Petition for a Writ of Certiorari — Gilligan v. Morgan

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1971

No.

JOHN J. GILLIGAN

Governor of Ohio

DANA L. STEWART

: Adjutant General of Ohio

ROBERT H. CANTERBURY

~, Assistant Adjutant General,

7 Petitioners

ae ass

CRAIG MORGAN

THOM DICKERSON

WILLIAM SLOCUM

Respondents.

ee

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

John J. Gilligan, Governor of Ohio, Dana L. Stewart, Ad-

jutant General of Ohio and Robert H. Canterbury, Assistant

Adjutant General, respectfully pray that a writ of certiorari

issue to review that portion of the judgment and opinion of the

United States Court of Appeals for the Sixth Circuit entered in

this gree on February 15, 1972, which remands the cause

to the District Court to determine whether injunctive relief

should be granted to control the training, weaponry and orders

of the Ohio National Guard.

2

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,

appears in the appendix hereto. No opinion was rendered by the

District Court for the Northern District of Ohio, Eastern Divi-

sion.

JURISDICTION

The judgment of the Court of Appeals for the Sixth Circuit

was entered on February 15, 1972. This petition for certiorari

was filed within ninety days of that date. This Court’s jurisdic-

tion is invoked under 28 U.S.C. 1254 (1).

The basis for jurisdiction in the first instance was 28 U.S.C.

1343 (3).

QUESTIONS PRESENTED

1): Whether the issue of the proper training, weaponry and

orders of members of an organized National Guard is nonjust-

iciable as a political question.

2) Whether injunctive relief controlling the training, weap-

onry and orders of the NatiSnal Guard would violate the long-

standing policy against interferénce by a federal court with the

legitimate activities of a state.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution

Article 1, Section 8, Clause 16:

The Congress shall have Power . . . To provide for organi-

zing, arming and disciplining, the Militia, and for governing

such Part of them as may be employed in the service of the

United States, reserving to the States respéctively, the

Appointment of the Officers, and the Authority of train-

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ing the Militia according to the discipline prescribed by

‘Congress.

United States Code, Title 32:

§501. Training generally

(a) The discipline, including training, of the Army Na-

tional Guard shall conform to that of the Army. The

discipline, including training, of the Air National Guard

shall conform to that of the Air Force.

(b) The training of the National Guard shall be conducted

by the several States and Territories, Puerto Rico, the

Canal Zone, and the District of Columbia in conformity

with this title.

§ 701. Uniforms, arms, and equipment to be same as

Army or Air Force.

So far as practicable, the same types of uniforms, arms,

and equipment as are issued to the Army shall be issued to

the Army National Guard, and the same types of uniforms,

arms, and equipment as are issued to the Air Force shall be

issued to the Air National Guard.

STATEMENT OF THE CASE

During the first four days in May of 1970 disorders took

place on and off the campus of Kent State University in Kent,

Ohio. On the evening of May 2, 1970, the then Governor of Ohio

in response to a request from the Mayor of Kent, Ohio, dis-

patched units of the Ohio National Guard to duty in Kent to

assist the local authorities there in controlling the disorders.

Respondents herein who were then students at Kent State

University brought suit in Federal District Court against the

Governor, the Adjutant General, and the Assistant Adjutant

General of Ohio. They alleged that during the period that they

were on duty in Kent, Ohio, members of the National Guard

had violated students’ rights to speech and assembly; beat and

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injured students ‘‘needlessly”; and killed and injured a number

of students without legal justification. They sought an injunc-

tion against the Governor to restrain him from “prematurely”

ordering National Guard troops to duty; an injunction to re-

strain leaders of the National Guard from violating the students’

constitutional rights in the future; and a declaration that Sec-

tion 2923.55 of the Ohio Revised Code is unconstitutional. This

Section provides that under certain detailed circumstances, law

enforcement personnel who are engaged in suppressing a riot are

“guiltless” for the consequences of the use of such force as is

necessary and proper under the circumstances.

The District Court held that the complaint failed to state a

claim upon which relief could be granted and dismissed the

complaint.

The Court of Appeals affirmed the judgment of the District

Court with respect to injunctive relief against the Governor. It

also upheld the validity of Section 2923.55 supra. However, the

Court with one judge dissenting, found that the complaint did

state a cause of action with respect to the following issue:

Was there and is there a pattern of training, weaponry and

orders in the Ohio National Guard which singly or together

require or make inevitable the use of fatal force in suppres-

‘ng civilian disorders when the total circumstances at the

critical time are such that nonlethal force would suffice to

restore order and the use of lethal force is not reasonably

necessary? (App. 18)

The Court remanded the cause to the District Court for

further proceedings.

REASONS FOR GRANTING THE WRIT

The Decision Below is in Conflict

with the Applicable Decisions of

this Court with Respect to

Political Questions

The applicable decisions of this Court show that the issue of

the proper training, weaponry and orders of members of the

Ohio National Guard is a nonjusticiable political question. The

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majority opinion of the Court below did not discuss this doc-

trine. It merely stated that its “diminished vitality” is illustrated

by cases irechies voting rights and prisoners’ rights (App 19).

Baker v. Carr, 369 U.S. 186 (1962) cited by the majority as

one of the voting rights cases did hold that the voting rights

asserted therein did not constitute a political question. How-

ever, it did not hold that the political question doctrine was no

longer viable. The opinion in that case thoroughly discussed the

doctrine and set forth the factors which would render it applic-

able.

Prominent on the surface of any case held to involve a

political question is found a textually demonstrable consti-

tutional "political department; or a lack of judicially discov-

erable = : ble mame of mins it; ys the

impossi ° without an ini ic ter-

wi ofa kind Seat for nonjudicial bore ; or the

impossibility of a court’s undertaking independent resolu-

tion without expressing lack of the respect due coordinate

branches of government; or an unusual need for unques-

tioning adherence to a political decision already made; or

the potentiality of embarrassment from multifarious pro-

nouncements various departments on one question.

(369 U.S. at 217)

Each of the above factors is present in the instant case. There is

a “textually demonstrable constitutional commitment of the

issueto a coordinate political department”. Article I, Section 8,

Clause 16, of the Constitution gives Congress the authority to

prescribe the proper training, weaponry and discipline for the

militia:

The Congress shall have Power . . . To provide for organ-

izing, arming, and disciplining, the Militia, and for govern-

ing such Part of them as py A employed in the service of

the United States, reserving to the States respectively, the

Appointment of the Officers, and the Authority of train-

ing the Militia according to the discipline prescribed by

Congress.

6

Pursuant to its constitutional authority, Congress has enacted

legislation governing the training and weapons of the National

Guard. Congress has provided that the training of the Army

National Guard shall conform to the training of the Army. 32

U.S.C. 501. See also: 32 U.S.C. 502-507. It has also provided

that the same types of arms and equipment shall be issued to

the National Guard as are issued to the Army, 32 U.S.C. 701. In

addition, Congress has authorized the President to prescribe

regulations governing the National Guard.

The President shall prescribe regulations, and issue orders,

necessary to organize, discipline, and govern the National

Guard. 32 U.S. C. 110.

There is a lack of judicially discoverable and manageable

standards for resolving thesissue. Courts are particularly ill

suited for determining a proper system of training, weaponry or

orders for a military organization such as the National Guard.

