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LESSON 2
LEGAL ASPECTS OF CIVIL DISTURBANCE
LESSON DESCRIPTION:
In this lesson you will learn: laws governing civil disorders; define the role and responsibility of Armed Forces in civil disorder; define the relationship between Local, Federal, and State Agencies.
TERMINAL LEARNING OBJECTIVE:
| ACTION: | Learn the legal aspects of civil disturbance. |
| CONDITION: | You will have this subcourse, paper and pencil. |
| STANDARD: | To demonstrate competency of this task you must achieve a minimum score of 70 percent on the subcourse examination. |
| REFERENCES: | The material contained in this lesson was derived from the following publication: FM 19-15. |
INTRODUCTION
Civil disturbances in the US did not start with the racially inspired riots of the 1960's or the anti-Vietnam protest demonstrations. Civil disturbances have been widespread since the founding of this nation. Religious differences were, in fact, a prime factor which caused the Puritans to leave England. The following historical events demonstrate civil disturbance in this country.
The Boston Tea Party (1773)
Shay's Rebellion (1787)
The Pullman Strike (1894)
Newark Riots (1967)
Kent State (1970)
Antioch College (1973)
Miami's Overtown District (1983)
Los Angeles (The Verdict) Riots (1993)
As a member of the control force, you should understand the legal issues surrounding civil disturbances.
PART A - DEFINITIONS
1. Dissent - a difference of opinion. It may be in opposition to established authority or doctrine. Dissent may be either social, political, religious, or economical in nature.
2. Civil disobedience - The public, purposeful breaking of the laws. The refusal to obey the demands or commands of the government, especially as a nonviolent group means of forcing concessions from the government.
3. Civil disturbances are group acts of violence and disorders. These acts are prejudicial to public law and order, and include all domestic conditions requiring or likely to require the use of Federal Armed Forces under 10 U.S.C. Chapter 15.
PART B - LEGAL CONSIDERATIONS OF FIRST AMENDMENT RIGHTS
Many laws in the US are adapted from English law and from documents such as the Magna Carta and the English Bill of Rights. The First Amendment rights to freedom of speech, press, and peaceful assembly are American laws, based on lessons learned in early English history. During the early 1700's opposition to the sovereign power in England was an act of treason made punishable by death. There was no freedom of speech, press, or assembly to redress grievances against the government. Additionally, kings often suspended other laws without consent of Parliament in order to keep their subjects from expressing themselves.
The drafters of the American Bill of Rights sought to forbid suppression of freedom of the press, speech, and assembly. Based on this first amendment right as clarified through judicial decisions, citizens have a right to dissent. Much of the Constitution is written in broad general terminology, therefore, courts assumed policy making authority as they decide constitutional issues. Policies regulating civil disturbances are Supreme Court decisions establishing protected rights as well as restrictions on civil disturbance participants. Since you are likely to be employed for civil disturbance control operations, it is important that you be aware of legal rights of citizens as well as the responsibilities, authority, and restrictions of law enforcement officials.
1. Right to Parade, Sit in, and Picket in Public. Parades, sitins, and pickets are strategies used by organized groups. The Supreme Court has held these to be constitutional rights protected by the first amendment. The following cases demonstrate Supreme Court policies on these issues.
a. Thornhill v. Alabama, 310 US 88, (1946) established the right to engage in picketing. Thornhill was convicted of violating the antipicketing section of the Alabama Code. The state court of appeals affirmed the judgement and the Supreme Court of the United States granted certiorari. Certiorari is a writ from a high court to a lower one, requesting the record of a case for review. The US Supreme court reversed the decision and decided that Thornhill had a constitutional right to picket.
b. Edwards v. South Carolina, 372 US 299, (1963) prohibited states from abridging first amendment right of parades and marches as an expression of dissent. Edwards was held on criminal charges for participating in a demonstration which was forbidden by the state statute. States do have a right to regulate parades and marches through statutes and ordinances, but the right to march and parade is a first amendment right of citizens.
c. Cox v. Louisiana, 379 US 536, (1965) guidelines on street rallies, parades, and sidewalk demonstrations were established. When public facilities are used in protests the ultimate concern must be the rights of the community as a group. While not prohibited as free expression of speech, these activities can be regulated to avoid disruption and prevent unlawful acts from occurring.
