Amicus Curiae Brief — Gilligan v. Morgan

.

No. 71-1553

in the

Supreme Court of the United States

4

OCTOBER TERM, 1972

JOHN J. GILLIGAN, et al.,

Petitioners

vz

CRAIG MORGAN, et al.,

Respondents

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE LAW REVISION CENTER

AS AMICUS CURIAE

DAVID E. ENGDAHL

University of Colorado

School of Law

Boulder, Colorado 80302

(303) 443-2211, Ext. 6911

Attorney for Amicus

December 29, 1972 The Law Revision Center

TABLE OF AUTHORITIES ...........-----eceeeees

INTEREST OF AMICUS .........-5 02 eee eee ececeees

SUMMARY OF ARGUMENT ........---.-0-+eeee00:

ARGUMENT 6550 ob c5 ccc iccenveccevesseseussens

POOR COPY

BLEED THROUGH

vii

TABLE OF AUTHORITIES

Cases Page

Alabama v. United States, 304 F.2d 583 (Sth Cir. 1962),

aff'd per curiam, 371 U.S. 37 (1962)................

Bishop v. Vandercook, 228 Mich. 299, 200 N.W. 278

(UDDOD iss ow RUG G in Rhea sa kk Rs Oey T

Brown v. Board of Education, 349 U.S. 294 (1955)..... 23, 24

Case of Ship Money, The King v. Hampden,

3 State Frias B25. C1GOT osc isc ooo 5,21, 30

Chambers v. Hendersonville City of Board of Education,

tpt deena x. the, ) ROP i pees

Constantin v. Smith, 57 F.2d 227 (E.D. Tex. 1932) .....

Cottonreader v. Johnson, 252 F. Supp. 492

I Bi isi 454k ides cd ae:

Edmund Earl of Kent’s Case (1327), in Hale, History ~

of the Common Law 40-41 (2d ed. NPROE eco sc

Ela v. Smith, 71 Mass. (5 Gray) 121, 66 Am. Dec. 356

(Sup. Jud. Ct. Norfolk Co., 1855) ..................

Ex parte McDonald, 49 Mont. 454, 143 Pac. 947

UDR er eu ow nae oe ee ck 15

Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) ........... 14

Griffin v. School Board of Prince Edwards County,

FIT AAO 6 is 5s bes os oc 24

Grisham v. Hagan, 361 U.S. 278 (1960) ............... 14

Hammond v. Brown, 323 F. Supp. 326 (N_D. Ohio,

E.D. 1971); aff'd 450 F.2d 480 (6th Cir. 197 SHEE ESS 28

Houser v. Hill, 278 F. Supp. 920 (M.D. Ala. ho | Pe 24

Hyde v. Melvin, 11 Johns. 424 (N.Y. 1814)............. 10

Johnson v. Duncan, 3 Martin 530, 6 Am. Dec. 675

8. TOUS) in ee SS oe a 11

King v. Hampden, The Case of Ship Money,

5 State Teele B2S-41G3 7s 55k cv. oe cs 5,21. 30

viii

Cases (Continued)

ke.

Kinsella v. Singleton, 361 U.S. 234 (1960) .......-.-+-- 14

Krause v. Ohio, 31 Ohio St. 2d 132,

0 8 OID T En ae ion Ce AE a d's 27

Krause v. Rhodes, No. 71-1622 (6th Cir. 1972)........-. 27

Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966)....... 24

- Local 309, United Furniture Workers y. Gates,

75 F. Supp. 620 (N.D. Ind. 1948) ........----- eee 25

McConnell v. Hampton, 12 Johns. 203 (N.Y. 1815)....... 10

McElroy v. Guagliardo, 361 U.S. 281 (1960)..........-- 14

Middleton v. Denhardt, 261 Ky. 34, 87 S.W.2d 139

C1 | Te er ne ee rey i EER Re Ee 15

Miller v. Rhodes, No. 71-1623 (6th Cir. 1972) ........-. 27

Morgan v. Rhodes, No. 71-1335 (6th Cir., Feb. 13, tetas. sae

Moyer v. Peabody, 212 U.S. 178 (1909) ........--++ 12, 13

Moyer v. Peabody, 148 Fed. 870 (C.C.D. Colo. L90G) 1 iss 2% 13

NAACP v. Thompson, 357 F.2d 831 (Sth Cir. 1966),

cert. denied 385 U.S. 820 (1967) .....- cece ee eeees 24

O'Callahan v. Parker, 395 U.S. 258 (1969) .........655- 14

Refoule v. Ellis, 74 F. Supp. 336 (N.D. Ga. I9GF) isis cows 25

Reid v. Covert, 354 U.S. 1 (1957) «0.0.00 cece eee e eens 14

Relford v. Commandant, 401 U.S. 355 (1971) .......... 14

Rex v. Kennett, 5 Car. & P. 282, 172 Eng. Rep. 976

CETBLY Sik CO SEL eh 50 he BE ee EES 7,8

Rex v. Pinney, 5 Car. & P. 254, 263 n. (b), 172 Eng.

Rep. 962, 967 n. (b) (1832)... 2... eee eee ee eens 9

Reynolds v. State Election Board, 233 F. Supp. 323

(W.D. Okla. 1964) 2.0. cece cc eee eee nce eececees 24

Russell Petroleum Co. v. Walker, 162 Okla. 216,

SO P98 BF 1999S) ok 5k asvk 5 06 08 Hos hn eters 15

Scheuer v. Rhodes, No. 71-1624 (6th Cir. 1972)........- 27

POOR COPY

BLEED THROUGH

ix

Cases (Continued)

‘ Page

Seaney v. State, 188 Miss. 367, 194 So. 913 (1940)....... 15

Smith v. Shaw, 12 Johns. 222(N.Y. 1815) ............. 10

State v. Coit, 8 Ohio Dec. 62 (Pickaway, G.P.

OPT iilis eth h 0s KL CEL ke 5 ng ot 11, 20, 21

State ex rel. O’Connor v. District Court, 219 lowa

1165, 260 N.W. 73, 99 A.L.R. 967(1935)............ 15

Sterling v. Constantin, 287 U.S. 378 (1932)........ 10, 13, 15

Swann v. Charlotte-Mecklenburg Board of Education,

Bhi i ah) RNS RS Wd a pie SHOE tae EE 24

Thomas Earl of Lancaster’s Case ( 1327), 1 Hale, Pleas

of the Crown 343-46 (1st Amer. Ed. iy SPR eee 4

Toth v. Quarles, 350 U.S. 11 (1955) ................-. 14

. United States v. Jefferson County Board of Education,

380 F.2d 385 (Sth Cir. en banc), cert. denied,

ehethe brat vuthon duds cas ht PPE ES TOL perp ean Rais 24

United States v. Stewart, 27 F. Cas 1339 (Crim. Ct.

tg Merial. SIRT AIS COTE OTR CELL Pa eae 10

United States ex rel Palmer v. Adams, 26 F.2d 141 bed

athe rar nek pac Re POE TP aed Ma ORNS 15

Williams v. Wallace, 249 F. Supp. 100

GE APOE cairo ae ee 25

Wilson & Co. v. Freeman, 179 F. Supp. 520

De MR SNS Fs SO hie ae 15

Wise v. Withers, 7 U.S. (3 Cr.) 330 ( anal aU ai Sig 9 a 10

Wolin v. Port of N.Y. Auth., 392 F.2d 83 (2d Cir.)

cert. denied 393 U.S. 940(1968)................... 24

x

Constitutions and Statutes

Page

Bill of Rights, 1 W. & Mary, sess. 2,c. 2(1689) ......... 5

Rule 54(c), Fed. Rules Civ. Pro. ....--.--- ee eeeecess 26

1 Geo. 1, stat. 2,c. 5(1714) 22... cc cece cece eee eeces 5

13 Hen. 4, c.7 (1411) 4

Magna Carta, c. 39(1215) .....-- cece reece eee eee 4,17

Ohio Rev. Code § 2923.55 ......-.cccscceccsccceees 20

Chid Rev. Code 6 $923.23 2.6 cc cc cece vctesvceseces 21

Ohio Rev. Code § 5923.24 0... cc cccctecccccrcvcnsves 21

Ohio Rev. Code $ 5923.26 .......ccsseccevevcenuces 21

Ohio Rev. Code § 5923.37 ....... cece ccc teeeeeennes 20

Petition of Right, 3 Car. 1,c. 1, § 8(1628)........+.-+- 4

5 Rich. 2, Stat. 1,c. 5( 1381) 2... ..c cece eee eeecenees 4

PCY Tide yt Bote DN Ge Re Lay 29

Oe SEE DO NCIOR 4. og k vee aeecs ce eteps eengne dpe 28

ROSES Te ak cheb eneinns se £aeeds came nba ews 27

U.S. Const., art. 1, § 8,cl. 15; Art. 1V,8 4 .....----eees 9

Other Authorities

3 Annals of Cong. 576 (1792)

1 Blackstone, Commentaries on the Laws of England

400 (1765)

