LEGAL ASPECTS OF CIVIL DISTURBANCE II
In this lesson you will learn: legal requirements of search and seizure within the limits of civil disorders; mass arrest procedures.
TERMINAL LEARNING OBJECTIVE:
|ACTION:||Learn the legal requirements of search and seizure in civil disorders and mass arrest procedures.|
|CONDITIONS:||You will have this subcourse paper and pencil.|
To demonstrate competency of this task you must achieve a minimum score of 70 percent on the subcourse examination.
The material contained in this lesson was derived from the following publication: FM 19-15.
On 19 July 1967, heavily armed state troopers and National Guardsmen helped city police conduct a house-by-house search of a black section in Plainfield, New Jersey. They were searching for 46 semiautomatic rifles which had been stolen from a nearby firearms plant. State officials, with the governor's consent, but without warrants, broke the law in an attempt to enforce it. Because of this and other area incidents during the riots of 1967, approximately 3,000 citizens filed lawsuits against the city of Newark totaling over $6 million. The claim is that certain constitutional rights and guarantees were disregarded by the law enforcement officials in their zeal to recover the stolen weapons. If some of the weapons had been found and the people holding them arrested, the stolen weapons could not have been used as evidence in a trial. One other bad effect of this type of unlawful activity is that the public may side with rioters in opposing law enforcement authority. During a civil disturbance, you should remember that the first concern is to end the disturbance. It is also important to bring law breakers to justice. Unless certain procedures are followed by law enforcement officers in making arrests and gathering evidence they will find "the criminal is going free because we made a mistake." You should be concerned with these three areas: search and seizure, arrest, and mass arrest procedures.
PART A - SEARCH AND SEIZURE
Searches are of two types, search with or without warrant, reasonable searches under special exceptions such as search incidental to arrest or stop and frisk. The fourth amendment to the Constitution provides that, except in certain carefully defined classes of cases, searching private property without the owner's consent is unreasonable, unless there is a valid search warrant. The aim of the fourth amendment is to protect an individual's person, property, and right to privacy. A search warrant does this by providing a judicial check on the law enforcement officers. The judicial check makes sure that a search is legally justifiable under the facts of the particular situation. No one but a judge or magistrate can issue search warrants. In Newark, if the authority to search had come from a judge, the search would have been, in all likelihood, legal. The statement, "in all likelihood," is made because the final determination of whether or not a search is legal is made by the courts. Even if a judge or magistrate issues a search warrant, a court may later feel that his decision was wrong and rule the search illegal. Even so, the initial determination must come from a local magistrate or judge. It is important to note that the fourth amendment requires that a search warrant will not be issued, except on probable cause. A search warrant must further name the place to be searched and the articles to be seized. During routine police activities or during a civil disturbance, the requirements of probable cause will not change. The judge will approve a search warrant, but first must be convinced that a crime has probably been committed and that there is a great likelihood that if a search is conducted, evidence will be found. The policeman's procedure in this regard does not change because he must be able to present facts to a judge or magistrate that show probable cause. Probable cause is the amount of evidence which is strong enough for reasonable belief. Probable cause is normally based on several sources, i.e., informants, physical evidence, witnesses, and police observation. During a civil disturbance, a judge or magistrate may not be available. Also, the law enforcement agent may not be able to quickly leave the area to gain the hearing of the issuing magistrate. Something must be done to aid coordination between those who want to search and those who want to authorize the search. The answer is the "mobile magistrate." Obviously, we will not find many judges willing to operate on the front lines. However, with prior planning, it may be possible for the judge to move closer to the civil disturbance. If possible, he should see the area to be searched. The move requires security. A temporary office near the area could also be established. This mobile magistrate would meet two goals. First, the time required to obtain a search warrant would be cut. Second, the magistrate on the scene could make personal observations, thus lending considerable weight to his decision to authorize the searches. This means that there would be a greater chance that the courts would agree with the judge's decision to authorize the search. The judge or magistrate issuing the warrant must be neutral and detached with no interest in the issuance of the warrant.