The majority opinion below in an attempt to show manageable

standards cites materials of the Federal Bureau of Investigation,

the Department of the Army and the Police Department of New

York City (App. 20). If a court were to require that the Ohio

National Guard replace its present system of training and equip-

ping its members with the system used by the F.B.I., the Army

or the New York Police Department, it would have to make two

fundamental assumptions. Petitioners contend that it is not a

proper judicial function to make either assumption. The court

would first have to find or assume in the absence of any dispute

or controversy that these other systems are valid. The court

would also have to find or assume that these other systems

would enable the Ohio National Guard to properly perform its

responsibilities and carry out its functions. These systems were

evolved through experience and experimentation. They are

adapted to guide these organizations in situations in which they

are likely to be involved. The situations in which the F.B.I. or

the New York Police Department may be involved may differ

significantly from those in which the Ohio National Guard may

be involved. What may be proper training and weapons in one

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situation may be inadequate in another.

A judicial determination of this issue would necessarily be

inflexible. It could not take into consideration new develop-

ments and theories in the area. There ate almost continuous

advancements in the equipment and weapons available to the

military. There are also new theories on the proper method of

training troops. Courts are not equipped to provide the empiri-

cal research nor the continuing supervision and revision neces-

sary for intelligent military planning. Cf. McInnis v. Shapiro.

293 F. Supp. 327 (N.D. Ill. E. D. 1968) affd. sub nom. McInnis

v. Ogilvie, 394 U. S. 322 (1969).

If the court were to require the standards prescribed for the

F.B.I. or the New York Police Department for members of the

Ohio National Guard, it would clearly indicate a lack of respect

for the legislative and executive branches of the government. It

could also result in multifarious pronouncements by different

branches on this issue. Congress has the responsibility under the

Constitution to train and provide weapons and equipment for

members of the National Guard. The President also has the

responsibility by statute to prescribe regulations governing these

matters. Any judicial determination as to the training or equip-

ment of members of the National Guard would necessarily

indicate a lack of confidence in the legislative and executive

branches to carry out their responsibilities. If a court were to

grant the requested relief, there is also a very real possibility of

conflicting directions from the different branches of the govern-

ment. Congress has enacted statutes pursuant to its constitu-

tional authority and may enact new statutes or amend existing

ones in the future. The President has also prescribed regulations

on this subject.-He is likely to issue new ones in the future.

This power to prescribe and enforce regulations for the

training and weaponry of the National Guard, which Con-

gress has delegated in part to the President, is more than a

mere token and unexercised authority. In July of 1967,

when civil disorders had come to the forefront of national

concern, President Johnson announced that he had order-

ed the ‘addition of special training courses to the existing

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National Guard training program. Weekly Compilation of

Presidential Documents, Vol. 3, No. 30, at 1056 (1967).

Moreover, under the authority delegated to the President,

the Department of the Army has specifically set manda-

tory riot-control training requirements for all Army Na-

tional Guard and certain Air National Guard units. See

Report of the National Advisory Commission on Civil

Disorders, supra, at 505 (1968). (Celebreeze, J. Dissenting

Cre (App. 30).

Any relief which the district court grants would involve

several if not all of the formulations identified by this Court as

characteristic of a nonjusticiable political question. Baker v.

Carr, supra, 369 U.S.) 186; Chicago & Southern Air Lines v.

Waterman S. S. Corp, 333 U.S. 103 (1948). See also: Pauling

v. McNamara, 321 F 2d 796, 798 (D. C. Cir. 1964), Beck v.

Laird, 429 F 2d 302, 305 (2d Cir. 1970).

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The Decision Below Is Contrary

To The Applicable Decisions Of

This Court In The Area Of The

Relationship Between The State

And Federal Government

The decisions of this Court which involve the possibility of a

conflict between the powers of the state and federal govern-

ment establish that a federal court should be sensitive to the

legitimate interests of the state. In protecting federal rights a

court should also endeavor to avoid undue interference with the

legitimate activities of the state. See e.g.,Union Brokerage Co. v.

Jensen, 322 U.S. 202, 207-208 (1944). This policy was reaf-

firmed and explained in Younger v. Harris, 401 U.S. 37 (1971).

This policy, referred to as “Our Federalism” recognizes that our

country is composed of a union of separate states and reaffirms

the belief that the national government will fare best if the

individual states are left free to perform their separate functions

in their separate ways. “Our Federalism” occupies an important

place in our country’s history. It played a significant part in the

adoption of the Federal Constitution. The framers of our Con-

stitution rejected both the idea of blind adherence to so-called

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“states’ rights” and the idea of central control over every

important issue by the federal government and its courts. In-

stead they adopted the concept of “Our Federalism”, in which

there is sensitivity to the legitimate interests of both the state

and the federal government. The federal government under this

system attempts to carry out its responsibilities in a manner

which will not unduly interfere with the legitimate activities of

the state (401 U.S. at 44).

This Court has also shown sensitivity to the interests of the

individual states in other recent decisions.. Askew v. Hargrave,

401 U.S. 179 (1971) held that a federal court should abstain

from considering the validity under the Equal Protection Clause

of a state statute until the state court had an opportunity to

construe it. Other decisions where this Court has shown defer-

ence to the judgment and interests of the state include Gordon

v. Lance, 403 U.S. 1 (1971); James v. Valtierra, 402 U.S. 137

(1971); and Dandridge v. Williams, 397 U.S. 471 (1970).

Nothing could be more damaging to the interests of the State

of Ohio than the decision of the court below. If on remand the

court were to enjoin the existing system of training and weap-

onry of the Ohio National Guard and prescribe its own system

* it would restrict the discretion of the National Guard officials in

dealing with future disorders.. The power to prevent and sup-

press civil disorders is the most fundamental of powers. It is a

prerequisite to the continued existence of the state and neces-

sary to protect the safety and well-being of its inhabitants.

Petitioners do not contend that the conduct of the National

Guard is not subject to judicial review. Neither do they contend

that a court may not properly enjoin conduct which is unlawful

on its face. This is not involved in the instant case. The J<ality

or validity of the conduct challenged here depends upon the

conditions which prevailed at the time of the disorders. Any

injunctive relief granted herein will restrict the discretion of the

National Guard leaders in responding to a given civil disorder

(App. 32).° This discretion by definition must be exercised

under emergency conditions. Anything which hinders or re-

stricts this discretion could cause irreparable injury to the

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public health, safety and welfare.

The judgment below is contrary to the policy established by

the decisions of this Court of not unduly interfering with the

legitimate interests of the state. This justifies the grant of

certiorari.

CONCLUSION

For the above reasons, a writ of certiorari should issue to

review that portion of the judgment and opinion of the Sixth

Circuit which remanded the cause to the district court.

WILLIAM J. BROWN

Attorney General of Ohio

THOMAS V. MARTIN

Executive Assistant to the

Attorney General

Counsel for Petitioners

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APPENDIX

No. 71-1335

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Craig Morgan, Thom Dickerson and]

William Slocum, Suing individually} Appeal from the

and on behalf of all others similarly | United States District

situated, Court for the Northern

Plaintiffs-Appellants,* District of Ohio,

v. Eastern Division.

James Rhodes, Sylvester Del Corso

and Robert Canterbury,

Defendants-Appellees. |

Decided and Filed February 15, 1972.