3 Campbell, The Lives of the Chief Justices of

England 421-31 (1831)

Coke, Third Institute, c. VII, p. 52

Coke, Fourth Institute, c. XVII

Comptroller General’s Report to the Congress, Training

and Equipping the Army National Guard for

Maintaining Order During Civil Disturbances,

Report No. B-160779 (Sept. 1972)

BLEED THROUGH POOR COPY

xi

Other Authorities (Continued)

Page

1 Cong, Ree: SOOO GCI 66 ZEA OAH 16

116 Cong, Ree, 27,399 A970): 5270 hee REE SP 17

Engdahl, Immunity and Accountability for Positive

Governmental Wrongs, 44 Colorado Law

sethettatt Seige CUR EEE Pd ap EO gre 21,

Engdahl, Soldiers, Riots and Revolution: The Law

and History of Military Troops in Civil Disorders,

57 lowa Law Review 1, 2-5 (1971). , 3, 5, 6, 9, 10, 11, 12, 15

Executive Privilege: The Withholding of Information

by the Executive, Hearing before the Subcommittee

on Separation of Powers, Senate Judiciary Com-

mittee, at 440-41, 92nd Cong., Ist Sess.(1971)........ 29

Hale, History of the Common Law (2d ed. 1716) ........ 4,5

| Hale, Pleas of the Crown 343-46 (1st Amer. Ed.

ig ot MeL TREO PER CG Goel 1. eienay 4 lil eae ae 4

Hearings on the Nomination of Ralph E. Erickson,

Assistant Attorney General, before Senate

Judiciary Committee, 92nd Cong., 2d Sess.

REM O6 o oo eh Ad one eke Undid bk bboe ewes ues 29

Hearings on Presidential Commissions, Senate J udiciary

Subcommittee on Administrative Practice and

Procedure, 91st Cong., Ist Sess.(1971). ............. 28

The Law Revision Center, A Comprehensive Study of

the Use of Military Troops in Civil Disorders,

43 Univ. of Colo. Law Review 399, 408-16

LE | OI aE ABE'S ACE NE te Si 78 i aR BO a 11, 20

Maitland, Constitutional History of England 266-28

RAMs fs ee dacs i PE ERE N EOE el ab eg 4

Note, The Federal Injunction as a Remedy for

Unconstitutional Police Conduct, 78 Yale

Ody DRAIN og ee as Fe Be 25

xii

Other Authorities (Continued)

21 Parliamentary History of England 688-98

4 ee Be eee ee ee ee 7,8

Report of National Advisory Commission on

Cool Elena t Les bok oo xo cs Rk Cae ees bw nmen 16, 17

Report of the President’s Commission on Campus

SE CTI TD vic es 5h ak ahs be 45 OS oO we 15, 21, 28

POOR COPY

BLEED THROUGH

No. 71-1553

amas

in the

Supreme Court of the United States

OCTOBER TERM, 1972

JOHN J. GILLIGAN, et al.,

Petitioners

vz

CRAIG MORGAN, et al.,

Respondents *

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE LAW REVISION CENTER

AS AMICUS CURIAE

STATEMENT OF INTEREST

OF AMICUS CURIAE

The interest of amicus The Law Revision Center in this

litigation is set forth in the Motion for Leave to File, bound

together with this brief, at page i supra.

The arguments of amicus in this brief support the position

of Respondents, Craig Morgan et al.

2

SUMMARY OF ARGUMENT

This brief argues that the complaint in this case, fairly con-

strued, states justiciable claims arising from the fact that Ohio

by her statutes, orders, rules and practices uses and threatens

to use her National Guard troops in civil disorders in a manner

that violates historic and fundamental requirements of due

process of law. The argument is that the due process violation

is present on the face of the statutes and does not depend upon

the unpredictable facts of particular disorders.

Part I of the brief summarizes very briefly (with reference

to more exhaustive authority) the origin and development and

repeated reaffirmation of the historic rule of due process that

forbids the employment of military force to control civil dis-

orders. It also explains the nuance of doctrine upon which

American constitutional law on this point is based, according

to which military units may be sued in civil disorders, but

only if they .are used as a civilian and not as a military force —

that is, subject to civilian law and not subject to military law,

controlled in every respect by local civilian officials and not

merely by the chief executive as commander-in-chief, and

subject to the same standards of civil and criminal liability

for their actions that govern civilian personnel in similar situa-

tions. It demonstrates that this is the controlling contemporary

rule of the American cases, even though this rule may not be

consistently respected by legislation and executive practice.

Part Il of the brief points out several respects in which,

according to the allegations of the complaint, Ohio disregards

the rule of due process for the use of military troops in civil

disorders. This Part of the brief also points out particular Ohio

statutory provisions which are the basis of Ohio’s unconstitu-

tional practice, which statutes appear to be wholly or partially

void on their face.

Part Ill of the brief argues that in addition to declaratory

relief against the unconstitutional statutes, orders, rules and

practices of Ohio in this regard, the complaint states a claim

appropriate for injunctive relief. It argues that in addition to

injunctive relief responsive to the matters discussed in Parts |

POOR COPY

BLEED THROUGH

3

‘

and II of this brief, it might also be appropriate for the District

Court to grant the specific forms of relief with regard to

training and equipment that were specifically asked in the

prayer of the complaint. The propriety of that specific relief,

however, is left to be argued more fully by Respondents in

their own brief.

ARGUMENT

I.

THERE IS A JUSTICIABLE DUE PROCESS STANDARD,

GIVEN SPECIFIC CONTENT BY SEVEN CENTURIES OF

REPEATED REAFFIRMATION, AND RECOGNIZED BY

THE DECISIONS OF THIS COURT AS WELL AS OTHER

AMERICAN COURTS, AGAINST WHICH THE LAWS,

ORDERS, RULES AND PRACTICES OF ANY STATE FOR

THE USE OF MILITARY TROOPS IN CIVIL DISORDERS

MUST BE TESTED. :

In the year 1181 Henry II issued the Assize of Arms, order-

ing that all free men in England be sworn to arms. Almost

from the date of the creation of this jurata ad arma—the body

of men sworn to arms—English law drew a distinction between

how armed force was to be used in civil situations and in war.

As a force for defense of the realm in case of war, the jurata ad

arma were placed under the control of military officials and

were governed by rules of law outside the scope of the common

law, rules that were administered by a prerogative tribunal

called the Court of the Constable and Marshal. However, as a

force for the arrest of malefactors and for the suppression of

domestic unrest and disorder, the very same jurata ad arma

were placed under the control of the sheriffs in their respective

counties and were governed by the rules of the fledgling

common law. In other words, the very same armed men con-

stituted at once the militia and the posse comitatus, but the

militia and the posse were entirely different entities in law,

controlled by different officers, and subject to different rules

of law (indeed, to different kinds of law). The details of this

history are more fully set out in Engdahl, Soldiers, Riots and

ee 2. ed dk on De ot Pt ~ o B ee 4 Oe

—

4

Revolution: The Law and History of Military Troops in Civil

Disorders, 57 lowa Law Review 1, 2-5 (1971).

The essential distinction between governing by sheer force

and prerogative, and governing according to law, was recognized

when King John promised to deal with his nobles in accordance

with “the law of the land.”” Magna Carta, c. 39 (1215). In the

fourteenth century that pledge of due process was taken as

authority by Parliament for its holding that it was unlawful for

the King to seize traitors by military force, and try them and

execute them by military process. Thomas Earl of Lancaster's

Case (1327), in 1 Hale, Pleas of the Crown: 343-46 (ist Amer.