1. Fourth Amendment.
a. The fourth amendment's first requirement is that the warrant must name the place to be searched. For normal police operations, this requirement is strict. Searching all the buildings on a city block, an apartment complex, or even a large building would not be legal even if there was a search warrant. The fourth amendment strictly limits the place to be searched. During a civil disturbance, this requirement might be relaxed to allow a judge to authorize a search of a more general area. A civil disturbance does not justify unreasonable searches without warrants.
b. The second requirement of the fourth amendment is to specify the things to be seized. This requirement prohibits general exploratory searches. A request to search for "stolen property," "evidence of criminal conduct," or "contraband" is wrong. It is not specific enough. The law enforcement officer seeking the authorization must be able to specify the particular "things to be seized." In the Newark situation, this requirement could have been met if a search warrant had been issued for "stolen automatic weapons." If a department store has been looted and televisions and other electrical appliances stolen, a search warrant authorizing a search for "televisions and other electrical appliances" would be proper. If there is probable cause that a certain building is being used as a factory for molotov cocktails, a search warrant would authorize a search for these items. If possible, search warrant requests should be made by local law enforcement officers. They should be responsible for the use of these warrants. Of course, other agencies can help local officials. If federal military forces are in a situation that demands immediate action and no civilian policeman is available, the soldier should do the search. Obviously, if a policeman sees a sniper in a building, he may immediately enter the building to search for both the sniper and his weapons without a warrant. The best way is to surround the building and then have a special reaction team (SRT) go in. The SRT will use chemical agents to force out and disable the sniper if possible. Only specially trained SRT's will be used to control snipers. Normal control forces will be used to warn innocent bystanders and to secure the area to contain this problem. The burden of obtaining a warrant would likely frustrate the public interest which justifies the search.
2. Legal Considerations.
During a civil disturbance, it would be good if the law enforcement agencies could cut off the disturbed area. This would cut down on the weapons flow and ammunition. While this has clear advantages, is it legal? If not, civil lawsuits may arise. A federal court may order an injunction against the police commissioner forbidding further searches; however, this will seem to give approval for the civil disturbance. Evidence seized would not be admissible in court later. Yet, if roadblocks are set up near the area boundary and inspections are given only at the roadblocks to each vehicle, the inspections would be lawful. They give another exception to the fourth amendment. This can be understood by comparing them to inspections by military police at the gates to military installations and bases. These inspections have been upheld by the courts because of the public interest and national security; however, during a civil disturbance, national security might not be at stake. Public safety and welfare justifies this activity. Vehicle inspections are not made at random stops throughout the city. They are only at roadblocks outside a civil disturbance.
3. Search and Seizure.
As a law enforcement official you are advised to be aware of current court rulings in the search and seizure area, since they are likely to affect the performance of your duties. Protected areas against search under the fourth amendment are presented.
a. Property interest vs. privacy interest. Current doctrine is that the fourth amendment protects people and not places. Anything exposed to the public view whether in your home, business, or public street is not protected by the fourth amendment. The determining factor in fourth amendment protection is privacy. If a person attempts to hide an item form the public, his privacy is protected under the fourth amendment. The use of voice and handwriting samples, for example, during criminal investigations does not carry fourth amendment protection because they are exposed to the public without any expectation of privacy.
b. The plain view doctrine allows a lawful seizure of illegal and unlawful items found in plain view by the officers using their natural senses, i.e., smell, hearing, and sight, providing the officer is in a place where he can lawfully be.
(1) Listening to or looking at a resident. These acts are not considered as searches requiring a warrant if officials are positioned on public property and utilizing their natural senses.
(2) Vehicles. Officials are not required to obtain a warrant to examine the exterior of a vehicle or look through its window. If illegal or unlawful items are seen inside the car by looking through its windows, current case law allows the official to enter the car and seize the items. (Michigan vs. Thomas, 102 SCT 3079.)
PART B - ARRESTS
Another requirement of the fourth amendment is that the law enforcement officer must show probable cause that those in his area of custody have committed or are about to commit a crime.
1. Who Can Make an Arrest? State law enforcement officials in their jurisdictions can make arrests. City and county police have broad powers of arrest. Their authority covers almost all crimes of civil disturbance. State police powers range from those similar in the local police to limited powers of arrest for only traffic related offenses. Except for nine states, the National Guard has no powers of arrest other than the right of citizen's arrest. Citizen's arrest is the authority of one citizen to arrest another who committed a crime in his presence. While this seems to cover most situations that confront the National Guard, it may not be enough. Federal civilian authorities have arrest powers only for offenses which break federal law. Most crimes only break state laws.