Before: Edwards, Celebrezze and McCree, Circuit Judges.

Edwards, Circuit Judge. In this case certain students at Kent

State University, including officers of the Student Association,

and other student organizations, seek broad injunctive relief

against the Governor of Ohio and the commanding officers of

the Ohio National Guard, and a declaratory judgment, declaring

unconstitutional a certain immunity statute, Ohio Rev. Code

$2923.55 (Supp. 1969). The complaint was brought under 42

U.S.C. § 1983 (1970), with jurisdiction asserted under 28 U.S.C.

§ 1343(3) (1970).

The District Judge dismissed the complaint on motion with-

out either answer or affidavits being filed by appellees, and

without hearing. His brief order stated that the pleading failed

to state a claim cognizable under federal law.

The disposition employed by the District Judge is, of course,

the least favored judgment which the appellate courts review.

Here the issues (assuming for the moment some triable issues

were stated) have never become joined. Appellees have never

even filed either answer or motion for summary judgment

supported by affidavits.

12

When a case comes to us in such a posture, we are

compelled to assume the truth of all of the plaintiffs’ allegations

of fact, plus the reasonable inferences which flow from those

facts.

This court has recently restated these principles:

“This cause having come before this Court on a dismissal,

the allegations of the complaint must be taken as true, and

any legitimate inferences arising therefrom must be con-

strued in favor of the Appellants. See Jenkins v.

McKeithen, 395 U.S. 411, 423-424, 89 S.Ct. 1843, 23

L.Ed.2d 404° (1969); Glus v. Brooklyn Eastern District

Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770

(1959); Taylor v. Kentucky State Bar Association, 424

F.2d 478, 480 (6th Cir. 1970).” Honey v. Goodman, 432

F.2d 333,336 (6th Cir. 1970).

This fundamental statement of the same principles is found

in a unanimous United States Supreme Court decision:

“In appraising the sufficiency of the complaint we follow,

of course, the accepted rule that a complaint should not be

dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.*

No one is under our system of law turned away from the

courthouse door without a proper adjudication if he has filed a

sworn complaint which is cognizable in our law.

With these principles in mind, we turn to analyze the instant

complaint. We believe that fairly read it seeks to state three

related causes of action:

1) In the first instance the complaint is an attack upon the

“premature” calling out of the Ohio National Guard by Gover-

nor Rhodes on May 1, 1970, and its dispatch to the campus of

Kent State University ‘to displace civilian authority.” The relief

sought is an injunction against such ‘‘premature” employment

of the Guard on future occasions.

“s See, e.g., Leimer v. State Mutual Life Assur. Co., 108 F. 24 302; Dioguardi

v. Durning, 139 F. 24 774; Continental Collieries v. Shober, 130 F. 2d 631.”

Conley v. Gibson, 355 U.S. 41,45-6 (1957).

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2) The complaint also constitutes an attack upon the con-

duct of the Guard troops upon their arrival at Kent State. Here

the allegations are that the defendants, who controlled the

troops, without necessity for doing so violated the students

rights of speech and assembly, made unconstitutional arrests,

beat and injured students “needlessly” and employed live rifle

fire against an unarmed crowd and killed and injured a number

of students without appropriate legal justification. In this phase

of the complaint the allegations also are that these claimed

violations resulted from policies and practices of defendants

which constitute a continuing pattern of conduct which threat-

ens plaintiffs with future such violations. :

3) The complaint also seeks a declaratory judgment finding

unconstitutional an Ohio Statute, OhioRev. Code § 2923.55

(Supp. 1969), which under certain detailed circumstances pur-

ports to grant immunity to National Guard troops (and other

law enforcement personnel) from criminal charges arising out of

their activities in suppressing riots. Each of these causes of

action (although dismissed as a whole) deserves separate con-

sideration.

I The Attack Upon the Executive Emergency Power

In this aspect of this appeal appellants ask the courts to engage

in prior restraint upon the exercise of emergency power specifi-

cally committed by constitution to the executive branch of

government. In this phase of the pleading we find no facts

which call for hearing, no relief sought which the court below

could appropriately have granted, and no allegations of a breach

of actionable rights. As to this aspect of the case, we affirm the

District Court.

At the outset, this complaint ‘concedes that there was dis-

order which had not been terminated by normal civilian con-

trols and that such disorders were continuing as of the time the

Governor called out the troops. The complaint says:

“10. On or about May 1, 1970, there occurred certain

14

| disorders in the area of the Kent campus which resulted in

the imposition of a curfew by the mayor of Kent. There-

after, demonstrations and disorders continued in and

about the Kent campus.”

Executive decisions to call out military force have been

litigated a number of times in the history of the Republic.

Duncan v. Kahanamoku, 327 U.S. 304 (1946); Sterling v. Con-

stantin, 287 U.S. 378 (1932);Moyer v. Peabody, 212 U.S. 78

(1909); Ex parte Milligan, 71 U.S. 2 (1866); Luther v. Borden,

48 U.S. 1 (1849); Martin v. Mott, 25 U.S. 19 (1827). But we

find no instance where the courts have sought to substitute

judicial judgment for the constitutionally empowered judgment

of the executive. Still less have the courts cumbered that execu-

tive judgment with the prior restraint of an injunction seeking

to describe in advance the precise conditions which would make

its exercise appropriate.

indeed, in the case principally relied upon by appellants, the

Supreme Court of the United States said:

“As the State has no more important interest than the

maintenance of law and order, the power it confers upon

Governor as Chief Executive and Commander in Chief

of its military forces to suppress insurrection and to pre-

serve the peace is of the highest consequence. The deter-

minations that the Governor makes within the range of

that authority have all the weight which can be attributed

to state action, and they must be viewed in the light of the

object to which they may properly be addressed and with

full recognition of its importance. It is with appreciation

of the gravity of such an issue that the governing principles

have been declared.

“By virtue of his duty to ‘cause the laws to be faithfully

executed,’ the Executive is appropriately vested with the

discretion to determine wea an exigency requiring

military aid for that purpose has arisen. His decision to

that effect is conclusive. That construction, this Court has

said, ‘in speaking of the power constitutionally conferred

by the Congress upon the President to call the militia into

actual service, ‘necessarily results from the nature of the

15

power itself, and from the manifest object contemplated.’

The power ‘is to be exercised upon sudden emergencies,

upon great occasions of state, and under circumstances

which may be vital to the existence of the Union.’ Martin

v. Mott, 12 Wheat. 19,29,30. Similar effect, for corre-

sponding reasons, is ascribed to the exercise by the Gover-

nor of a State of his discretion in calling out its military

forces to suppress insurrection and disorder. Luther v.

Borden, 7 How. 1, 45; Moyer v. Peabody, 212 U.S. 78,

83.” Sterling v. Constantin, 287 U.S. 378, 399 (1932).

Recently the Fourth Circuit provided some of the practical

logic for our decision on this point:

“The responsibility for maintaining public peace on a

day-to-day basis is lodged with the executive branch of

government. As we recently have become all too painfully

aware, public peace in our cities may be suddenly breached

by massive civil disorder. Dealing with such an emergency

situation requires an immediacy of action that is not

possible for judges. We think it would be highly inappro-

priate for us, removed from the primary responsibility for

maintaining order and with the benefit of time for reflec-

tion not available to the mayor, to substitute our judgment

of necessity for his.” United States v. Chalk, 441 F.2d

1278 (4th Cir. 1971).