2. Restriction on Content of Speech. Feiner v. New York, 340 US 315, (1951) - in this case, the Supreme Court determined that any type of communications subject to give rise to law enforcement problems and create friction in a community was not a first amendment right. Feiner's arrest was based on the potential for starting a riot and not as an attempt to stop him from speaking his views. A related ruling determined that a person does not have the right to scream "fire" in a crowded building, causing panic.
3. Restriction on Place of Protest. Adderly v. Florida, 385 US 39, (1967) - the courts rejected the concept that people can protest where they choose. Local authorities can limit areas by passing statutes or ordinances. Hospitals and schools during hours of operation are examples of areas where demonstrations would cause problems.
4. Summary.
The cases summarized above were cited to illustrate how difficult it is to demonstrate when the exercise of a first amendment right becomes unlawful. You should contact the staff judge advocate for such assistance.
PART C - ARMY MISSION
The mission of the military, when properly committed to a civil disturbance, is to help keep the law and order. It is important to recognize that in most cases requiring federal aid, the primary means to fulfill the mission is for federal forces to help state and local authorities. They must not take over for them. Local and state officials have a responsibility to take the necessary measures to put an end to disturbances before asking for federal help.
PART D - CONSTITUTIONAL AND STATUTORY FOUNDATIONS OF FEDERAL MILITARY INTERVENTION AND ASSISTANCE
1. General.
Federal military forces have been needed when civil disturbances exceeded the power of local civil authorities to keep order. The Constitution and various statutes provide for the use of federal military forces at such times. But, the use of federal military forces is also limited by Federal law.
2. Constitutional Requirements.
The Constitution imposes on the President the duty to see that the laws of the United States are faithfully executed (Article II, Section 3). The Constitution requires the United States to protect every state against domestic violence (Article IV, Section 4). The Fourteenth Amendment to the Constitution forbids the states from denying equal protection of the laws to any person.
Congress has enacted laws to enforce the constitutional requirements mentioned above.
a. 10 USC Section 331 authorizes the President to use the Armed Forces to suppress an insurrection if the legislature or the governor of a state requests assistance.
b. 10 USC Section 332 authorizes the President to use the Armed Forces to enforce the laws of the United States when unlawful combinations or assemblies, or rebellion make it impractical to enforce the laws through the normal use of the courts.
c. 10 USC Section 333 authorizes the President, if unlawful actions are depriving a person of a right under the Constitution and the State cannot or will not protect the person's rights, to use the Armed Forces to protect these rights.
3. Posse Comitatus and Exceptions. There are limits to the use of the Federal Armed Forces. The Posse Comitatus Act (18 USC Section 1385) forbids the use of the Army or the Air Force to enforce civilian laws. The act was passed in 1878 in reaction to the use of Federal troops to guard polling places during Reconstruction. The act is a general prohibition against the military acting in a civilian law enforcement role. There are exceptions to this general prohibition.
a. The act itself excepts cases and circumstances expressly authorized by the Constitution or Acts of Congress. So, actions taken under the provisions cited above (Article II, Section 3; Article IV, Section 4; the 14th Amendment; and 10 USC 331-333) are not violations of the act. There are three statutes that come up frequently in this area.
(1) 10 USC Section 371. This allows the military to pass information to civilian law enforcement officials if the information was collected during the normal course of military operations.
(2) 10 USC Section 372. This allows the military to make equipment, base facilities, or research facilities available to civilian law enforcement agencies.
(3) 10 USC Section 373. This allows the military to train civilian law enforcement officials in the use and maintenance of equipment and to provide them with expert advice.
b. Another exception to the act is the United States' inherent right and power to maintain order and to carry out its responsibilities. The federal government must be able to act quickly to maintain order and to keep the government functioning. Emergencies, whether natural or caused by man, are situations where quick action is taken to protect life and or property and to keep the government functioning. The federal government can always act under this inherent power to protect federal property and functions.
c. The final exception is that of a military interest. When Armed Forces personnel are being used to pursue a valid military purpose, there is no violation even though an incidental result may be the enforcement of civilian law. Be careful! The courts will look at the whole situation. If the courts feel that the military purpose is a sham, they will find a violation of Posse Comitatus.
PART E - LEGAL AUTHORITY TO CONTROL CIVIL DISTURBANCES
1. Types of Intervention and Aid.
a. The authority to commit federal military forces to control civil disturbances and aid in disaster relief comes from the Constitution, acts of Congress, and executive orders of the President. Protecting life, protecting property, and keeping law and order within a state's territory are the primary responsibilities of state and local authorities. Use of federal troops will take place only:
(1) After state and local authorities have used all their own forces and are unable to control the situation.