2. Federal Arrest Authority.
Federal military personnel have no statutory authority to arrest civilians during a civil disturbance. They are not acting in a private civilian capacity. This does not mean that federal military personnel have no powers of arrest. Though no statutes give arrest powers to soldiers in a civil disturbance, they must do the task they were sent to do. Several legal writers have said that federal forces sent to help local officials in a civil disturbance have arrest powers similar to those of local law enforcement officers. Yet, whenever possible, civilian police should arrest civilians. If it is necessary for the military to act, the soldier will immediately seek a civilian police officer to take custody of the civilian. In a civil disturbance, identifying an arrested person is hard. It is especially hard if he is being arraigned by someone who did not actually witness the criminal act. Many answers have been suggested. They include photographing the accused and the arresting officer and the use of detention forms by the soldier.
3. Stop and Frisk.
The Supreme Court expanded the authority of law enforcement officers to exercise control over other individuals. The decision gives police the authority to "stop and frisk" suspicious people under certain conditions based on reasonable suspicion. This extension of the fourth amendment was justified by the police officer's need to protect himself in confronting possible criminals. During a civil disturbance, the need for self-protection is even greater than in normal police activities. The Supreme Court has ruled that a police officer may stop an individual if a police officer feels criminal activity is in progress and that there is a well-founded belief that a person is armed and dangerous, the officer may temporarily stop and frisk the individual for weapons. The two requirements, stated above must be met before the police can "stop and frisk."
4. Civil Disturbance Emergency Planning.
The police should have emergency plans for civil disturbances, with clear rules on when to arrest and special plans to follow when an arrest is not needed. The rules should consider when and why arrests are to be made (major offenses, minor offenses, etc.). Plans should also include alternatives to arrest and detention, such as issuing a summons or a notice to appear. The alternatives to arrest need to be operational before the emergency arises. In the event of mass violation of minor offenses (curfew violations, etc.), a summons would be available in relieving overcrowding in detention facilities.
PART C - MASS ARRESTS
1. Facilities. During a civil disturbance, many people are arrested. Some cities have had as many arrests in 1 week of rioting as in a 6-month period of normal activity. The May Day disturbance in Washington, 1971, witnessed 12,000 arrests in 1 week by the Washington Police Department. Any civil disorder may mean setting up emergency jails; however, existing jails should first be filled to capacity. If possible, regular inmates and arrestees of a riot should be separated. Most civil disturbance arrestees need only minimal security facilities. It is important that possible civil disturbance facilities be checked out in advance. The following factors should first be considered:
- Make detention facilities accessible.
- Rapid mobilization of personnel.
- Adequate communication facilities.
- Availability of supplies to meet minimum standards of comfort and sanitation.
- Inspection by community leaders.
- Detention centers are the responsibility of the local, state, and federal (Department of Justice - Bureau of Prisons) authorities, in that order.
2. The Booking Process. Before a person can be jailed, he must be booked. Booking at the precinct station doesn't work for mass arrests. Therefore, facilities must be provided near the temporary detention centers. Mobile booking vans could house the necessary personnel and equipment. After the booking, arrestees can be moved to the jail or detention facility.
3. The Arraignment Process. Next the arrested person must be brought before a judge or magistrate for arraignment. The defendant must learn the precise charge(s) against him. His bail must be set at this time and a preliminary hearing is scheduled. During mass arrests, several potential problems must be taken care of to see that the process runs smoothly. This would include more courthouses, clerks, security, and judges. Extra judges may be obtained from other areas or by requesting temporary judges from the local bar association. From prior planning, you will know that state laws allow the temporary appointment of judges, prosecutors, bailiffs, and supporting personnel. If not, laws should be written to permit this.
4. Prosecuting and Defense Attorney. Prosecuting attorney's offices are staffed for an average number of cases. Help may come from public attorneys and the aid of private attorneys may be required also. While many former prosecutors may be available for emergency volunteer duty, detailed planning is called for. In large scale civil disorders, there is usually a shortage of lawyers who are skilled in the defense of criminal cases as past civil disturbances have shown, The extreme confusion of civil disturbances strains the quality of justice through sheer numbers. The source of extra defense counsel is the local bar association. The profession has always felt bound to provide representation for each accused person, with or without money. Local planning prior to emergencies would help both lawyers, who volunteered their services and the accused.