II The Alleged Continuing Threats to Constitutional Rights

As to the second cause of action sought to be pled, we quote

in full the relevant language from the complaint:

“On May 4, 1970, members of the Ohio National Guard

fired their guns into a crowd of persons on the Kent State

University main campus, injuring several students and kill-

ing four. The culpable and web unjustified shooting of

unarmed civilians = Ohio National Guard troops deprived

such persons of life and liberty without due process of law.

* * *

—

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“(b) Defendants failed to adequately provide Ohio National

Guard troops with specialized training in control of civilian

disorders or to provide them, when assigned to the Kent

campus, with adequate equipment for dealing with civilian

disorders by means other than the use of deadly force

when such equipment, better adapted for dealing with

civilian disorders than that utilized by the Ohio National

Guard troops at the Kent campus, was available. Defend-

ants also caused and ordered Ohio National Guard troops

to carry live bullets ready for firing in their guns when on

duty in and about the Kent campus. The use of inade-

uately trained troops, their lack of equipment adapted

or control of civilian disorders, and the use by Ohio

National Guard troops of guns loaded with live bullets to

control civilian disorders substantially increased the risk of

the injuries and killings which occurred and, therefore, the

deprivations of life and liberty without due process of law

which occurred on May 4, 1970. This risk remains and

constitutes a real threat to plaintiffs and other students of

further deprivations of life and liberty without due process

of law. Defendants continue to inadequately train Ohio

National Guard troops for civilian disorder control, con-

tinue to fail to equip them with adequate equipment for

dealing with civilian disorders and to cause and order them

to carry live bullets loaded in their guns while on duty

during civilian disorders. In addition, defendants have

failed to instruct and order Ohio National Guard troops to

limit their use of deadly force during civilian disorders to

those instances in which deadly force could lawfully be

used by police officers.

- “(c) Defendants permitted and caused Ohio National

Guard troops to (1) engage in unlawful and unjustified

beatings of students in and around the Kent campus.

Beatings were administered to some students by Ohio

National Guard troops, in part as a result of the exercise of

the rights of speech and assembly by students who were

beaten, and others. Defendants also permitted and caused

Ohio National Guard troops to unlawfully detain, and

cause to be detained, students, some as a result of the

exercise by such students, and others, of the rights of

speech and assembly. These actions of defendants, and

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their agents, have deprived ns of li without due

presi of law jadbedill «dines ait without

due process of law for the exercise ff rights protected by

the First and Fourteenth Amendments to the United

States Constitution. Because of the past actions of defend-

ants’ agents and defendants’ continued cmcibes use of

Ohio National Guard troops to displace civilian authority

during campus disorders, there remains a very real threat

that plaintiffs and other students will be subjected to

similar beatings and detentions in the future and thereby

be deprived of ths same rights. The threat of such punish-

ment for exercise of rights protected by the First and

Fourteenth Amendments inhibits and intimidates plaintiffs

and other students in their exercise of such rights.

“(d) Defendants caused and ordered Ohio National

Guard troops to break up lawful and peaceable meetings,

demonstrations and assemblies in and about the Kent

campus and thereby deprived plaintiffs and other students

of their rights of speech, assembly, association and petition

of government. The meetings, demonstrations and assem-

blies broken up were, in part, protesti against the occu-

pation of the campus by a lellicsey Parte: Defendants’

actions violated the First and Fourteenth Amendments to

the United States Constitution and substantially increased

the risk of the unjustified killings and injuries which oc-

curred on the Kent campus of May 4, 1970. They were not

legitimatized by the application of concepts of Martial

Law, because there was neither an invasion nor breakdown

of civilian authority. Moreover, to the extent that any

provision of Ohio law either authorize the imposition of

Martial Law except during time of invasion or breakdown

of civil authority, or authorize a suspension of First

Amendment rights as a consequence of the declaration of

Martial Law, lawful or otherwise, they violate the First and

Fourteenth Amendments to the United States Constitu-

tion. Defendants’ past action in ordering Ohio National

Guard troops to break up lawful assemblies creates a real

threat to plaintiffs and other students that, if they partici-

pate in lawful activities they will be assaulted, killed,

injured or unlawfully detained by Ohio National Guard

troops’’*

‘ In relation to these portions of the pleading, cf. Prevention and Control

of Mobs and Riots, Federal Bureau of Investigation, U.S. Dept. of Justice, J.

Edgar Hoover, 89-91 (1967), quoted in Appendix to this opinion. It is

recognized that the policies outlined may set standards higher than those

imposed by the Constitution. ‘

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The question which we think these paragraphs serve to ;

when os complaint is read with the fair ar cats pm

be deduced from it, is this: Was there and is there a pattern of

training, weaponry and orders in the Ohio National Guard

which singly or together require or make inevitable the use of

fatal force in suppressing civilian disorders when the total cir-

cumstances at the critical time are such that nonlethal force

would suffice to restore order and the use of lethal force is not

reasonably necessary?

A citizen complaint that state action threatens federally

protected rights is, of course, cognizable in the federal courts

under the due process clause of the Fourteenth Amendment:

( “[N]or shall wed State deprive any person of life, liber-

ty or property, without due process of law.”

In Sterling v. Constantin, 287 U.S. 378 (1932), the same case

we have previously relied upon in affirming dismissal of the first

phase of this case, the Supreme Court affirmed a federal District

Court’s injunctive relief against the Governor of Texas and

other state officials who under claim of military necessity had

taken over control of privately owned oil fields. The Supreme

Court there held:

“When there is a substantial showing that the exertion

of state power has overridden private rights secured by

that Constitution, the subject is necessarily one for judicial

inquiry in an appropriate proceeding directed against the

individuals charged with the transgression. To such a case

the federal judicial power extends (Art. Ill, §2) and, so

extending, he court has all the authority appropriate to its

exercise. Accordingly, it has been decided ina great variety

of circumstances that when questions of law and fact are

so intermingled as to make it necessary, in order to pass

upon the federal question, the court may, and should,

analyze the facts. Even when the case comes to this Court

from a state court this duty must be performed as a

necessary incident to a decision upon the claim of denial

of federal right. Kansas City Southern Ry. Co. v. Albers

Commission Co., 223 U.S. 573, 591;Creswill v. Knights of

— ee ee i i, 7

—_— _—

19

Pythias, 225 U.S. 246, 261; Northern Pacific Ry. Co. v.

North Dakota, 236 U.S. 585, 593; Union Pacific R. Co. v.

supra at 398.

In another important case the Supreme Court affirmed a

federal District Court’s order, entered in the very midst of

war, restoring the authority of the civilian courts of the

territory of Hawaii as to nonmilitary criminal cases. Duncan

v. Kahanamoku, 327 U.S. 304 (1946).

Even more obvious recognition of federal judicial power to vindi-

cate federal Constitutional rights claimed to be abused by state

power is found in recent cases in United States Courts of

Appeals. Lankford v. Gelston, 364 F.2d 297 (4th Cir. 1966);

Build of Buffalo, Inc. v. Sedita, 441 F.2d 254 (2d Cir. 1971).