(2) When the situation is clearly beyond the power of state and local authorities.
(3) When state and local authorities will not take the necessary action.
NOTE:See Appendix A for a more detailed discussion of the laws concerning civil disturbances and Federal intervention.
b. The more common types of intervention are discussed below:
(1) Request of the state. Section 4, Article IV, of the Constitution makes it the duty of the federal government at the request of legislature of any state (or of the governor if the legislature cannot be convened) to protect a state against domestic violence (See Figure 2-1). Congress has authorized the President to intervene with federal military forces for this purpose (10 USC 331). A state requests federal assistance to help restore and maintain law and order to the Attorney General of the United States. The Attorney General has been designated by the President to receive and coordinate preliminary requests from states for federal assistance. Only the President can commit federal troops to assist a state.
(2) To enforce the laws of the United States. Section 3, Article II, of the Constitution makes it the President's duty to faithfully execute the laws of the Unites States. Whenever the President thinks that it is impossible to enforce the laws of the United States within any state or territory through ordinary proceedings, he is authorized by Congress to try to settle the situation with any federal military forces that he thinks is necessary to restore order (10 USC 332).
(3) To protect the rights of citizens within a state. The 14th Amendment of the Constitution forbids any state to deny the equal protection of the laws to any person within its jurisdiction. In carrying out this provision, Congress has provided that whenever insurrection, domestic violence, unlawful combinations, or conspiracies in any state to obstruct or hinder the execution of the laws of that state and of the united States, as to deprive any of the people of that state rights, privileges, immunities, or protections named in the Constitution and secured by law, and the constituted authorities of that state are unable, fail, or refuse to provide such protection, will be deemed a denial by that state of the equal protection of the laws. Thereupon, the President shall take such measures, by intervention with federal military forces or by any other means, as he may deem necessary to put a stop to such disturbances (10 USC 333).
(4) To protect federal property. The right of the United States to protect its functions and property by intervention with federal military forces is well established. The exercise of this right is an executive function. It extends to all federal functions and property. Intervention is necessary where the need for protection exists, and the local authorities cannot or will not give the proper protection.
(5) To assist state and local governments in major disasters.
(a) Public Law 93-288, Title 1, S101, 22 May 1974, 88 Statute 143, Chapter 68, Title 42, United States Code Disaster Relief Act of 1974, authorizes federal assistance to state and local governments in major disasters to help with damage and suffering. The military is authorized when directed by the President to provide such assistance. The law also provides the President with the power to determine whether a disaster is a major disaster.
(b) The Administrator, Federal Disaster Assistance Administration (FDAA) of the Department of Housing and Urban Development (HUD), is delegated the authority (by the President) to plan the activities of Federal agencies in providing assistance to state and local governments during a "major disaster" declared by the President (AR 500-50).
(6) To help in emergency flood control activities, Section 5 of the Flood Control Act of 1941 (55 Stat. 650), as amended (33 USC 701n) authorizes the Chief of Engineers to provide assistance in connection with rescue operations and other emergency flood control activities. The Continental United States Army Military District of Washington (CONUSAMDW) commanders, when requested, will help the Civil Works Program field agencies of the Corps of Engineers in providing such assistance. Administration of this act is under the direction of the Secretary of the Army and the supervision of the Chief of Engineers. No declaration of a major disaster is required.
(7) To help civil defense operations. Public Law 920, 81st Congress (the Federal Civil Defense Action of 1950, 64 Stat. 1245) as amended (50 USCA 2251 et. seq), provides a plan of civil defense in the United States. See AR 500-70 and FM 20-1 for guidance concerning emergency employment of Army resources in civil defense.
2. Request for Federal Intervention.
When the President receives a request, he must judge whether or not to send federal troops. When the governor makes contact with the United States Attorney General, and before the formal request is issued, the Attorney General tells the President. Then a senior civilian representative to the Attorney General (SCRAG) will probably be sent to the disorder area to check the situation. In Detroit, no federal official was sent to the city at first. The federal representative was only sent after the formal request, which came 11 hours later. After the governor's formal request has been received by the President, a Department of the Army liaison team (DALT) will leave immediately for the disorder area. Before the President orders the National Guard or federal troops to control a confrontation, he issues a proclamation ordering the troublemakers to leave and retire peaceably. The proclamation is followed by an Executive Order which authorizes the Secretary of Defense to call into active federal service members and units of the state's National Guard, and to use the Armed Forces as he thinks is necessary to restore law and order and to protect people and their property. The Executive Order is followed by:
a. A delegation of authority from the Secretary of Defense to the Secretary of the Army. The Secretary of the Army becomes the executive agent.