PART D - USE OF FORCE
1. Looters. During civil disturbance, looters present a big problem to law enforcement officials. One problem is telling how much force to use in preventing crimes or making arrests. State law enforcement officials are familiar with the rules and policies of the phrase "use of force." These rules provide that deadly force will only be used to stop a felony or prevent an escape as a last resort. There is no typical looter, sometimes women and children are involved. Looting is usually followed by the burning of buildings so that all records of stolen goods will be destroyed. The federal military forces may use force "reasonably necessary" to prevent arson, but under no circumstances will they fire on looters. Warning shots will NOT be fired because of the potential danger to innocent bystanders. When shooting is necessary, shots will be aimed to wound, not to kill. Riot control agents followed by an arrest is one of the best ways to stop looters.
2. Snipers. Snipers also pose a problem. They threaten lives and slow down other police operations. The well-trained combat soldier responds to sniper fire with a mass of fire power. In a civil disturbance, this endangers other people more than snipers. The best way is to isolate the area and use a special reaction team (SRT). A well trained SRT will have the best chance to neutralize the sniper with minimum danger to all involved.
PART E - FRIENDLY CITIZENS
Another problem may be the friendly citizens who should be removed and separated from the rioters. However, removal cannot be mandatory because "friendly citizens" have the right to remain to protect their property. Since many will be armed, the law enforcement agency should tell them where its officers are located.
PART F - MARTIAL LAW (Also see Appendix A)
1. General. Martial law depends on public necessity. The extent of the military force and the measures taken will depend upon the actual threat to order and public safety. The decision to impose federal martial law is normally made by the President. (See Appendix A for details of martial law.)
2. Legal Effects of Martial Law. In an area where martial law is maintained by federal military forces, the local civil and criminal laws will continue. Their actual enforcement may be suspended because of the inability of the civil authorities to function. Laws may also be suspended by order of the President or by order of the military commander acting under authority of the President. Under martial law, the President may cause military agencies to arrest civilians charged with offenses against special rules and regulations issued by the military commander. They may stay in military custody until they can be released safely or delivered for trial.
3. General Restrictions on Civilian Population in the United States. In martial law, the military commander manages the local government. He may have to protect civil officials. He may also provide for emergency public service to prevent or relieve human suffering. Proclamations and restrictions on the rights of citizens or on the civilian economy are normally issued by the commander through the media.
PART G - CIVIL AND CRIMINAL LIABILITY OF MILITARY PERSONNEL
When federal military forces are used, regardless of martial law, the acts of individual military personnel are subject to review by the civil courts in actions for damages or in criminal proceedings. They are still subject to the UCMJ. In a criminal prosecution, the civil courts ordinarily do not convict a military subordinate for acts done in good faith in obedience to orders from superiors. If its illegality is obvious, obeying the order probably would not be a valid defense. The use of force in a military mission does not make an otherwise unlawful act by military personnel legal. The reckless or malicious use of force may subject military personnel to civil or criminal liability, or both.
PART H - RIGHT TO TRIAL BY FEDERAL COURT
The following quotation is taken directly from the law. It guarantees the right of any member of the Armed Forces to a trial before a federal court, rather than a state court, for a charge or claim against him for an act performed within his duty. "A civil or criminal prosecution in a court of a state of the United States against a member of the Armed Forces of the United States on account of an act done under color of his office or status, or in respect to which he claims any right, title, or authority under a law of the United States respecting the Army Forces thereof, or under the law of war, may at any time before the trial or final hearing thereof be removed for trial into the district court of the United States in the district where it is pending in the manner prescribed by law, and it shall thereupon be entered on the docket of the district court, which shall proceed as if the cause had been originally commenced therein and shall have power to hear and determine the cause." (28 USC 1442a.)
PART I - DETENTION OF CIVILIANS
Federal troops of federalized National Guard units in civil disturbance operations are acting as agents of the federal government. It may be necessary to detain civilians involved in the civil disturbance. However, civilians arrested by military personnel should be restricted to serious offenses. This includes incidents involving destruction of property or injury or death. The detention is made under the authority of the Executive Order or on instructions from the commander. Civil authorities (police, sheriff, US marshal) should make the arrest. When this is not possible, the detained person must be quickly turned over to local, state, or federal civilian authorities. If force is required, it must be reasonable and prudent under the circumstances.