Ed. 1847); Edmund Earl of Kent’s Case (1327), in Hale, History

of the Common Law 40-41 (2d ed. 1716). In 1381 the Peasant’s

Revolts were suppressed by the jurata ad arma. The peasants

were suppressed, however, by measures of unrestrained force

appropriate to the jurata ad arma in their role as a force of

war, exceeding what the common law allowed to the same

jurata ad arma in their role as the posse to suppress riots and

disorders. The common law therefore would have punished the

members of the jurata ad arma, were it not for the fact that

King Richard II] pardoned them specifically for their acts done

“sanz due proces de loye” — without due process of law.

5 Rich. 2, Stat. 1, c. 5 (1381).

When the first English riot act was enacted in 1411, it pro

vided for suppression of riots by the posse comitatus under

the command of civil officers, and made no provision whatso-

ever for intervention of the jurata ad arma in their military

as distinguished from this civilian role. 13 Hen. 4, c. 7 (1411).

During the Wars of the Roses and under the Tudors, absolutist

monarchs did suppress civil disturbances with military force,

but legal scholars of that period and of our own agree that

those actions were in violation of the law of the land. See

Maitland, Constitutional History of England 266-68 (1908).

What had been suffered under the Tudors was to cause revolu-

tion under the Stuarts. When Charles I in 1627 sent military

troops instead of relying on the civilian posse comitatus to

suppress riots in several towns, Parliament postponed all its

other business to prepare, under the leadership of the former

Chief Justice Lord Coke, the Petition of Right of 1628. That

olly and directly

this your realm.”

Institutes of the

Laws of England, Coke elaborated u n this thesis, and

added that for a soldier to kill a civilian der a claim of mili-

tary authority, at a time when civilian

be murder. Coke, Third Institute, c. VII, p. 52; Fourth Institute,

c. XVII. It is true that the King’s common law judges in The

of the.jurata ad arma—those men who at once formed the

militia and the posse—was the precipitating cause of the great

civil wars that began in 1642. See Soldiers, Riots and Revolu-

tion, supra, 57 lowa Law Review at 11-14. After the

Restoration, the due process principle that military measures

“must never be employed domestically so long as the civilian

institutions of the law remain operable was reiterated by Lord

Chief Justice Hale, History of the Common Law 39-40 (2d ed.

1716), and reconfirmed by enactment of the 1689 Bill of

Rights, 1 W. & Mary, sess. 2, c. 2 (1689).

When England was beset with scattered riots and disturbances

in protest of the Hanoverian succession in 1714, Parliament

enacted a new riot act. While the new act was designed to repair

various defects which the developments of three centuries had

created in the old 1411 law, it made no change in the due

process tradition that riots were to be suppressed only by

civilian force. Just like under the 1411 statute, under the 1714

statute riots were to be suppressed by the posse comitatus under

the control of the ordinary local civilian officers, and there was

no authority for military intervention regardless how aggravated

the circumstances might be. 1 Geo. 1, stat. 2, c. 5 (1714).

William Blackstone, writing on the eve of American indepen-

dence, repeated the established due process principle, in

a

6

1 Blackstone, Commentaries On the Laws of England 400

(1765). Blackstone’s restatement served to punctuate the

colonists’ assertion of their heritage of due process. The colonial

charters had been drafted to reflect the recognition of the due

process rule against military force in civil disorders. These

charter provisions are analyzed in detail in Soldiers, Riots and

Revolution, supra, 57 lowa Law Review at 18-22. The explicit

provisions of the colonial charters, together with an acute

awareness of the due process tradition, explain why the colo-

nists were so incensed when General Gage repeatedly employed

military troops to suppress disorders in the colonies. The reason

why the tragedy at Boston on March 5, 1770, became known

as the Boston Massacre and served as the catalyst for revolution

was not that the unruly mob of Bostonians were innocent of

any wrongdoing. The reason, rather, was that the employment

of military troops against even a riotous assembly found no

warrant in the Massachusetts Charter and was a brazen affront

to the colonists’ right to be treated in accordance with due |

process of law.

The American patriots had specifically in mind the Boston

Massacre and other instances of military force used in deroga-

tion of the due process principle, when they charged in their

Declaration of Independence and other acts of their Continental

Congress that the King had “affected to render the Military inde-

pendent of and superior to the Civil Power,” and had contrived

to exempt from trial and punishment British troops accused of

“murdering” disorderly colonists under color of military

authority. See Soldiers, Riots and Revolution, supra, 57 lowa

Law Review at 26-28. When they undertook to draft their

revolutionary state constitutions, these patriots included nv-

merous provisions deliberately designed to preclude such hated

domestic applications of military power. These provisions are

analyzed in Soldiers, Riots and Revolution, supra, 57 lowa

Law Review at 28-31.

If the law had developed no further, it would be necessary

to conclude today that units of the military forces can never

be employed to control or suppress civil disorders. That, how-

ever, is not the case. The nuance of doctrine that is essential

to understanding the modern due process requirements for

7

the use of military troops in civil disorders Originated with

Lord Chief Justice Mansfield in-the year 1780.

The Lord Gordon Riots in London in 1780 lasted several

days, and worked a great deal of destruction before they were

finally suppressed when the King sent in military troops. When

the mayor of London was afterwards tried for his failure to

subdue the riot sooner, his defense was that no civilian force

sufficient for the task was at hand, and that to have utilized

soldiers would have been contrary to law and would have sub-

jected him to criminal liability if the soldiers “should harm

anyone. Rex v. Kennett, 5 Car. & P. 282, 291-92, 172 Eng.

Rep. 976, 981-82 (1781) (argument of Mr. Erskine for defen-

dant). This defense, however, proved inadequate, because the

judge at the trial was Lord Mansfield; and Mansfield instructed

the jury in accordance with the novel doctrine which he had

articulated in Parliament only days after the riots—a doctrine —

which Erskine in his argument declared had left the Lords in

Parliament “planet-struck” when they heard the Chief Justice

first propound it. ;

Mansfield had offered his doctrine as a reply to those Lords

who protested that the King’s use of soldiers to subdue the

riots was a violation of the historic due process principle that

military force may never be used to suppress civil disorder.

Mansfield’s speech to Parliament is reported in 21 Parliamen-

tary History of England 688-98; (W. Cobbett ed. 1814); major

excerpts from it are reprinted in 3 Campbell, The Lives of the

Chief Justices of England 421-31 (1831). Mansfield acknowl-

edged that riots could be suppressed only by civilian officers

and the posse comitatus, all under the rules of civilian law, and

could never be suppressed by military force. It will be remem-

bered, however, that since the earliest period the same jurata —

ad arma that constituted the militia also constituted the legally

and institutionally distinct civilian posse. Seizing this point,

Mansfield argued that the same persons who were members of

the army were also members of the posse; and he reasoned that,

regardless whether they happened to wear army uniforms, they:

could be called upon to Suppress a riot “‘not as soldiers, but as

citizens,”

8

The persons who assisted in the suppression of these

tumults are to be considered mere private individuals, act-

ing as duty required. My Lords, we have not been living

under martial law, but under that law which it has long

been my sacred function to administer. For any violation

of that law, the offenders are amenable to our ordinary

courts of justice, and may be tried before a jury of their

countrymen. Supposing a soldier, or any other military

person, who acted in the course of the late riots, had ex-

ceeded the powers with which he was invested, I have not

a single doubt that he may be punished, not by a court-

martial, but upon an indictment to be found by the grand

inquest of the City of London or the County of Middlesex,

and disposed of before the ermined judges sitting in Justice

Hall at the Old Bailey.

. . . The King’s extraordinary prerogative to proclaim

martial law (whatever that may be) is clearly out of the

question. His Majesty, and those who have advised him (I

repeat it), have acted in strict conformity to the common

law. The military have been called in—and very wisely

called in—not as soldiers, but as citizens. No matter

whether their coats be red or brown, they were employed,

not to subvert, but to preserve, the laws and constitution

which we all prize so highly.

21 The Parliamentary History of England 688-98 (W. Corbett

ed. 1814) (emphasis in original).

This Mansfield doctrine promptly became the law in England.

It was the rule applied by Lord Mansfield himself in the trial

of Mayor Kennett of London in Rex v. Kennett, supra, and it

was applied again by Lord Chief Justice Tindal in charging the

Bristol grand jury after the Bristol riots of 1831. Tindal told

the grand jury that the role of the military in a riot situation

was different from that in a war; that on riot duty the local

civil officer (e.g., the mayor or sheriff or magistrate) was in

command, and the governing rules of law and the standards of

culpability for acts must be the same for the soldiers as they

ESE — —— <_< 7

9

would be for civilians engaged in suppressing a riot. Rex y.