b. The Secretary of the Army's designation of the Chief of Staff as the Commander of the Armed Forces and the federalized National Guard members and units to be employed.
c. The Chief of Staff's letter of instruction to the task force commander (US Army commander of all federalized troops).
d. It is important to understand formal Army procedures. Yet, many of the above steps have been simplified because an action plan is always readily available.
PART F - POLICIES. USE OF MILITARY FORCES IN DOMESTIC CIVIL DISTURBANCES
NOTE:See Figure 2-1, Escalation of Civilian Law Enforcement Response and Figure 2-2, Chain of Command for Civil Disturbance.
1. Basic Policies.
a. Military aid to civil authorities in domestic civil disturbances may be given by the Army when it is requested or directed in accordance with the laws and Executive Orders cited above. Commanders may also act without prior authorization if the situation requires action under the above conditions.
b. Military commanders must be ready to aid civil authorities in domestic civil disturbances based on plans for such disorders (see Figure 2-3). Commanders must put together the necessary plans with civil authorities at state and local levels.
c. Military resources and other military actions in civil disturbances will be on an as needed basis and will stop as quickly as possible. A commander making his resources available to civil authorities is subject to no authority except his military superiors.
d. The military service with the resources closest to the area will be the first to aid civil authorities. Further aid will be agreed on by the senior service commanders concerned.
2. The Military Commander's Relations with Other Authorities.
a. In case the military is used, the commander will cooperate fully with the governor and other state and local authorities, unless it interferes with his mission. The commander's policy is to stop the violence without undue force.
b. Liaison and coordination. The commander puts together the plans at all levels with civilian authorities to get the best cooperation in giving military aid. Joint cooperation between military and civilian authorities is needed to set up command posts. Among the major areas requiring coordination are:
(1) Keeping law and order.
(2) Custody of offenders.
(3) Documentation of evidence.
(4) News releases.
(5) Traffic control.
(6) Exchanges of intelligence information.
(7) Care of the injured.
(8) Evacuation, housing, and feeding.
(9) Protection of key areas or facilities.
(10) Compatibility of communications.
(11) Delineation of areas of responsibility and establishment of joint patrols.
(12) Removal of debris and restoration of normal conditions.
3. Public Information. The use of federal military forces in a civil disturbance or disaster causes some public information problems which must be remembered when making emergency plans at all levels.
a. The public in the area will be directly affected by military actions, individually and as a group. The public outside the area will be interested in area events.
b. The press will rely on rumor if they are not given timely and accurate data. Regular news conferences and briefings should be held by senior civilian and military officials to inform the press. Where practical the press should be allowed to tour the affected area with senior officials.
c. Troop conduct will get special press and public attention. All troops should be oriented and kept informed while in the area.
d. Cooperation and coordination between all information agencies at the scene are very important to the exchange of information and the general news gathering efforts.
e. The area commander should be the official Army spokesman and should be given the authority and resources to:
(1) Make news releases concerning operations and instructions or public cooperation.
(2) Hold press briefings and broadcast reports.
(3) Approve press coverage of units including escorts.
f. Except for the task force commander, military personnel should talk to the press only with the approval of the public affairs officer.
4. Command.
a. Military Forces. When federal military forces come in, the assigned commander must act to fulfill his mission. In the fulfillment of his mission, he must measure his authority. The people in the affected area must know the rules of conduct and other measures to be taken by the military. These should be announced by local order. They should be given the widest possible publicity.
b. Limitations. Federal military forces will not be placed under the command of an officer of the state defense forces, the National Guard, or any state, local, or federal civilian official (AR 500-50).
c. Command of State Troops. State defense forces or state National Guard troops not in federal service may be directed by a United States Army officer with the consent of the governor or other appropriate state official. The Directorate of Military Support is directly responsible for aiding in making policies and procedures for calling the National Guard to active federal service. It also orders other Reserve Components to active duty for use in civil disturbance operations, as well as developing the appropriate measures for employing federal troops. The Personal Liaison Officer, Chief of Staff, Army (PLOCSA), gets state authorities to cooperate with state forces or state National Guard troops not in federal service. They must also cooperate with the military commander in the area.
