Question of West Virginia Guard’s deployment to D.C. is focus in court again – WV MetroNews

A court hearing culminates Monday over whether Gov. Patrick Morrisey is operating within his authority to deploy the West Virginia National Guard to patrol Washington, D.C.

Kanawha Circuit Judge Richard Lindsay heard about two hours of testimony Nov. 3, but delayed making a final ruling until another hearing that he set for 2 p.m. this Monday. The judge already heard about an hour of testimony Oct. 24.

On August 11, President Donald Trump declared a “crime emergency” for the District of Columbia, and five days later Gov. Patrick Morrisey deployed members of the West Virginia National Guard for support.

The governor’s original announcement noted that the mission would be funded at the federal level. That’s a Title 32 order, typically for natural disasters, where the National Guard remains under the control of the state’s governor but receives pay and benefits from the federal government for federal missions.

The 300 to 400 members of the West Virginia National Guard who have been deployed to Washington, D.C., have been operating under Joint Task Force-DC, which says the mission will continue “until law and order is restored.”

The West Virginia National Guard deployment remains active and could be in effect through early next year. 

The court case in Kanawha County has challenged the governor’s power to deploy the West Virginia National Guard to the streets of America’s capital.

Similar questions have arisen recently in other courts. A circuit judge in Tennessee is considering the legal basis of Gov. Bill Lee deployment of the Tennessee National Guard as part of the Memphis Safe Task Force.

And a federal judge has been considering legal questions about the extent to which President Donald Trump can use the National Guard to execute his agenda in the District of Columbia. U.S. District Judge Jia M. Cobb said late last month that she would take time to consider the arguments before making a ruling.

In West Virginia law, one key provision outlines the authority of the governor to order the organized militia to active state service, including the ability to order the militia to serve outside the state for training, parades or other duties.

Another describes the governor’s powers to call out the West Virginia National Guard “into the active service of the state” in events like war, insurrection, riot, invasion or public disaster.

ACLU-West Virginia filed the lawsuit on behalf of West Virginia Citizen Action Group. Lawyers for the state Attorney General are defending the governor’s decision to deploy the Guard.

“The deployment of the West Virginia National Guard to Washington, D.C., is not a mere technical violation of arcane statutory provisions,” ACLU legal director Aubrey Sparks wrote in the latest filing. 

“The facially unlawful use of military power outside of our state borders, involving the compelled participation of citizen soldiers, is a direct and flagrant attack on the democratic systems that West Virginia citizens, courts, and elected officials have zealously protected for 162 years.”

Lawyers for the state, represented by the Attorney General’s Office, countered that layers of federal law, including the Constitution, give the president the power to request the National Guard and the governor the authority to grant it.

Those lawyers contend that the National Guard is on a support mission, rather than engaging in law enforcement duties.

“In fact, neither the D.C. National Guard nor out-of-District National Guard members are making arrests or engaging in direct law enforcement activity,” wrote Christopher Etheredge, chief deputy attorney general.

“Instead, the D.C. National Guard, augmented by the WV National Guard, are conducting deterrence operations with a focus on presence and visibility.”