“Pursuant to your order of the 29^th, I left Frankfort that night and proceeded to Pike County [Kentucky] to investigate the border warfare between the Hatfields, of Logan County, of West Virginia, and the McCoys, of Pike County.” ~ The opening sentence of the detailed 1888 report on the Hatfield-McCoy feud made to Governor S.B. Buckner by Kentucky Adjutant General Samuel E. Hill. (Newspapers around the country awaited the report from the Adjutant General to find out “what in the Sam Hill was going on up there.”)

For many persons, the term “posse” may give rise to an image of a Western sheriff calling a group of local citizens into action in order to chase an outlaw.

What is little known, however, is that Tennessee still has an 1858 law on the books that allows modern sheriffs to form a posse, if and when needed.

Two recent events have inspired this week’s column on the Tennessee posse law.

First, on Memorial Day weekend, HISTORY®, more commonly known as the History Channel, broadcast its three-part series, “Hatfields & McCoys™.” This series, based on actual facts, portrayed the post-Civil-War feud between two families in the Appalachian region along the border between West Virginia and Kentucky.

At one point, a “posse” formed in Kentucky by McCoy family members crossed the Tug Fork River into West Virginia and brought nine Hatfield family members and sympathizers back to Pike County, Kentucky, to be tried for crimes committed in Kentucky. The governor of West Virginia filed a federal lawsuit to force the Governor of Kentucky to release the nine and allow their return to West Virginia. In 1888 the U.S. Supreme Court ruled that the nine citizens of West Virginia, who had been captured by the posse and brought to Kentucky, could be jailed in Kentucky and tried for crimes allegedly committed in Pike County.

Second, reporter Beth Burger of the Chattanooga Times Free Press recently wrote an article about how Hamilton County Sheriff Jim Hammond has formed a 71-member citizen posse. Sheriff Hammond has issued posse ID cards that allow full-arrest powers to local citizens, but only if the sheriff calls them into action under the Tennessee posse law.

Q. What exactly does Tennessee’s posse law say?

In 1858, the Tennessee Legislature passed a law that allows any county sheriff to summon residents of the county to provide aid in keeping the peace and fighting crime.

Specifically, the posse law, now published in the Tennessee Code Annotated at section 8-8-213, reads as follows:

8-8-213.  Conservator of peace -- Summoning posse. 
(a) The sheriff and the sheriff's deputies are conservators of the peace, and it is the sheriff's duty to suppress all affrays, riots, routs, unlawful assemblies, insurrections, or other breaches of the peace, detect and prevent crime, arrest any person lawfully, execute process of law and patrol the roads of the county.
(b) The sheriff shall furnish the necessary deputies to carry out the duties set forth in subsection (a), and, if necessary, may summon to the sheriff's aid as many of the inhabitants of the county as the sheriff thinks proper.

Q.  Where does the term “posse” come from?

The word “posse” is a shortened version of the phrase “posse comitatus,” a Latin phrase that is often translated as “force (or power) of the county.”

Many of the laws of Tennessee have origins in the body of traditional law known as the English common law. By such ancient English law, all males over the age of 15 were required to serve if called on by the sheriff for assistance in preventing or dealing with any type of civil disorder. 

Legal requirements and trends in modern law enforcement, however, make it unlikely that Tennessee sheriffs will summon, or activate, a citizen posse from “the inhabitants of the county.” In Tennessee and elsewhere across the nation, sheriffs and police chiefs rely on commissioned law enforcement officers, who are required to meet strong certification standards and must attend 40 hours or more of annual training.

Cultural Trivia Note: The fictional character Leonard “Bones” McCoy from the television and film series “Star Trek” is supposedly a descendant, dozens of generations removed, of the McCoy family of Pike County, Kentucky.

James B. (Jim) Hawkins is a general practice and public interest law attorney based in Gallatin. This column represents legal information, and is not intended to take the place of legal advice.  All cases are different and need individual attention. Consult with a private attorney of your choice to review the facts and law specific to your case. Column topic requests may be submitted to Jim Hawkins at 452-9200.