In a recent decision the United States District Court for the

Middle District of Kentucky has conducted a full hearing on

somewhat similar complaints pertaining to state actions con-

cerning disorders on the campus of the University of Kentucky.

The complaint therein was dismissed after a hearing on the facts

and this court has affirmed that decision. Bright v. Nunn, 448

F.2d 245 (6th Cir. 1971).

The partial dissent in this case relies basically on a form of

abstention usually referred to as the political question doctrine.

At the height of its influence in the federal courts, it caused the

‘ourts to abstain from adjudicating many asserted federal con-

titutional violations in fields as widely diverse as voting rights

ind the rights of prisoners in correctional institutions. The

liminished vitality of the political question doctrine is specifi-

ally illustrated in such voting rights cases as Reynolds v. Sims,

177 U.S. 533 (1964), and Baker v. Carr, 369 U.S. 186 (1962),

nd in such prisoner rights cases as Haines v. Kerner, -U.S.

(1972) (Decided Jan. 13, 1972), and Gonzales v. Rockefeller,

F.2d-(2d Cir. 1971) (Decided Dec. l, 1971).

It is worth emphasizing that the Haines case came down on

anuary 13, 1972, from a unanimous Supreme Court.

There is a hint in the dissent that perhaps the Constitution

20

conveys to the Executive and to Congress such powers over the

military forces as to exclude any form of judicial review. No

express language of the Constitution may be found which even

arguably supports such a proposition when it is applied to the

use of military force in domestic affairs. Cases we have cited

previously (Duncan v. Kahanamoku, supra; Sterling v. Con-

stantin, supra; Ex parte Milligan, supra) stand in flat contra-

diction to this proposition. See also Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579 (1952).

Obviously, if the control of ultimate force were in the hands

of the Executive alone, constitutional government in our demo-

cracy would rest entirely upon the will (and whim) of one man.

The final point made by the dissent is that there is no

conceivable form of relief which the District Court could have

rendered. Far more applications for injunctive relief are filed,

heard and denied on the merits in the federal courts than are

ever granted, and such, of course, may well prove to be the case

when the issues here sought to be presented are actually the

subject of proofs. Nonetheless, the right to be heard is itself a

constitutional right of vital importance.

Further, if the District Court after evidentiary hearing were

to find from the facts developed before it that an affirmative

answer should be made to the summary question previously

phrased in this opinion, we have no doubt that the District

Court will find much material available for devising a suitable

remedy. See, for example: Prevention and Control of Mobs and

Riots, Federal Bureau of Investigation, U.S. Dept. of Justice, J.

Edgar Hoover (1967) (See Appendix to this opinion.); 32

C. F.R.§ 501(1971), “Employment of Troops in Aid of Civil

Authorities”; Instructions for Members of the Force at Mass

Demonstrations, Police Department, City of New York (no

date); Report of the National Advisory Commission on Civil

Disorders (1968).

As to further speculation on the form of relief, we follow the

Supreme Court admonition in Baker v. Carr, supra:

“Beyond noting that we have no cause at this stage to

doubt the District Court will be able to fashion relief if

Dmrcen TLD CV I@t& POOR COPY

gee

21

violations of constitutional rights are found, it is improper

now to consider what remedy would be most appropriate

if appellants prevail at the trial.” Baker v. Carr, supra at

198.

As to this phase of this complaint, the case is remanded for

further proceedings consistent with this opinion.

III The Attack on the Constitutionality of Ohio Rev. Code

§ 2923.55

The third cause of action upon which plaintiffs sought ad-

judication was, we believe, properly dismissed below.

The relief sought concerning the statute was a declaratory

judgment and no injunctive relief as to this issue was prayed for.

The statute attacked has never been construed by the appel-

late courts of Ohio. Viewing the statute on its face, we perceive

no substantial federal constitutional issue.

The statute reads:

Ҥ2923.55 Death or injury of rioter by use of necessary

force.

Police officers, special police officers, sheriffs, depu

sheriffs, highway patrolmen, other law enforcement offi-

cers, members of the organized militia, members of the

sre Sens of the United States, and firemen, oo

en in suppressing a riot or in dispersing or apprehend-

i an ins ache to decse’ and End as been

issued pursuant to section 2923.5] of the Revised Code,

are pa for killing, maiming, or injuring a rioter as a

consequence of the use of such force as is nece and

proper to suppress the riot or disperse or apprehend riot-

ers. This section does not relieve a member of the organ-

ized militia or armed forces of the United States from

prosecution by court-martial for a military offense.” Ohio

Rev. Code § 2923.55 (Supp. 1969).

What this language purports to do is to grant immunity

to policemen, firemen and members of the armed forces

from prosecution for killing, maiming or injuring a rioter

riot “as a consequence of the use of such force as is necessary

and proper to suppress the riot or disperse or apprehend riot-

22

ers.” On its face before the immunity came into existence, this

statute would seem to call for proofs that a riot existed, that

there had been an order to desist and disperse which had been

defied, and that force had been required to suppress the riot.

The statute might be argued to grant immunity from prosecu-

tion as a result of the use of lethal force against “rioters” where

the circumstances above were present; but this immunity would

only come into being where the use of such lethal force was

“necessary and proper.” The necessary and proper language

appears to us (as apparently it did to the District Judge) to be

an approximation of the reasonable cause standard of the com-

mon law applicable to the use of fatal force. Schweder v.

Baratko, 103 Ohio App. 399 (1957); Skinner v. Brooks, 74

Ohio App. 288 (1944); 6 C.J.S. Arrest §13a. at 612 (1937).

If it be contended that contrary to the construction above

this statute has been construed by the Ohio National Guard as

authorizing the use of fatal force, even if under the circum-

stances lesser force would serve to restore order, such proofs

would be admissible under the second issue as to which we are

remanding this case, and appropriate relief could be granted

thereunder. ‘

It remains, of course, to be determined in the District Court

under Rule 23 and 23.(2) of the Federal Rules of Civil Pro-

cedure whether or not plaintiffs are appropriate representatives

of the class they purport to represent and whether or not, as

appellees contend, the United States is a necessary party to this

suit.

Reversed and remanded for further proceedings in accord-

ance with this opinion.

APPENDIX

Vv. EMPLOYMENT AND APPLICATION OF FORCE

The basic rule, when applying force, is to use only the

minimum force necessary to effectively control the situation.

Unwarranted application of force will incite the mob to further

violence, as well as kindle seeds of resentment for police that, in

23

turn, could cause a riot to recur. Ill-advised or excessive applica-

tion of force will not only result in charges of police brutality,

but also may prolong the disturbance. The major portion of

persons constituting a mob may be law-abiding citizens who

have been driven or led to participate in a lawless act because of

their belief in a cause.

For many, the mere appearance (Show of Force) of police

who represent law and order will be sufficient to bring them to

their senses and they will obey the order to leave peaceably.

The application of force by degrees will; in turn, cause more to

realize their error and they, too, will depart. Applying force by

degrees insures that the maximum force employed to restore

order was applied to the most violent and lawless individuals

only. The degrees and the order of the application of force

should be decided in advance of the operation, and preferably

included in the plan. All officers involved in the operation must

be aware of these degrees and must know when each is to be

applied and by whose authority. This is not meant to imply that

police should not meet force with greater force; it does mean

that unnecessary bloodshed must be avoided whenever possible.

