them as nefarious acts of political provocation and racial intimidation.
The deployments have spurred a debate over the legality of the administration’s use of federal police and the National Guard generally — and the role of Black cops and troops in carrying them out in particular. Should they follow orders of questionable legality, or instead disobey and protest through the appropriate channels?
What follows is a cursory account of how Black police and militia have handled federal deployments to their communities in the past. This history may be of interest to those officers grappling with the implications of potential deployment to Black urban communities.
All federal police and soldiers swear an oath to uphold the Constitution and not blindly follow orders of superiors. The right of refusal to either deploy or follow an order considered illegal is protected under the Uniform Code of Military Justice, the Army Field Manual and federal laws and regulations.
According to legal experts, law enforcement officers and soldiers who have a reasonable understanding about the legality of an order have the right to refuse. That’s because the consequences of following an unlawful order, especially one that directs a criminal act, could make them subject to criminal and civil liability. They have a right to dissent and report the issue to appropriate channels, including directly or as protected whistleblowers. Such actions are risky but can help to create space for policy reforms and protect the rights of the public.
The extent to which young members of the military would prevail upon the regulations is open to question, however. A recent poll found that four of five soldiers understood the duty to disobey an illegal order, but such acts of defiance can be met with harsh punishment.
History does not suggest a widespread practice by Black soldiers or officers to refuse either deployment or a superior’s orders. However, it does record episodes of courageous dissent during times of racial tensions in the federal police and military — and in society — such as the Vietnam War and urban riots in the 1960s, and the protests over the murder of George Floyd in 2020.
In August 1968, for instance, Black soldiers in the Army’s First Armored Division stationed at Fort Hood, Texas refused to deploy to Chicago for riot-control duty. Only months after the assassination of Martin Luther King Jr., 60 soldiers engaged in a protest over orders to police Black neighborhoods during the Democratic National Convention. They engaged in a sit-in on the base, but 17 of the protesting soldiers were persuaded to board the plane for Chicago.
The other 43 soldiers were arrested for failing to report and became infamous as the “Fort Hood 43.” The refusal to deploy was one of the largest acts of Black dissent in modern military history. As a consequence, they were placed in the stockade, court-martialed and sentenced to six months of hard labor, a forfeiture of two-thirds of their wages, and reductions in rank. Within the Black community, however, the men were championed for their courageous act of dissent.
During the Vietnam War, Black soldiers and National Guard troops found creative ways to express their dissent with racial conditions in the armed forces and the deployments to police Black urban communities. For example, they wore fashions to emphasize pride and empowerment, created Black-themed flags, developed ritualized handshakes and formed support groups, among others, chronicled by Wallace Terry in the book “Bloods: Black Veterans of the Vietnam War.”
Meanwhile, federal law enforcement agents swear an oath to uphold the Constitution and are entrusted with power and expectations to act within the law. They are required to use their own judgment to decide when to refuse to obey unlawful orders. Black federal police have addressed questionable orders to police their community in various ways. Among these are working within the organization to advocate against practices like racial profiling, raise concerns over police accountability and promote more community-based solutions.
The National Organization of Black Law Enforcement Executives has criticized systemic racism in law enforcement, called for de-escalation training, the abolition of chokeholds and the quick intervention of officers to stop another from using excessive force. Such reforms are crucial for building trust between the police and community.
The Trump administration is pushing the envelope on using the federal police and National Guard in civilian law enforcement. One teetering guardrail is the post-Reconstruction Era law known as the Posse Comitatus Act. It restricts the military’s involvement in domestic law enforcement unless authorized by the Constitution or Congress.
(Of note, President Ulysses S. Grant used the Army in 1871 to suppress the racial violence of the Ku Klux Klan in South Carolina. After former Confederate politicians returned to Congress, the Posse Comitatus Act was passed in 1878 to hinder another president from using the Army to thwart the rise of Jim Crow.)
The Trump administration has found loopholes to protections from undue federal policing. One is by misapplying the Insurrection Act of 1807 to deploy soldiers without state authorization, as in Los Angeles. Another involves the oversight of the District of Columbia National Guard which, unlike all other states and territories, is always under presidential control. Trump has used the exception to take over D.C. policing with a thud.
Another method is known as “Title 32 status,” which allows a president to urge the governor of one state to deploy its National Guard to another state — even against the objections of that other state’s governor. Trump is approaching the Republican governors of other states to send their Guard personnel to Washington.
Black law enforcement must not abandon their obligations to the Constitution and the people. Now, more than ever, they should be courageous in finding ways to push back against presidential orders of questionable legality.
Roger House is professor emeritus of American Studies at Emerson College and the author of “Blue Smoke: The Recorded Journey of Big Bill Broonzy” and “South End Shout: Boston’s Forgotten Music Scene in the Jazz Age.” His forthcoming book is “Five Hundred Years of Black Self-Governance: A Call to Conscience.”