Pinney, 5 Car. & P. 254, 263 n. (b), 172 Eng. Rep. 962, 697 n.

(b) (1832).

More significant than any later developments in England,

however, is the fact that the Mansfield doctrine was adopted

as the foundation of federal constitutional and statutory pro-

visions in the United States. The Constitution contains provi-

sions which, if read in ignorance of the Mansfield doctrine, seem

to contemplate the use of military troops as a military force

in civil disorders. U.S. Const., art. I, §8, cl. 15; Art. IV, §4.

If that were the true meaning of these constitutional provisions,

re-purchased by bloodshed only a decade before could be so

casually surrendered. But the error of that construction

becomes compellingly clear when one examines carefully the

language that was used by the framers, the origins of that

language in the Convention, the discussions that took place

during the period of its ratification, the deliberations which led

detail in Soldiers, Riots & Revolution, supra, 57 lowa Law

Review at 35-49. What they demonstrate convincingly is that

the Constitutional Convention and the first Congresses were

utilize that doctrine.

Their experience since 1776 had indeed taught these states-

_ men the need for an effective domestic peace-keeping force;

and since the laymen’s posse was a clumsy and ill-organized

body, but professional civilian police forces were still unknown,

the idea of utilizing Organized and disciplined militia for) this

purpose held obvious appeal. Under the Mansfield doctrine

they could make use of this body as a civilian force under

civilian law and local civilian command without violence to

their newly reclaimed due process right against domestic use of

military force. Read candidly and with care, the Constitution

—

10

and original federal statutes provide in accordance with the

historic rule of due process that military troops may be used

domestically as soldiers only when civilian law and government

have ceased to be capable of functioning—in terms of the

common law criterion, when the courts are closed.’ Otherwise,

in civil disorder or riot however unlawful or extreme, military

troops, whether individually or in units, and whether uniformed

ble for their acts exactly as civilian personnel would be.

See Soldiers, Riots and Revolution, supra, 57 lowa Law Review

at 42-49.

essentially civilians, not soldiers, and to be subject

local civil officials and governed by the rules of

civilian law. They were in fact conceived of as members of the

civilian posse. See United States v. Stewart, 27 F. Cas. 1339,

1342-43 (Crim. Ct. D.C. 1857); Ela v. Smith, 71 Mass. (5 Gray)

121, 142, 66 Am. Dec. 356, 366 (Sup. Jud. Ct. Norfolk Co.,

1855). Soldiers were held liable for official acts they com-

mitted against civilians in violation of civilian laws, even though

acted under military orders. Wise v. Withers, 7 US. (3 Cr.)

330, 337 (1806); Hyde v. Melvin, 11 Johns. 424 (N.Y. 1914);

McConnell v. Hampton, 12 Johns. 203, 204-07 (N.Y. 1815);

Smith v. Shaw, 12 Johns. 222, 231 (N.Y. 1815). The Supreme

Court of Louisiana branded as “preposterous” the notion that

a military commander could exercise any authority whatsoever

:

1. The common law criterion has been adopted in Ameri-

can law; see, e.g., Sterling v. Constantin, 287 U.S. 378 (1932).

Because in modern times judges do not ride off to war with

their King, and may exercise judicial powers even outside their

courtroom, a criterion less mechanical and more considerate of

the policy of the common law rule would be whether civilian

officials and institutions (including military personnel employed

as a civilian force) are incapable of restoring order.

11

in derogation of the civilian law and its local officials. Johnson

y. Duncan, 3 Martin 530, 6 Am. Dec. 675 (La. 1815). The

Attorney General of the United States, explaining the practice

of 1854, made specific reference to Lord Mansfield’s doctrine.

6 Op. Att’y Gen. 466 (1854).

Even in Ohio this fundamental rule of due process as adapted

through the Mansfield doctrine was recognized and applied by

the courts. An Ohio court said in 1897 that a National Guard

colonel and his regiment called out to help enforce the laws

could

act as an armed police only, subject to the absolute and

exclusive’ control and direction of the magistrates and

other civil officers designated in the statutes, as to the

specific duty or service which they are to perform; nor

can the sheriff or magistrate delegate his authority to the

military force which he summons to his aid, or vest in the

military authorities any discretionary power, to take any

step or do any act to prevent or suppress a mob or riot.

State v. Coit, 8 Ohio Dec. 62, 63 (Pickaway, G.P. 1897).

It may seem to have been ill-advised for the founding fathers

to invest such reliance upon the nuance of doctrine invented

by Lord Chief Justice Mansfield. Ever since the Reconstruction

Radicals succumbed to the apparent expediency of using mili-

tary force to impose their high-minded designs upon the South

after peace had been restored, one excuse after another has

been found by legislators and executives, both state and federal,

to justify recourse to uniquely military force as an instrument

of domestic policy. This historical development in legislation

and practice since the Civil War is traced in considerable detail

in Soldiers, Riots and Revolution, supra, 57 lowa Law Review

at 55-64, and in The Law Revision Center, A Comprehensive

Study of the Use of Military Troops in Civil Disorders, 43 Univ.

of Colo. Law Review 399, 408-16 (1972). The subtlety of the

Mansfield doctrine and the deceptive simplicity of statutory

and constitutional provisions authorizing the use of troops

have given this unconstitutional practice a color of legitimacy;

and in the nature of events, it has been difficult and uncommon

for judicial challenges of the practice to be made. But if the

—

12

Mansfield doctrine is a subtle or easily neglected rule, it is stil]

the only alternative to being impaled upon either horn of an

unhappy dilemma; for, without the Mansfield doctrine, one

must either conclude that military troops may never in any

capacity be used in civil disorders, (which was the pre-Mansfield

due process rule), or else renig on seven centuries of history,

the hardest-fought struggles of our English and colonial ancestry,

and our unique constitutional safeguard against oppressive

military regimes.

Except in a handful of ill-conceived decisions that ignored

the whole course of due process history on this matter, the

American courts which have considered issues arising from the

domestic use of military troops have held in accordance with

the due process rule that demands subordination to civilian

» law and officials. The cases are too numerous to list here. Those

holding contra the due process rule are cited in Soldiers, Riots

and Revolution, supra, at 65 n. 318. Examples of the far more

numerous cases holding in accord with the due process rule

(including more recent cases from jurisdictions which had

earlier held contra) are cited and discussed in Soldiers, Riots

and Revolution, supra, at 67 n. 319.

The most flaunted of the decisions in derogation of the due

process rule is that in Moyer v. Peabody, 212 U.S. 178 (1909).

But Moyer, while never explicitly overruled, has been so dis-

tinguished and reinterpreted by subsequent Supreme Court

decisions as to have lost every bit of its force as precedent.

In Moyer the Court held that in a state of “insurrection”

military forces could lawfully be employed as soldiers. If by

“insurrection” were meant a situation where the civilian in-

stitutions and officials had been rendered incapable of function-

ing, this would have been consistent with the due process rule.

However, in Moyer the Court per Justice Holmes held that a

governor’s finding that an insurrection existed was conclusive

and could not be questioned in court. That meant that a

governor could declare a riot or any lesser disorder or even

(as on the facts in Moyer) an anticipated future disorder to

constitute an insurrection, and escape all judicial review of his

subversion of the due process rule. Holmes himself soon drew

POOR COPY

BLEED THROUGH

13

back from this untenable proposition, observing in Chastleton

y. Sinclair, 264 U.S. 543, at 547 (1924), that a court cannot

ignore the obvious incorrectness of a declaration by another

branch when the validity of what is done depends upon the

truth of what is declared. And in Sterling v. Constantin, 287

U.S. 378 (1932), notwithstanding Moyer the Court reviewed

the facts which a governor had proclaimed to constitute an

“insurrection,” held they did not, and found the governor’s

military acts in iaisabaas of civilian laws and officials to be

unlawful.

Where an “insurrection” existed, the Court in Moyer had

held, military troops could lawfully imprison or even shoot

citizens “without sufficient reason.” 212 U.S. at 84. But in

Sterling v. Constantin the Court took a different view of the

facts of Moyer, finding “sufficient reason” in the fact that

“In [Moyer] it appeared that the action of the Governor had

direct relation to the subduing of the insurrection . . .”,? and

' cautioned that “the general language of the [Moyer] ‘opinion

must be taken in connection with the point actually decided.”