Within the military establishment, the following is the pri-

ority or sequence of force applied:

1, Unload rifles with bayonets fixed and sheathed.

2. Unload rifles with bare bayonets fixed.

5, Tear Gas (CS & CN)

4. Loaded rifles with bare bayonets fixed.

A similar priority of force should be decided by each police

agency, based upon the weapons and equipment available to

that department for use in riot control duty.

There are numerous items of equipment available to the

police for use in controlling riots. The following is a discussion

and analysis’ of some of the more common items and tech-

niques:

A. Firearms

The most extreme action which a law enforcement officer

can take in any situation is the use of firearms. Under no

24

circumstances should firearms be used until all other measures

for controlling the violence have been exhausted. Above all,

officers should never fire indiscriminately into a crowd or mob,

- Such extreme action may result in injury or death to innocent

citizens and may erupt into a prolonged and fatal clash between

the officers and the mob. The decision to resort to the use of

firearms is indeed a grave one. Such a decision must be based

upon a realistic evaluation of the existing circumstances. Among

the important considerations, of course, are the protection of

the officer’s own life, as well as the lives o f fellow officers, and

the protection of innocent citizens. A basic rule in police

firearms training is that a firearm is used only in self-defense or

to protect the lives of others.

The firing of weapons over the heads of the mob as a warning

is objectionable. In addition to the possibility of injuring inno-

cent persons by ricocheted bullets or poorly aimed shots, the

firing may only incite the mob to further violence, either

through fear or anger. At best, this is a bluffing tactic anda

basic rule when dealing with a mob is NEVER BLUFF.

The possibility of receiving snipet fire cannot be overlooked.

A sniper must be dealt with rapidly and severely. If permitted

to operate, a sniper will not only pin down the police force but

will remain a threat to human life—both police and citizens. To

effectively handle a sniper, it may be necessary to employ a

countersniper, equipped and trained in the use of high-powered,

telescopic-equipped rifles. Police officers, crouched behind any

means of protection available and firing their service revolvers

or shotguns aimlessly at a building or rooftop,are endangering

lives and, at the same time, are prevented from accom plishing

their mission.

B. Bayonets

The mere presence of a bayonet in the hands of an officer has

a deterrent effect. This does not mean that a bayonet should be

used as a night stick or baton: if used, it should be a part of the

weapon and is appropriate for use with the standard shotgun. If

a special unit, such as the Riot Squad, is to be used and is

equipped with shotguns, the bayonet is effective in the Show of

BLEED THROUGH POOR COPY

25

Force and when engaged in the standard riot control forma-

tions.

C. Fire Hoses

Water from fire hoses may be effective in moving small

groups, in moving groups on a narrow front, or in defending a

defile or roadblock. Water has been used in the recent and past

and has a psychological, as well as a physical effect. Water may

be employed in two ways; as a flat trajectory weapon utilizing

pressure, or as a high trajectory weapon akin to heavy rainfall.

The latter method is especially effective during cold weather. If

water is used in such ways, a harmless dye can be mixed into

the stream for possible later identification of the rioters. Em-

ployed as a flat trajectory weapon, utilizing the pressure to

physically move individuals, serious injury or death can result.

The decision to employ water, in one or both methods, should

be arrived at during the planning phase and should be based on

the discretion of police and community officials.

D. Dogs

Some police departments have found that dogs are an asset in

police work. Dogs also serve to protect the officer. However,

both the dogs and handlers must be well trained and disciplined.

Use of dogs to confront the demonstrators has sometimes

produced resentment and ill feeling on the part of the public in

general. Dogs can be employed effectively at roadblocks and by

foot patrols operating in an area previously cleared of rioters.

However, as a general rule, dogs should not be used when

confronting the mob, particularly during the Show of Force

phase when their presence could serve to furnish the spark that

would ignite the riot.

E. Horses

As with dogs, use of horses, on some occasions, has resulted

in ill feeling on the part of the public. However, horses may be

effectively employed on the periphery to control spectators and

prevent their entry into the troubled area. If a situation has

a

OPY BOUND TOO 6LOSE IN CENTER

26

seriously deteriorated and it is necessary to eject leaders from

the midst of the mob, harses employed in a diamond formation

may be used to escort the arresting officers through the mob

and to provide security for them during their return to police

lines. Horses may also be used effectively in blocking positions

to control the movement of the mob. Under no circumstances

should horses be used to “charge” the mob.

F. Batons

The baton is an adaptable instrument which can be used as an

offensive or defensive weapon. It must, however, be used prop-

erly and judiciously to obtain the desired results and, at the

same time, avoid criticism of the police officer and the agency

he represents. When facing a crowd or mob, the baton should be

held with both hands, the palm of the right hand down and the

palm of the left hand up with the hands close to the ends. The

baton should be used only in an emergency, and when blows are

struck, it should be with the intention of stunning or temporar-

ily disabling, rather than inflicting injury. Blows to the head

should be avoided. The baton used as an extension of the arm is

nerally more effective than when used as a bludgeon, or club.

Officers equipped with the baton must be thoroughly trained in

unison as a unit or team.

G. Chemical Agents

Law enforcement agencies have two objectives when using

chemical agents in riot control situations. The first is to- prevent

violence by the rioting group, and the second is to disperse the

crowd with minimum hazard to the individuals in the mob and

to the officers engaged in the operation. Prior to the use of

chemical agents, it must be established that the mob has an

averiue of escape; if not, panic could result. Chemical agents,

properly employed, provide the police commander with a dis

tinct advantage; they can negate the numerical superiority the

mob has over the police force. They are the most effective and

most humane means of achieving temporary neutralization ofa

mob with a minimum of personal injury. Chemical agents

BLEED THROUGH POOR COPY

27

should not be used or threatened to disperse demonstrators who

are not in fact endangering public safety and security. (Empha-

sis added.) Prevention and Control of Mobs and Riots, Federal

Bureau of Investigation, U.S. Dept. of Justice, J. Edgar Hoover,

89-91 (1967).

CELEBREZZE, Circuit Judge (concurring in part and dissent-

ing in part).

I concur with the majority in their affirmance of the District

Court with respect to the first and third causes of action as

described above. | respectfully dissent, however, from the ma-

jority’s decision to reverse the District Court’s dismissal of the

second cause of action.

As it has been liberally construed by the majority, the second

cause of action challenges the training, weaponry, and orders of

the Ohio National Guard which allegedly make inevitable the

unnecessary use of lethal and nonlethal force in controlling civil

disorders. This pattern of training, weaponry, and orders is said

to have caused the allegedly unwarranted use of both lethal and

nonlethal force on the Kent State campus in May of 1970, in

deprivation of the First and Fourteenth Amendment rights of

Appellants and others similarly situated, and it poses a con-

tinuing threat to their present and future exercise of those

rights. To remedy this asserted threat to their constitutional

rights, Appellants seek broad injunctive and declaratory relief

against the Governor of Ohio and Ohio National Guard officials

to prevent a recurrence of the allegedly unwarranted use of

force which is said to have taken place in May of 1970.