PART G - THE MANAGEMENT AND CONTROL OF LAW ENFORCEMENT AGENCIES
Whenever different government agencies coordinate their efforts, control problems begin. Many officials have said that they don't really know the procedures to bring in agencies from other government levels. We have already discussed the problem of requesting federal military forces. The same problem was in the report of the National Advisory Commission of Civil Disorder. It said that in the Chicago disturbance (summer of 1968), the first call for state police aid came from a local police department inspector to the head of the state police. State law required that the mayor ask for aid from the governor. The confusion caused much time to be lost. Many states have the same problem concerning who has the authority to call the National Guard as a state militia force. Though all states allow judges, mayors, sheriffs, the state adjutant general, or the senior National Guard officer on the scene to make the call. Many state laws do not give the conditions authorizing state assistance. All emergency plans must consider the statutory procedures for requesting assistance. All responsible officers should know them.
1. Mutual Coordination. Who commands the state police, the state National Guard, and federal military forces in a civil disturbance? The answer is found in the National Guard Bureau. Statistics of 46 states from a command and control study of units called into state service have revealed the following:
a. Seventeen states practice coordination without stating whether military or civil agencies come first.
b. Fifteen states authorize the state National Guard to be under civil authority.
c. Seven states grant authority over civil agencies to the adjutant general of the state National Guard.
d. Three states place the National Guard under civil agency control.
e. Three states place civil agencies under National Guard control.
f. One state noted that the adjutant general has directive authority of civil agencies by law. Actually, the National Guard is under civil directive authority.
2. Command Relationship.
Obviously state laws are not the same on command. As a result, answers to the command problem vary. Federal military forces support local agencies. They do not take orders from local civilian authorities. Federal task force commanders command federal military forces. Agreements must be made with all agencies in a disturbed area.
PART H - RELATIONSHIP BETWEEN THE GOVERNMENT AND THE CAMPUS
1. Colleges. College administrators should be responsible for their campuses. Yet, when campus confrontations go beyond the capability of the college authorities, it becomes a matter for the civilian police agencies. With more than 40,000 separate, often overlapping, police agencies in this country, jurisdiction becomes an issue.
2. Jurisdiction. Jurisdiction is a problem that is always with us. You cannot ignore it. Information on jurisdictional boundaries must be known by all enforcement agencies who aid local authorities. Using the war tactics concept, such as drawing battle lines down the center of the streets totally disregarding the existing legal boundaries can only cause confusion and legal problems. All agencies in the area must know their legal boundaries and authority during a confrontation.
PART I - OTHER MUNICIPAL AGENCIES
Up to this point the discussion has been mainly concerned with law enforcement agencies. Other agencies must be involved if you commit all community resources.
1. Fire/Police Departments.
The fire department aids the police in civil disturbances with regard to fire protection and emergency rescue.
2. Civil Defense Centers.
Civil defense centers are vital in confrontation management. They help coordinate with all community agencies. They have many resources available.
PART J - ROLE OF THE ARMED FORCES
1. Civil Authorities.
Civil authorities enforce and maintain domestic law and order. As long as they do, Americans rightly believe that the military should not interfere. The Posse Comitatus Act prohibits use of military personnel to enforce civilian law, except where legally authorized.
2. Military Authorities.
The responsibility of the military is mainly to protect the country from any hostile nation or group of nations. Yet there are other threats to the country that the military must be ready to meet. Widespread civil disturbance threatens the government. It lowers public morale; it destroys public relations, confidence, and progress. The experiences in Detroit (1967), Chicago, Baltimore, and Washington (1968), show the need for federal aid during extreme civil disturbances. There is also the threat of natural disasters.
a. The Department of the Army is responsible for aiding civil authorities in civil disturbances and for coordinating all the military services in this area. It must also be ready to provide military support in disasters within the United States.
b. Department of the Army policy rests on the point that law and order is the responsibility of state and local governments (AR 500-50). Disaster aid rests mainly with persons, private industry, local and state governments, the American National Red Cross, and certain federal agencies. Department of Defense components may aid civilian authorities as directed.
c. The military has been called in for civil disturbances and to give support in disaster relief operations. In this way, military units need special training and the plans relating to man-made and natural disasters. Military units are well-organized and equipped for such missions. Yet, civil disturbance control and disaster relief operations must be thought of within the overall context of the community.
Practice Exercise