287 U.S. at 400. The point which Sterling regarded Moyer as

having decided was not that soldiers could act or be authorized

to act “without sufficient reason,”’ but only that they could

act in ways that on reasonable reflection could be judged to

be directly related to their mission; and even this was a

standard to be applied in genuine “insurrection,” not in mere

civil disorders or riots.

So while Sterling managed to avoid overruling Moyer in

terms, it did completely destroy Moyer as a precedent for the

use Of military troops without subordination to civilian law

and local officials in civil disorders, in derogation of the due

process rule. Further evidence of the determination of the

Supreme Court in Sterling to reaffirm the due process require-

ments is the Court’s quotation and endorsement of some of

2. Thus the Supreme Court in Sterling took the same view

of the facts in Moyer that the Circuit Court in Moyer had taken,

finding contrary to the allegations in the complaint that the

arrest and detention of Moyer had been reasonable. See Moyer

v. Peabody, 148 Fed. 870 (C.C.D. Colo. 1906).

14

the eloquent language of the opinion in Ex parte Milligan, 7\

U.S. (4 Wall.) 2 (1866), which vigorously articulated the due

process rule. See 287 U.S. at 402-03.

In a series of recent cases, this Court has restricted the

“judicial” power of the military over civilians. Relford »,

Commandant, 401 U.S. 355 (1971); O'Callahan vy. Parker, 395

U.S. 258 (1969); McElroy v. Guagliardo, 361 U.S. 281 (1960);

Grisham yv. Hagan, 361 U.S. 278 (1960); Kinsella v. Singleton,

361 U.S. 234 (1960); Reid v. Covert, 354 U.S. 1 (1957); Toth

v. Quarles, 350 U.S. 11 (1955). The principle of civilian due

process which has found expression in these recent cases is

exactly the same historic anti-militaristic principle that forbids

the “executive” use of military troops in civil disorders in any

way other than as a subordinate civilian force, governed by and

accountable under civilian law, and under the complete control

of the same local civilian officials who would be responsible

if military troops had not been used.

Independently of their status as reserve components of the

armed forces of the United States, National Guard units, which

are the organized historic militia of the states, constitute an

— body of manpower that may be utilized in compliance

with state law for a wide variety of purposes: from a state

military defense force against sudden invasion or genuine insur-

rection, at one extreme, to a manpower substitute for striking

garbage haulers, at the other extreme. National Guard troops

may be used to assist in case of natural disaster, to direct traffic

after a football game, to search the woods for lost campers or

downed fliers, to exterminate grasshoppers or other pests, or to

suppress riots or control other civil disorders. This organized

body of manpower constitutes a valuable resource of a state for

many purposes, and: the federal constitution places absolutely

no restraint upon the discretion of state executives, pursuant to

valid state law, to employ this organized manpower whenever

they consider it desirable. Consequently, the Court of Appeals

in this case was correct in rejecting Respondents’ request for

an injunction against the governor’s “premature”’ calling out of

the National Guard, although the reasons and citations given

by the Court of Appeals were not apropos.

POOR COPY

BLEED THROUGH

15

What due process requires is not that a state refrain from

making use of this convenient body of manpower, but only

that the state employ it strictly as a civilian force—i.e., subject

to the same law with respect to rights, duties, and liabilities

that governs civilians in the same circumstances, subject to

control in every aspect of their activity by the ordinary local

civilian officials, and exempt from the rules, sanctions, and

tribunals of military law. Under due process, the National

Guard may be used domestically as a military force only under

the extraordinarily rare circumstances of foreign invasion, or

genuine insurrection which renders inoperable the institutions

and offices of the civilian law. The most aggravated riot falls

considerably short of this extreme. Hence the courts, while

never restraining a state from employing the organized man-

power of the National Guard, have time and time again held

that such troops could not be employed as a military force,

superseding ordinary civilian law, displacing local civilian

officials, or operating independently of the legal rights, duties,

and liabilities which govern civilians. E.g., Sterling v. Constantin,

287 U.S. 378 (1932); Wilson & Co. v. Freeman, 179 F. Supp.

520 (D. Minn. 1959); Constantin v. Smith, 57 F.2d 227, 236

(E.D. Tex. 1932); United States ex rel Palmer v. Adams, 26

F.2d 141, 144-45 (D. Colo. 1928); State ex rel. O’Connor v.

District Court, 219 lowa 1165, 260 N.W. 73, 99 A.L.R. 967

(1935); Middleton v. Denhardt, 261 Ky. 34, 87 S.W.2d 139

(1935); Bishop v. Vandercook, 228 Mich. 299, 200 N.W. 278

(1924); Seaney v. State, 188 Miss. 367, 194 So. 913 (1940);

Ex parte McDonald, 49 Mont. 454, 143 Pac. 947 (1914);

Russell Petroleum Co. v. Walker, 162 Okla. 216, 19 P.2d 582

1933). These and numerous additional cases are discussed in

one —" and Revolution, supra, 57 lowa Law Review at

67-70 n. 319.

Military troops operating without subordination to civilian

law and local civilian authorities have always been viewed by

Americans as unacceptable and abhorrent in civil disorder situa-

tions. For this reason, indeed, it has been repeatedly observed

that their use in this fashion is counterproductive. This was

documented with regard to the National Guard troops em-

ployed, under Ohio’s laws here being challenged, at Kent State

University in May, 1970. Report of the President's Commission

—

on Campus Unrest 250-74, 288 (1970). The same phenomenon

was observed more generally by the National Advisory Com-

mission on Civil Disorders, and noted in its Report at 502-03

(Bantam Books ed. 1968). But it was not a new observation.

Troops were used in the same unacceptable fashion during the

Reconstruction era, and General Halleck, in his 1870 report on

the domestic use of troops during the era, observed that

16

the use of troops in executing judicial process and enforc-

ing the revenue and other civil laws seemed to increase

rather than diminish the apparent necessity of resorting

to such force in civil matters. The ill-disposed become

more and more exasperated at being coerced by a force

which they think has been unconstitutionally employed

against them... .

7 Cong. Rec. 3894 (1878) (quoted in remarks of Mr. Hewitt).

Indeed, when the first Congress debated the utilization of

militiamen in civil disorders, congressmen who failed to perceive

the nuance of the Mansfield doctrine responded that using

military troops to enforce the laws “in a free state, where the

people have been taught to look upon the right of refusing sub-

mission to unconstitutional acts, may excite insurrections much

easier than quell them.” 3 Annals of Cong. 576 (1792) (remarks

of Mr. Page). See also id. at 579 (remarks of Mr. Kittera). Con-

templating their use as a military force and recalling such

incidents as the Boston Massacre, Congressman Page continued:

“It should be remembered that the doctrine now contended

for [allowing militia to be used to control disorders] is that

very doctrine which dismembered the British Empire. Sir, it

would have been happy for Britain if this doctrine had never

been taught in that Kingdom.” /d. at 576.

Some lessons are not easily learned, or are easily forgotten.

Military troops were used to quell labor disturbances earlier in

this century, giving rise to a number of the cases cited above

as reaffirming the rule that they could only be used as civilians.

More recently, however, the trend of legislation and practice

in Ohio and elsewhere has been toward the seeming expedient

of utilizing troops as a supervening military force. In this

fashion their use has become alarmingly common during the

OR COPY

BLEED THROUGH dhe

17

past five years. The use of military troops in civil disorders had

been quite uncommon until the urban riots of 1967. See

Report of the National Advisory Commission on Civil Disorders

at 497 (Bantam Books ed. 1968). But between January, 1968,

and May, 1970, they were employed in civil disorders in the

several states on no less than 324 occasions. Testimony of

Maj. Gen. Winston P. Wilson, Chief of the National Guard

Bureau, Before the President’s Commission on Campus Unrest,

reported at 116 Cong. Rec. 27,339 (1970). No state has made

more frequent use of troops than Ohio. The National Advisory

Commission on Civil Disorders found in 1968 that both

National Guard and civilian officials were unsure of their rela-

tive command responsibilities when military troops were used.

Report, supra, at 518.