I disagree wtih the majority’s conclusion that the District

Court erred in dismissing this portion of the complaint as failing

to state a claim upon which relief could be granted. I find no

conceivable relief which the District Court could have granted

had it proceeded to hear evidence in support of these claims and

determined that all of the facts alleged were true. In this

respect, I recognize that “(t]he question of the propriety of

remedies prayed for by plaintiffs...is not an issue on this ap-

peal.” Build of Buffalo, Inc. v. Sedita, 441 F.2d 284, 288 (2d .

;OPY BOUND TOO €LOSE IN CENTER

28

Cir. 1971). However, the question of whether there exists any

conceivable form of relief which the District Court could have

granted in response to Appellants’ claims certainly is an issue on

this appeal.

With respect to the, injunctive relief which is sought to cure

the alleged threat posed by the pattern of training and weapon-

ry of the Ohio National Guard, | am unable to escape the

conclusion that any such relief would present a nonjusticiable

political question. The Supreme Court’s most recent and thor-

ough’ discussion of the political question doctrine appears in

Baker v. Carr, 369 U.S. 186, 208-26 (1962). There the Supreme

Court set forth the following characteristics of nonjusticiable

political questions:

“It is apparent that several formulations which vary

ightly according to the settings in which the questions

at mie descr a political posite ekcngh seth has

one or more elements which identify it as essentially a

function of the separation of powers. Prominent on the

surface of any case held to involve a political question is

found a textually demonstrable soesioutlaall commit-

ment of the issue to a coordinate political department; or a

lack of judicially discoverable and manageable standards

for resolving it; or the impossibility of decidin without an

initial policy determination of a kind clearly for nonjudi-

cial discretion; or the impossibility of a court’s under-

taking independent resolution without expressing lack of

the respect due coordinate branches of government; or an

unusual need for unquestioning adherence to a political

decision already made; or the potentiality of embarrass-

ment from multifarious pronouncements by various de-

partments on one question.” 369 U.S. at 217.

In considering whether the voting rights asserted in Baker V.

Carr constituted nonjusticiable political questions, the Supreme

Court noted that “[u]nless one of these formulations is inex-

tricable from the case at bar, there should be no dismissal for

nonjusticiability on the ground of a political question’s pres-

ence.” Id.

In the present case, I believe that every one of the above

29

formulations is “inextricable” from the second cause of action

to the extent that it requires judicial intervention in National

Guard training and weaponry. I find a “textually demonstrable

constitutional commitment” of National Guard training and

weaponry to a coordinate political department under Article I,

Section 8, Clause 16, of the United States Constitution, which

provides that Congress shall have the power

“To provide for organizing, arming, and disciplining,

the Militia, and for governing such Part of them as may be

employed in the service of the United States, reserving to

the States respectively, the Appointment of the Officers,

and the Authority of training the Militia according to the

discipline prescribed by Congress.”

Pursuant to this constitutional authority, Congress has en-

acted legislation which governs the training and weaponry of

the National Guard. 32 U.S.C. § §501-07,701. Moreover, Con-

gress has expressly provided that

“The President shall prescribe regulations, and issue

orders, necessary to organize, discipline, and govern the

National Guard.” 32 U.S.C. §110.

And under. 32 U.S.C. §108, the President has available the

following means by which to enforce any regulations which he

or the Congress may prescribe for the National Guard:

“If, within a time to be fixed by the President, a State

does not comply with or enforce a requirement of, or

regulation prescribed under, this title its National Guard is -

barred, wholly or partly as the President may prescribe,

from receiving money or any other aid, benefit, or privi-

lege authorized by law.”*

* The potential effectiveness of this sanction is evidenced by the fact that

“[t]he Federal Government pays for 90 percent of the operating costs,

virtually all of the equipment, and nearly half of the cost of the physical

installations and facilities” of the National Guard. Report of the National

Advisory Commission on Civil Disorders at 498 (Bantam ed. 1968).

30

This power to prescribe and enforce regulations for the

training and weaponry of the National Guard, which Congress

has delegated in part to the President, is more than a mere

token and unexercised authority. In July of 1967, when civil -

disorders had come to the forefront of national concern, Presi-

dent Johnson announced that he had ordered the addition of

special training courses to the existing National Guard training

program. Weekly Compilation of Presidential Documents, Vol.

3, No. 30, at 1056 (1967). Moreover, under the authority

delegated to the President, the Department of the Army has

specifically set mandatory riot-control training requirements for

all Army National Guard and certain Air National Guard units.

See Report of the National Advisory Commission on Civil

Disorders, supra, at 505.

I believe that the congressional and executive authority to

prescribe and regulate the training and weaponry of the Nation-

al Guard, as set forth above, clearly precludes any form of

judicial regulation of the same matters. I can envision no form

of judicial relief which, if directed at the training and weaponry

of the National Guard, would not involve a serious conflict with

a

“coordinate political department;...a lack of judicially

discoverable and manageable standards for resolving [the

question | ;..the impossibility of deciding without an initial

policy determination of a kind eee for nonjudicial

discretion;...the impossibility of a court’s undertaking in-

dependent resolution without expressing lack of the re-

spect due coordinate branches of government;...an unusual

need for unquestioning adherence to a political decision

already made; [and] the potentiality of embarrassment

from multifarious pronouncements by various departments

on one question.” Baker v. Carr, supra, 369 U.S. at 217.

Any such relief, whether it prescribed standards of training and

weaponry or simply ordered compliance with the standards set

by Congress and/or the Executive, would necessarily draw the

courts into a nonjusticiable political question, over which we

have no jurisdiction.

DoAfR CORY

31

The question remains whether, upon the claims stated in the

second portion of the complaint, the District Court could have

granted any injunctive relief which would not have entailed

judicial involvement in the training and weaponry of the Na-

tional Guard. The majority relies heavily on Sterling v. Constan-

tin, 287 U.S. 378 (1932), Lankford v. Gelston, 364 F.2d 197

(4th Cir. 1966), and Build of Buffalo, Inc. v. Sedita, 441 F.2d

284 (2d Cir. 1971), apparently for the proposition that in-

junctive relief might be available against specific conduct by the

Ohio National Guard which threatens Appellants’ constitution-

al rights. Any such injunctive relief directed at specific unlawful

conduct of the National Guard, apart from the training and

weaponry of the Guard, would seemingly avoid the political

question problem discussed above. Nonetheless, I believe that

any such injunctive relief is unavailable to Appellants in res-

ponse to the claims in their second cause of action.

In Sterling v. Constantin, supra, the conduct and specific acts

of the National Guard in response to civil disorders were not at

issue. As the Supreme Court noted:

“Fundamentally, the question here is not of the power

of the Governor to proclaim that a state of insurrection, or

tumult, or riot, or Gopi of the peace exists, and that it is

nece to call military force to the aid of the civil

wer. Nor does the question relate to the quelling of

isturbances and the overcoming of unlawful resistance to

civil authority. The question a oi us is simply with

epee to the Governor’s attempt tor te by executive

order the lawful use of complainants” properties in the

production of oil.” 287 U.S. at 401-02.

That the Sterling decision did not authorize federal courts to

grant injunctions against the future conduct of the National

Guard in the face of civil disorders is further evidenced by the

Supreme Court’s recognition of the discretion which must be

employed in such emergency situations:

“The nature of the power [of a — to call out the

militia to suppress insurrection and disorder] also neces-

sarily implies that there is a permitted range of honest

32

dgment as to the measures to be taken in meeting force

with force, in suppressing violence and restoring sake for

without such li to make immediate decisions, the

wer itself would be useless. Such measures, conceived in

good faith, in the face of the emergency and directly

related to the quelling of the disorder or the prevention of

its continuance, fall within the discretion of the Executive

in the exercise of his authority to maintain peace.” 287

U.S. at 399-400.

