## Facts

- Defendants were indicted under 18 U.S.C. § 231(a)(3) for allegedly obstructing or interfering with law enforcement officers during a 1973 civil disorder at Wounded Knee, South Dakota.
- The government filed a pretrial motion in limine to exclude defense statements or evidence concerning (1) the loan or sale of military equipment to the Department of Justice, (2) the presence of Department of Defense observers, and (3) any other Department of Defense involvement at Wounded Knee.
- The evidentiary dispute turned on a statutory element requiring proof that law enforcement officers were “lawfully engaged in the lawful performance of [their] official duties.”
- Defendants sought to show that military involvement rendered law enforcement activity unlawful under the Posse Comitatus Act, 18 U.S.C. § 1385.
- The court addressed whether the Posse Comitatus Act’s prohibition on using the Army or Air Force “as a posse comitatus or otherwise” reached indirect military support (equipment, observers, logistical assistance) or only direct troop participation in law enforcement.

## Issues

1. In a prosecution under 18 U.S.C. § 231(a)(3), is evidence of Department of Defense involvement at Wounded Knee relevant to whether officers were “lawfully engaged in the lawful performance of [their] official duties”?
2. Under 18 U.S.C. § 1385, what constitutes prohibited “use” of the Army or Air Force: only direct, active participation by military personnel, or also provision of equipment, observers, or other indirect support?

## Decision

- The court granted the motion in limine in part and denied it in part.
- Evidence of direct, active participation by military personnel in civilian law enforcement functions (e.g., arrests, searches, seizures, or similar enforcement activity) was potentially relevant to the “lawfully engaged” element and could be admissible.
- Evidence limited to the loan or sale of military equipment, the presence of Department of Defense observers, or other indirect/passive support was held irrelevant to the “lawfully engaged” element and was excluded.

## Legal Principles

- For 18 U.S.C. § 231(a)(3), the government must prove, among other elements, that officers were “lawfully engaged in the lawful performance of their official duties” during the civil disorder.
- The Posse Comitatus Act, 18 U.S.C. § 1385, prohibits the direct, active use of Army or Air Force personnel to execute civilian law, absent constitutional or statutory authorization.
- “Use” under § 1385 refers to direct, active employment of military personnel, not the provision or use of military equipment or materiel.
- In a § 231(a)(3) case, defendants may contest the “lawfully engaged” element with evidence tending to show direct troop involvement in law enforcement, but not with evidence of indirect military support that does not amount to troop execution of the laws.

## Conclusion

The court drew an evidentiary line between direct troop participation and indirect military assistance: only evidence suggesting that military personnel directly carried out civilian law enforcement activity could support a Posse Comitatus-based challenge to whether officers were lawfully performing official duties under 18 U.S.C. § 231(a)(3), while evidence of equipment, observers, or logistical support alone was excluded as irrelevant.


United States v. Red Feather, 392 F. Supp. 916 (D.S.D. 1975)