When Americans respond in outrage to the presence of men

and machines of war on a college campus or a ghetto street,

no less than when they lament the military suppression of a

freedom movement in Hungary or a demonstration in Greece,

they are expressing a fundamental antipathy to prerogative

force that has been a proud and prominent part of our culture

since the time of Magna Carta. What is abhorrent is not the

color of the uniforms, nor the fact that the troops may be

armed, nor even necessarily the fact that their equipment may

differ from that which civilian police ordinarily employ. What

makes the use of military troops in civil disorders—in the

manner in which Ohio and. other states have in recent years

come to employ them—utterly abhorrent to the American con-

science is the fact that they supersede ordinary law, operate as

an occupying force under military law, give only such deference

as they might choose to local civilian Officials, and claim a

shield of immunity and hence irresponsibility for their actions

that no civilian officer could pretend to wear.

18

RESPONDENTS, ‘ON THEIR COMPLAINT IN THE DISTRICT

COURT, ARE ENTITLED TO A DECLARATORY JUDG-

MENT THAT IN CERTAIN FUNDAMENTAL RESPECTS

THE LAWS, ORDERS, RULES AND PRACTICES UNDER

WHICH OHIO HAS USED AND STANDS READY TO AGAIN

USE ITS MILITARY TROOPS IN CIVIL DISORDERS ARE

INVALID, BECAUSE IN CONFLICT WITH THE REQUIRE-

MENTS OF DUE PROCESS OF LAW.

Ohio employs her National Guard troops as soldiers in civil

disorders, in defiance of the requirements of due process of

law. They were used thus unconstitutionally under former

Governor Rhodes, the original defendant in this action, at Kent

State University in May, 1970, with tragic consequences too

notorious to require elaboration here; and Governor Gilligan

is allegedly ready to thus unconstitutionally employ them again

whenever he feels that circumstances demand.

The most prominent allegations of the complaint assert that

Ohio National Guardsmen are inadequately and improperly

trained and are inappropriately equipped for civil disorder duty.

The dissent in the Court of Appeals concluded, and Petitioner

State of Ohio asks this Court to rule, that those allegations

pose a non-justiciable issue. But the complaint also sufficiently

alleges facts raising other issues under the due process principle

examined in Part I of this brief, and these are questionably

justiciable and repeatedly yadjudicated issues. The question

whether it would be appropriate for a federal court to under-

take the kind of detailed oversight of training and weaponry

that was specifically sought by the prayer of the complaint, is

a question that is dealt with briefly in Part III of this brief.

Regardless of that, however, there are issues that are raised and

essential relief that can be given under the complaint, without

any of the difficulties that caused Judge Celebrezze to dissent

below.

COPY

BLEED THROUGH —

19

The portions of the complaint which raise the unquestion-

ably justiciable due process issues are the following (excerpts

from the complaint as quoted in the Court of Appeals opinion):

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.

Because of the past actions of defendant’s agents and

defendants’ continued excessive 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

the same rights [as were lost at Kent State].

[Those actions] 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 the 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 Constitution. 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 participate in lawful activities they

will be assaulted, killed, injured or unlawfully detained by

Ohio National Guard troops.

In addition, the complaint challenged the validity of the rule

of immunity under which the Ohio National Guard operates

in civil disorders. The Court of Appeals was undoubtedly

correct in its holding that the particular statute to which the

20

complaint made specific reference (Ohio Rev. Code § 2923.55)~—

if it is construed as the Court of Appeals construed it—meets

no constitutional impediment; but there is an additional

immunity statute in Ohio which cannot pass constitutional

muster. Ohio Rev. Code § 5923-37, enacted in 1967, creates a

special immunity specifically for National Guardsmen, much

more generous than any immunity that could be validly ex-

tended to civilians. It purports to immunize guardsmen in civil

disorders even for acts that can find no support or justification

in reason, leaving them: laible only. for wilful end wanton

misconduct.

Fairly construed, these allegations in the complaint assert

that Ohio employs and threatens to employ her National Guard

in civil disorders as a supervening military force, displacing

ordinary local civilian authority, unrestrained by the rules of

civilian law that govern civilian authority, and immunized from

liability for any but wilfully or wantonly unlawful acts. If

these allegations are true, it means that Ohio uses and threatens

to use her National Guard in civil disorders in their capacity

as soldiers, in direct defiance of the requirements of due process

of law.

Ohio herself at an earlier day acknowledged and respected

the requirements of due process in this regard. See State y.

Coit, supra. But this complaint alleges (and Ohio’s current

statutes and orders bear witness) that Ohio has departed from

the due process requirement and now employs military force

in violation of the Constitution’s command. This complaint

surely states a claim upon which, at the very least, declaratory

relief can be granted.

At the trial which must be allowed on this complaint, there

may emerge several other specific particulars in which Ohio’s

laws, orders, rules and practices concerning military troops in

civil disorders are inconsistent with the due process principle

examined in Part I. Some major points, however, seem

apparent already. The special National Guard immunity statute

for civil disorders, Ohio Rev. Code § 5923.37 is certainly void

on its face. See The Law Revision Center, A Comprehensive

Study of the Use of Military Troops in Civil Disorders, 43

BLEED THROUGH nei

21

-

Colorado Law Review 399, at 414-16 (1972); see also Engdahl,

Immunity and Accountability for Positive Governmental

Wrongs, 44 Colorado Law Review 1 (1972). Furthermore,

insofar as Ohio Rev. Code §§ 5923.24 and 5923.26 apply to

civil disorders, as distinguished from genuine insurrections, and

purport to subject guardsmen to the discipline of military law

and courts martial for their actions in such disorders, they must

be held to be void as against due process. And perhaps most

important, Ohio Rev. Code $5923.23 must be held void as

falling short of the requirements of due process, by purporting

to authorize National Guard officers to rely on their own

discretion as to “mode and means of execution,” allowing

civil authorities_only to “designate in general terms the par-

ticular objects to be accomplished.” When the Ohio court in

State v. Coit, supra, ruled that this degree of independent

discretion in the military commander was impermissible, it was

not merely applying an old-fashioned rule of practice that

could be changed by the legislature by enacting this 1953

statute. Rather, it was applying the time-honored principle of

due process which our revolutionary forebears and also Lord

Chief Justice Mansfield, Lord Chief Justice Hale, Lord Chief

Justice Coke, the Parliaments of 1627 and 1327, and even the

Barons at Runnymeade, had fought some of their greatest

struggles to nurture and preserve. Ohio sought to change this

ancient rule in favor of an easier rule of military discretion; but

due process forbids it. As the facts that were found by the

President’s Commission on Campus Unrest with respect to the

Kent State affair in Ohio in 1970 attest, under this statute

Ohio military officials give local officials only such deference

as they like, and proceed to take over and exercise dominant

control as an independent force, even in disregard of the wishes

of civilian officials. See Report of the President’s Commission

on Campus Unrest at 245, 250, 256, 258, 259-64 (1970).

Unless this Court is prepared to ignore the lesson of The

Case of Ship Money, The King vy. Hampden, supra, and close

its eyes to Ohio’s defiance of the anti-militaristic principles of

due process, it must hold that the complaint in this case

entitles Respondents at least to declaratory relief.

22

ill.

INJUNCTIVE RELIEF AGAINST THE FUTURE USE OF

THE OHIO NATIONAL GUARD IN CIVIL DISORDERS

UNTIL AFTER THE EFFECT OF OHIO’S UNCONSTITU-

TIONAL LAWS, ORDERS, RULES AND PRACTICES HAS

BEEN EFFECTIVELY COUNTERACTED BY NEW AND

VALID LAWS, ORDERS, RULES AND PRACTICES MAY

BE APPROPRIATE. IN ADDITION, SOME OF THE SPECIFIC

ORDERS SOUGHT IN THE PRAYER OF RESPONDENT’S

COMPLAINT MAY BE APPROPRIATE.

The declaratory relief discussed in Part II of this brief could

be granted by the District Court without any of the difficulties

remarked upon by Judge Celebrezze in his dissent in the Court

of Appeals. Judge Celebrezze found Respondents’ cause of

action to raise non-justiciable political questions “to the extent

that it requires judicial intervention in National Guard training

and weaponry.” Morgan v. Rhodes, No. 71-1335, at slip sheet

opinion p. 21 (6th Cir., Feb. 15, 1972) (Celebrezze, J., con-

curring in part and dissenting in part). And he observed further

that “Any. such injunctive relief apart from the training and

weaponry of the Guard, would seemingly avoid the political

question problem discussed above.” Jd. at 23, Judge Celebrezze

went on to conclude that, as he interpreted the grounds of

the complaint, beyond the challenge to training and weaponry

there was only a challenge to the propriety of National Guard

acts in certain circumstances, which acts would not be cate

gorically impermissible in any and all civil disorder circum-

stances. On this too-narrow interpretation of the complaint,

Judge Celebrezze concluded that the issue was non-justiciable;

but he added that, “[w]ere any of the conduct challenged in

the present complaint the type which could never be justified

in the quelling of civil disorders, I am certain that injunctive

relief should similarly be available to prevent its recurrence.”