As the majority notes, the complaint concedes that when the

Ohio National Guard troops were deployed to the Kent State

campus in May of 1970, there existed disorders which had not

been brought under control by the civilian authorities. There-

fore, any injunctive relief which the District Court might hav

ted to curb certain conduct of the Guard troops would have

restricted the discretion which the Governor and the Nationa

Guard officials must be free to exercise in the face of futur

disorders.

I am not suggesting that in a proper case, federal courts are

barred from undertaking an after-the-fact review of Nationd

‘Guard conduct which has allegedly deprived persons of their

‘constitutional rights. Nor am I suggesting that National Guard

troops could never be the subject of some form of injunctive

restraint in their conduct in quelling civil disorders. Rather, |

simply believe that such an injunction cannot be issued when

the future conduct to be restrained — such as the Ohio Nationd

Guard’s allegedly unlawful disruption of speeches and assem-

blies, arrests, and use of nonlethal and lethal force which ar

challenged here — necessarily rests upon the exercise of dis

cretion by state officials in response to a given civil disorder. In

this respect, I believe that Lankford v. Gelston and Build of

Buffalo, Inc. v. Sedita, supra, are clearly distinguishable from

the present case. In Lankford, the Court of Appeals for the

Fourth Circuit issued an injunction against the Baltimore Police

Department, barring its personnel from conducting searches of

private dwellings solely on the basis of anonymous tips and

hence without probable cause. And in Sedita, the Court of

Appeals for the Second Circuit simply recognized that some

BLEED THROUGH POOR COPY

33

form of injunctive relief might be issued if the plaintiffs could

prove their allegations that the Buffalo city officials and the

Buffalo Police Department had engaged in or condoned a sys-

matic pattern of abusive conduct designed to deprive plain-

iffs of their constitutional rights. The types of state action

which were challenged in these cases were unlawful on their

face; neither type oT reukans could have been justified under a

“lid exercise of discretion by state or city officials. Were any of

he conduct challenged in the present complaint the type which

‘ould never be justified in the quelling of civil disorders, I am

ertain that injunctive relief should similarly be available to

event its recurrence.

The conduct challenged in the present complaint, however is

jot illegal and unjustified on its face. Rather, the legality of,

ind the justification for, the conduct challenged here necessari-

y rest upon the conditions which prevail at a given civil dis-

der. | can envision no form of injunctive relief which could

woperly predetermine the conditions of civil disorder under

vhich speeches and assemblies shall and shall not be disrupted,

rests shall and shall not be made, and lethal and nonlethal

orce shall and shall not be employed.

I therefore believe that the District Court was powerless to

ssue any type of an injunction directed at the specific conduct

f the Ohio National Guard which is challenged in the com-

laint. No less than an injunction prescribing prerequisites for

he Governor’s calling out the National Guard, an injunction

orbidding or restricting the discretionary conduct challenged in

he poe would operate as an impermissible prior restraint

n the state officials’ judgment in the face of future civil

isorders.

There thus being no injunctive relief which, in my opinion,

¢ District Court could have granted in response to Appellants’

‘cond cause of action, only the declaratory judgment prayed

x in the complaint remains to be considered. As discussed

ove in the context of injunctive relief, I believe the political

uestion doctrine would similarly bar any form of declaratory

idgment relating to the training and weaponry of the Ohio

ational Guard.

OPY BOUND TOO E€LOSE IN CENTER

34

The only other conceivable form of declaratory judgment,

apart from that relating to the training and weaponry of the

National Guard, would be a judgment determining the legality

of the specifically challenged conduct of the Ohio National

Guard on the Kent State campus in May of 1970. I believe it is

clear from the complaint, however, that the legality of the

specific conduct of the National Guard troops on the Kent

State campus in May of 1970 was not properly before the

District Court as an “actual controversy” warranting a declara-

tory judgment under 28 U.S.C. §2201. The thrust of the claim

asserted in the complaint is the present threat which the con-

tinuing pattern of training, weaponry, and orders of the Ohio

National Guard poses to Appellants’ First and Fourteenth

Amendment rights. Indeed, the complaint characterizes the

Plaintiffs and other members of the class which they represent

as students enrolled in Kent State University at the time the

complaint was filed on October 15, 1970. Nowhere does the

complaint allege that the named Plaintiffs or othe- members of

the class were in fact the direct subjects of the alleged dis-

ruptions of speeches and assemblies, arrests, or use of nonlethal

and lethal force in May of 1970 or that they were even enrolled

in the University at the time of those disorders. Therefore,

although the conduct of the National Guard in May of 1970

may have served as evidence of the alleged threat to Appellants’

constitutional rights, I do not believe that it constituted a

“substantial controversy, between parties having adverse legal

interests, of sufficient immediacy and reality to warrant ‘the

issuance of a declaratory judgment” by the District Court under

the present complaint. Golden v. Zwickler, 394 U.S. 103, 108

(1969), quoting Maryland Casualty Co. v. Pacific Coal & Oil

Co., 312 U.S. 270, 273 (1941).

1 thus am of the opinion that no conceivable form of in-

junctive or declaratory relief could have been granted by the

District Court in response to the claims asserted under the

second cause of action. My conclusion is in no way altered by

this Court’s decision in Bright v. Nunn, 448 F.2d 245 (6th Cir.

1971). Although the plaintiffs in Bright sought declaratory and

injunctive relief similar to that prayed for in the present com-

BLEED THROUGH POOR Cory

35

laint, it is apparent that the availability of relief was not

onsidered in the Bright decision.

I also disagree with the majority’s position that “fa] com-

laint that state action threatens tederally protected rights is, of

ourse, cognizable in the federal courts... (my emphasis). I

elieve this conclusion and the result reached thereunder ignore

1e numerous cases which clearly establish that a threat to, or

chilling effect” upon, a citizen’s constitutional rights does not

stomatically constitute a justiciable case or controversy for the

deral courts. As noted by the Court of Appeals for the

istrict of Columbia Circuit, not “every plaintiff who alleges a

irst Amendment chilling effect and shivers in court has there-

y established a case or controversy.” National Student Associ-

ion v. Hershey, 412 F.2d 1103, 1113-14 (D.C. Cir. 1969).

ven those cases which have liberally recognized claims of a

hilling effect” appear to raise serious questions as to whether

e alleged threat to Appellants’ constitutional rights in the

esent case is cognizable as a justiciable case or controversy.

e, e.g., National Student Association v. Hershey, 412 F.2d

03 (D.C. Cir. 1969); Tatum v. Laird, 444 F.2d 947 (D.C. Cir.

71). Compare Younger v. Harris, 401 U.S. 37, 42 (1971);

iden v. Zwickler, 394 U.S. 103 (1969). Being of the opinion

at no relief could be granted in response to the present

mplaint if it does indeed present a justiciable case or contro-

rsy, | find it unnecessary to resolve this more complex ques-

mn.

For the reasons set forth above, I would affirm the District

urt in its dismissal of all causes of action asserted in the

mplaint.