PART J - WRIT OF HABEAS CORPUS
The writ of habeas corpus is an order issued by a court. It is addressed to the custodian of a prisoner. It states that the custodian bring the prisoner into the court for the judicial decision of the legality of his arrest and detention. A federal military officer must obey the writ when it is issued by a court of competent jurisdiction. He should consult JAG as to the procedures to follow.
PART K - LAWS AND ORDINANCES
Many state and local laws and ordinances can help control civil disturbances. They vary from state to state and from city to city. The type of laws and ordinances named below identify some regulations which can help civil authorities and military commanders counter threats of civil disturbance. If there are no laws and ordinances, military commanders on JAG advice, should encourage the civil authorities to make them.
1. Noncongregation. When gatherings tend to create a civil disturbance, it may be possible to restrict or regulate them through laws and ordinances.
a. Laws and Ordinances to Prevent Gatherings. Under civil disturbance conditions, people should not assemble. This may range from prohibiting congregation at any place and time to restrictions only in certain places at certain times. This type of law should set the maximum number of people that may lawfully gather. Such laws or ordinances serve to stop disorders at an early stage.
b. Permits to Gather. When tension eases, public or private gatherings should be allowed. A group representative should apply for a permit to meet at a certain place and time for a specific reason. The requirement allows police officials time to prepare for possible outbreaks. Permits are appropriate for events involving large numbers of persons, such as festivals, parades, and other gatherings. The civil authority must tell group leaders of local laws and ordinances which apply to the contemplated group activity.
2. Restriction of Circulation. The movement of people after dark can be controlled by curfew and pass system. Passes are issued so that businesses and public utilities can operate during the curfew period. As tension eases, restrictions should gradually stop. All travel may stop until the trouble ends. As tension eases, limited travel by permission should begin. Such laws can be enforced by the use of roadblocks and checkpoints.
3. Registration. Laws which require registering people, aid in keeping track of troublemakers, and provide a good source of information. At a minimum, name, date and place of birth, occupation, and home address are usually available. Laws may also require registration of all new residents, those leaving, and visitors.
4. Communications. All communications equipment transmitting or interfering with official messages must be registered. Also, authority to seize or take over such equipment should be defined. The law should include all electronic or wire communications equipment whether professional or homemade. Sound trucks and electronic megaphones should also come under laws of this type. Such laws serve a dual purpose. They first reduce the possibility of any interference with official messages. Secondly, they keep troublemakers and mob leaders from reaching large numbers of people.
5. Conspiracy Related Civil Disorders. Laws can make it illegal for two or more persons to meet to plan forms of civil disturbances. They might also ban starting or joining any civil disturbance. Acts which break this type of law include dangerous speeches, threats to public officials, or acts aimed at the overthrow of the government. Any other group action which might result in civil disorder should be banned by law.
6. Interference with Government and Public Functions. Since the government must function, the law should make certain actions that would hinder the government, a crime. Public transportation, communications, and other services and utilities must also be able to continue through periods of unrest. Disruption of such services increases the possibility of violence.
7. Banning the Possession of Weapons. It may be necessary for civil authorities to make laws banning the carrying of, or requiring the registration of firearms, ammunition, and explosives. These laws should deal with such items as automatic weapons, grenades, sporting rifles and shotguns, pistols, revolvers, firing devices, and certain chemical agents. It may be necessary to seize other items. Laws requiring the inspection of automobiles may become necessary. These laws may allow for the confiscation of such items as clubs, bottles, chains, and other potential weapons. Receipts should be used to keep record of the property seized and to make the return run smoothly.
8. Other Restrictions. The sale of alcoholic beverages, volatile liquids, flammable materials, and any other locally available materials should be stopped. They could be used either to inflame crowds or as weapons or arson materials.
9. Use of News Media to Inform the Public. News media can bring laws to the attention of the public. Media cooperation should be sought for such actions. The media can help prevent or minimize civil disturbances.
PART L - ROLE OF THE MILITARY POLICE
Helping civil authorities in an emergency is a mission the Army has performed before. Military police officers must understand how federal troops are used. Because of the organization and training of military police units, it is possible that military police will be the first troops used for this type of mission.