Id. at 25.

The problem was that Judge Celebrezze took too narrow

a view of the complaint. As explained in Part II of this brief,

fairly construed this complaint puts in issue the validity under

due process of several statutes, standing orders, rules, and

BLEED THROUGH

23

continuing practices of the Ohio National Guard for civil dis-

orders, on their face. The challenge is not merely to certain

acts in certain circumstances, but to statutes, orders, and

practices in derogation of civilian law and officials that are un-

constitutional on their face in any circumstances of civil

disorder. The specific circumstances and events of May, 1970,

detailed in the complaint, simply constitute concrete illustra-

tions of the vices which inhere in the objectionable laws, orders,

rules and practices on their face.

Declaratory relief against the objectionable laws, orders, rules

and practices is clearly warranted and confronts no justiciability

barriers: that is sufficiently demonstrated in Parts I and II of

this brief. In addition, however, appropriate injunctive relief

against those same laws, orders, rules and practices, or against

any use of the Ohio National Guard in civil disorders so long

as those laws, orders, rules and practices and their pernicious

effects remain, would be appropriate. The task of fashioning

specific terms of an injunction is perhaps best left to the

District Court after trial; but it seems clear that such relief may

even go so far as to forbid use of the Ohio National Guard in

civil disorders until such time as Ohio has revised her statutes,

orders, rules, and plans for National Guard use in civil disorders

sufficiently to guarantee, to the satisfaction of the court, that

Ohio’s troops will be employed in such disorders only as a

strictly civilian force, completely subordinate in every respect

to local civilian officials, governed by the same rules of law

that govern civilian personnel in civil disorders, and liable both

civilly and criminally for any wrongdoing to the same extent

as any civilian in the same circumstances.

There can be no doubt of the propriety of such relief.

“Traditionally, equity has been characterized by a practical

flexibility in shaping its remedies and by a facility for adjust-

ing and reconciling public and private needs.”” Brown v. Board

of Education, 349 U.S. 294, 300 (1955). “The aim of equity

is to adapt judicial power to the needs of the situation. Thus

relief in matters of public, rather than private, interests may

be quite different from that ordinarily granted.” Alabama v.

United States, 304 F.2d 583, 591 (Sth Cir. 1962), aff'd per

curiam, 371 U.S. 37 (1962). The relief which plaintiffs demand

24

is exactly the sort of relief that has been routinely awarded

and consistently approved in legislative reapportionment and

school desegregation cases, and the great breadth and flexibility

of remedies that federal courts have employed in those fields

is well known. See, e.g., Swann v. Charlotte-Mecklenburg Board

of Education, 402 U.S. 1 (1971); United States v. Jefferson

County Board of Education, 380 F.2d 385 (Sth Cir. en banc),

cert. denied, 389 U.S. 840 (1967). State officials have been

directed to draft acceptable regulatory provisions while the

court retains jurisdiction for purposes of supervision. E.g.,

Chambers v. Hendersonville City Board of Education, 364 F.2d

189 (4th Cir. 1966). Where that has not been sufficient, the

federal courts have stepped in to draft and implement rules of

their own making, binding upon the state and its officers—

even in reapportionment cases where the effect of this federal

equity interposition may be to dramatically alter the politica]

organization of a state. E.g., Reynolds v. State Election Board,

233 F. Supp. 323 (W.D. Okla 1964). From the very outset of

the school desegregation problem, the United States Supreme

Court has maintained that federal courts under their equity

powers can see to the “revision of local laws and regulations

which may be necessary” to accomplish desegregation; federal

courts have full power “to take such proceedings and order

such orders and decrees . . . as are necessary and proper” to

accomplish compliance with the Constitution’s command.

Brown v. Board of Education, 349 US. 294, 301 (1955).

Indeed, the Supreme Court has authorized even greater intru-

sions than granting relief to the plaintiffs in this case demands,

going so far as to approve a court’s order compelling officials

to levy state taxes to raise funds to open and operate de

segregated public schools. Griffin v. School Board of Prince

Edward County, 377 U.S. 218, 233-34 (1964).

Finally, it may not be at all inappropriate for the District

Court to give even the exact relief specifically demanded in the

complaint. Injunctions against unconstitutional police conduct

have sometimes been issued. E.g., Lankford v. Gelston, 364

F.2d 197 (4th Cir. 1966). See also Wolin v. Port of N.Y. Auth.,

392 F.2d 83 (2d Cir.), cert. denied, 393 U.S. 940 (1968);

NAACP v. Thompson, 357 F.2d 831 (Sth Cir. 1966), cert.

denied, 395 U.S. 820 (1967); Houser v. Hill, 278 F. Supp. 920

BLEED THROUGH ‘ ="

—

25

(M.D. Ala. 1968); Cottonreader v. Johnson, 252 F. Supp. 492

(M.D. Ala. 1966); Williams v. Wallace, 249 F. Supp. 100 (M.D.

Ala. 1965); Local 309, United Furniture Workers v. Gates,

75 F. Supp. 620 (N.D. Ind. 1948); Refoule v. Ellis, 74 F. Supp.

336 (N.D. Ga. 1947). See Note, The Federal Injunction as a

Remedy for Unconstitutional Police Conduct, 78 Yale L.J. 143

(1968). Insofar as they are utilized in civil disorders, National

Guard troops are no different in the eyes of the law, under due

process, than civilian police personnel.

There is no “textually demonstrable commitment”’ to other

branches to interfere with such relief. It is true that Article I,

Section 8 of the Constitution gives Congress power to provide

for organizing, arming, and disciplining the militia; but that

has reference particularly to their equipment and training for

use as a military force. The Constitution does not care whether

or not states use militia manpower to control civil disorders,

except that it requires that if states choose to do so they do so

in compliance with due process of law. If a state wishes to use

its militia for this domestic purpose, Article I, Section 8 cannot

be read as giving Congress the last word in their training or

equipment for such tasks. Furthermore, Congress’ actions under

that clause, like under every one of Congress’ powers, is sub-

ject to the requirements of due process of law. The militia

clause is unlike Article IV, Section 4, for example, which vests

in the political branches the power to define the meaning of

“republican government”; for Congress has not been granted

the power to define the meaning of due process.

Accordingly, it may not be appropriate for the District

Court to review the training of Ohio guardsmen to insure that

they are effectively instructed of their rights and duties and

liabilities as civilians in their role in controlling civil disorders.

The same is true with respect to the equipment they are in-

structed to use on such duty. The court might find, for

example, that high-powered, rapid-fire automatic rifles designed

to deliver copper-clad bullets with deadly accuracy at a range

over three miles are so ill-suited to the needs of any conceivable

civil disorder that their use is incompatible with due process.

Whether or not the specific relief demanded with respect

to training and equipment is relief that can be judicially granted,

—

26

however, the other relief described in this brief as called for

by the allegations in the complaint can certainly be granted

without any problems of justiciability or any other impedi-

ments. Rule 54(c), Fed. Rules Civ. Pro. provides that “every

final judgment shall grant the relief to which the party in

whose favor it is rendered is entitled, even if the party has not

demanded such relief in his pleadings.”

CONCLUSION

Petitioner in this case has suggested to this Court that “The

power to prevent and suppress civil disorders is the most funda-

mental of powers.” Petition for Certiorari at 9. This is un-

questionably true; and in view of the frequent disorders that

have occurred in recent years, it is an extremely important

truth. But it is also true that the right to have civil disorders

prevented or suppressed by civilian force in compliance with

the requirements of due process, rather than by military force,

is the most fundamental of rights, guaranteed by all the great

documents of our liberty and redeemed by repeated struggles

since the dawn of the common law. In her abuse of this most

fundamental of powers, Ohio has ignored and destroyed this

most fundamental of rights. That is the intolerable situation,

a remedy for which is being sought in this case.

In his opinion in the Court of Appeals, Judge Celebrezze

took pains to point out that while he did not think a court

could give prospective relief he was satisfied that a court could

make “‘an after-the-fact review of National Guard conduct

which has allegedly deprived persons of their constitutional

rights.” Slip-sheet opinion at 24. “After-the-fact review” of

any single event, however, simply cannot effectively establish

sufficient respect for the due process principles that are here

at stake. More than a score of after-the-fact cases, discussed in

Part I of this brief and the sources there cited, have invoked

the historic principles here examined and applied them to

particular facts; and yet Ohio as well as other states continue

to enact and utilize statutes, orders, rules and practices all at

odds with the demands of due process.

27

Furthermore, the sorry record that has been made in the

efforts to vindicate these principles “‘after-the-fact” of the Kent

State tragedy of 1970 demonstrates the inadequacy of that

supposed remedy. Only days before he wrote his opinion in

this case, Judge Celebrezze sat. for arguments in Krause y.

Rhodes, Miller v. Rhodes, and Scheuer v. Rhodes (No. 71-

1622, 71-1623, and 71-1624, Sixth Circuit), actions under

42 US.C. $1983 (and other claims) for an after-the-fact

accounting of the Kent shootings. But as demonstrated by

Judge Celebrezze’s own compelling dissent from the court’s

affirmance of the dismissals on the pleadings of those cases,

on November 17, 1972, the hope of candid “‘after-the-fact”

review in such emotion-charged cases is illusory. The majority

in those cases closed its eyes to the precedents, holding that

the suits alleging unconstitutional acts by state officers were

barred by the Eleventh Amendment; contrived a novel rule of

absolute personal privilege for executive officials; ignored those

facts of which it could legitimately have taken judicial notice,

and on pretext of such notice assumed facts contradictory to

the allegations of the unanswered complaints; and even made

outrageous accusations of “dissembling” on the part of

plaintiffs’ lawyers, for alleging facts which the majority, despite

the lack of any trial, insisted were untrue.

Other efforts to secure an “after-the-fact” review of the

Kent shootings have been no more successful. In Krause vy.

Ohio, 31 Ohio St. 2d 132, N.E.2d __ (1752), the

Supreme Court of Ohio revived a long-discredited old notion

of equal protection, and ignored the law’s historic insistence

upon the necessity for effective redress in a state’s own courts

for alleged constitutional wrongs, in order to maintain its

sovereign immunity from suit on the Kent facts even though

Ohio had foreclosed every possible alternative mode of judicial

redress for those wrongs as well. Yet, on appeal, the United

States Supreme Court did not even perceive any substantial

federal question. Krause v. Ohio, No. 72-589 (Appeal dismissed,

Dec. 11, 1972).

When the Kent State affair was investigated by an Ohio

state grand jury, the specially appointed state prosecutors selec-

tively withheld from the grand jury essential evidence which

ee.

28

had been accumulated by the Federal Bureau of Investigation,

reviewed by the Department of Justice, and transmitted for the

state grand jury’s use, including the testimony of at least one

guardsman and other evidence indicating that the claim of self-

defense had been fabricated by guardsmen after the shooting.

The state grand jury’s report (the only official report by any

investigatory body that has failed to find the shootings un-

warranted and unjustified) was expunged by order of a federal

court, Hammond v. Brown, 323 F. Supp. 326 (N.D. Ohio, E.D.

1971), aff'd. 450 F.2d 480 (6th Cir. 1971); and charges against

twenty of the twenty-five persons (non-guardsmen) indicted

by the state grand jury were dropped by the state itself for

lack of evidence in December, 1971.

On representations from the Department of Justice that

prosecutorial actions would be diligently pursued, the President’s

Commission on Campus Unrest in order not to interfere with

such prosecutions chose not to utilize the power to grant

immunity and compel testimony, which had been given it by

congressional joint resolution, P.L. 91-334, 84 Stat. 429. See

Report of the President's Commission on Campus Unrest at

234 (1970); Testimony of Commissioner James F. Ahearn,

Hearings on Presidential Commissions, Senate Judiciary Com-

mittee Subcommittee on Administrative Practice and Procedure,

9ist Cong., Ist sess., at 201 (1971). Even without exercising

that power, however, the Commission found that the shootings

by Ohio National Guardsmen were “unnecessary , unwarranted,

and inexcusable.” Report, supra, at 289. When more than a

year passed without any federal prosecutorial action, the Chair-

man and several other members of that Commission publicly

criticized the delay. One member declared that “‘It is incon-

ceivable that the Department of Justice would refuse to convene

a federal grand jury in Ohio on the basis of the Commission’s

conclusions supplemented by evidence developed by the FBI

and the obvious miscarriages of justice occurring on the state

level.” Another member charged the administration with

callousness and deliberate deceit in its handling of the Kent

State matter. See Hearings on Presidential Commissions, supra,

at 200-02, 217-18, 222 (1971).

Efforts to persuade the Department of Justice to permit a

federal grand jury inquiry under 18 U.S.C. §§241 and 242,

. OOR PY

BLEED THROUGH a —

29

have been fruitless. The investigatory findings have been kept

secret. While public release of the apparently incriminating

evidence compiled by the Federal Bureau of Investigation may

be inappropriate, 5 U.S.C. §552(c) forbids withholding it from

Congress, except on a claim of executive privilege. No assertion

of executive privilege with respect to this material has been

made in compliance with the rules established by President

Nixon for the invocation of executive privilege; and without

compliance with these rules no valid claim of privilege can be

made. See Testimony of Mr. Rehnquist on Executive Privilege:

The Withholding of Information by the Executive, Hearing

before the Subcommittee on Separation of Powers, Senate

Judiciary Committee, at 440-41, 92nd Cong., Ist Sess. (1971).

Nevertheless the repeated requests of a United States Senate

Subcommittee for access to this material have been denied by

the Attorney General in violation of U.S.C. §552(c). See

Hearings on the Nominating of Ralph E. Erickson, Assistant

Attorney General, before Senate Judiciary Committee, at 3-13,

92nd Cong., 2d Sess. (1972); letters of request from Senator

Edward Kennedy on behalf of Senate Subcommittee on Ad-

ministrative Practice and Procedure, dated June 25, 1971,

August 26, 1971, October 28, 1971, February 9, 1972, and

August 17, 1972; replies dated October 22, 1971 and January 12,

1972, in the files of Senator Kennedy.

Moreover, the changes that were made in National Guard

training for civil disorders in response to the events of 1970

and the recommendations of the President’s Commission on

Campus Unrest, have been largely negated by more recently

implemented policies of the Army Chief of Staff. See the

Comptroller General's Report to the Congress, Training and

Equipping the Army National Guard for Maintaining Order

During Civil Disturbances. Report No. B-160779 of the Comp-

troller General (Sept. 8, 1972). Even prior to this recent

negation, the changes which had been made in National Guard

policy did not satisfy the requirements of due process docu-

mented in this brief.

These fruitless efforts are recounted here for the purpose of

underscoring the compelling necessity for giving appropriate

judicial relief in the present case. They demonstrate, all too

“ —

30

pathetically, that the conceivable alternatives to this kind of

judicial action as a means of effectively restoring the rule of

due process in National Guard control of civil disorders cannot

realistically be expected to succeed. If relief is not given in this

present proceeding, effective relief cannot be expected to be

found at all.

Choice more than destiny controls the fate of nations; and

history must inform that choice. When Charles I used military

prerogative to suppress riots in England, it led to the Petition

of Right; and when the common law judges eviscerated that

Petition’s guarantee by their decision in The Case of Ship

Money, The King v. Hampden, supra, it was only five years

until 1642, and barely a decade until 1648. When General Gage

used military force against dissident colonists, they made a

symbol of the Boston Massacre, which occurred exactly two

centuries before the tragedy at Kent State; and when King

George responded with toughening measures to bring the colo-

nists into line, revolution flared within six years.

There are elements of unrest still simmering in our country,

as volatile as any that were present in the colonies or in seven-

teenth century England. We must not allow rhetoric to displace

our reason; but rationalization that ignores human passion is

unreason. This case deals with the very same issue that has

catalyzed revolution before; and as Patrick Henry said in his

Speech on the Stamp Act to the Virginia Convention on

March 23, 1775: “I know of no way of judging the future but |

by the past.” |

Respectfully submitted,

David E. Engdahl

University of Colorado

School of Law

Boulder, Colorado 80302

(303) 443-2211, ext. 6911

Attorney for Amicus The Law

December 29, 1972 Revision Center