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ORDER WITHOUT LAW An ACLU Study of the Largest Sweep Arrests in American History \I I

' . I . MAYDAY 1971: ORDER WITHOUT LAW

An AC LU Study of the Largest Sweep Arrests in American History

American Civil Liberties Union of the National Capital Area

July 1972

ACKNOWLEDGMENTS

"Mayday 1971" is a cooperative effort of the American Civil liberties Union of the National Capital Area.

The initial work of screening the affidavits was done by Dennis Davison and Vicki Katz.

Harvey Katz was responsible for compiling and analyzing the mate· rial from the affidavits, court transcripts, newspapers and magazines, and from the records of other organizations.

James H. Heller, then Chairman of the ACLU-NCA; Ralph J. Temple, Legal Director of the ACLU Fund; and ACLU Executive Board members John Vanderstar and Monroe Freedman served as editors of the report.

The final version was written by Florence B. Isbell, Executive Director of the ACLU of the National Capital Area.

CONTENTS

INTRODUCTION ...... 1

I. PROLOGUE TO MAYDAY ...... 3

II. MAY 3: QUALIFIED MARTIAL LAW ...... 7

Ill. MAY 3: POLICE VIOLENCE ...... 15

IV. MAY 4: AN UNLAWFUL ASSEMBLY ...... 23

V. MAY 5: THE STEPS OF THE CAPITOL ...... 29

VI. THE DETENTION CENTERS ...... 35

VII. THE COURTS ...... •...... 45

VIII. THE DECISION-MAKERS ...... 51

IX. THE LEGAL COUNTERATTACK ...... 59

X. CONCLUSION ...... 69

APPENDICES ...... 71 APPENDIX 1. FIELD ARREST FORM ...... 73

APPENDIX 2. U. S. COURT OF APPEALS ORDER IN SULLIVAN V. MURPHY ...... 74

APPENDIX 3. ACLU AFFIDAVIT FORM ...... 77

INTRODUCTION

Between May 3 and May 5, more than 13,000 people were arrested in Washington, D.C.-the largest mass arrest in our country's history. The action was the government's response to anti-war demonstrations, an important component of which was the announced intention of the Mayday Coalition, organizer of the demonstrations, to block Washington rush-hour traffic.

During this three-day period, normal police procedures were abandoned. Most of the 13,000 people arrested-including law-breakers caught while attempting to impede traffic, possible potential law-breakers, war protestors engaged in entirely legal demonstrations, and uninvolved passersby and spectators-were illegally de­ tained, illegally charged, and deprived of their constitutional rights to due process, fair trial and assistance of counsel. The court system, unable to cope with this grandscale emergency caused by the police, was thrown into chaos. The scale of arrests-and of official illegality-was unprecedented in Washington. Indeed it has few equals in the 20th Century history of our country. All in all, Mayday was a profound blow to civil liberties, and one in which the federal and local govern­ ments share responsibility.

The report that follows is an attempt to reconstruct Mayday: to P.iece it together chronologically; to identify who was arrested, where, and under what circumstances; to describe the conditions of detention and the conduct of the initial courtroom proceedings; to analyze the role of government, both at the city and the federal level; and to follow the long course of the litigation which inevitably ensued, and which is still being conducted.

The American Civil Liberties Union is fully on the record, both in the press and in the series of cases it has brought to court, that the government's actions during Mayday were illegal. The court decisions so far, which have resulted in the dropping of all but a tiny handful of Mayday prosecutions, have vindicated that view.

The purpose of this report, then, is not to express a view already widely known, nor to seek further vindication. Its purpose is to document what happened and to try to understand why it happened. Without this understanding, we cannot determine whether there were real alternatives to Mayday, or whether illegal actions or the threat of them can only be dealt with by countervailing illegality by government.

1 The material in this report comes chiefly from the more than 1 ,000 affidavits submitted to the ACLU by those who were arrested. The report also draws upon the transcripts of the Mayday litigation, on interviews with attorneys and other volunteers in the detention centers, and on reports compiled by the Public Defender Service and the Mayor's Commission on Human Relations.

This report is being issued more than a year after Mayday. But even though a full year has passed since ·the even'IS described took place, it is stift too early to assess their full significance. It is possible that Mayday will become just a curious historical footnote. It is equally possible that it will set the pattern for govern· ment action from now on. Which course our country chooses for the future will depend in some part on how well we understand what happened a year ago.

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2 I. PROLOGUE TO MAYDAY

In April 1972, the Nation's Capital braced for In 1969, the government attempted to deny a week-long series of anti-war protests which the anti-war protestors a permit to march down demonstrators called "Mayday." Both the govern­ Pennsylvania Avenue. Only the personal inter­ ment and the protesters knew it would be a time vention of Mayor Washington and Police Chief of confrontation. One group of demonstrators Wilson with Justice Department officials made announced that on May .3 it would disrupt rush­ them grant the permit at the eleventh hour and hour traffic which would-in their somewhat prevent a direct confrontation. overblown rhetoric-"stop the functioning of the government." The government responded by In 1970, 200 demonstrators were arrested in announcing that it had drawn up plans to keep the Pentagon Plaza for conducting "masses for the traffic moving "at all costs" and thus-in peace." equally inflated prose-protect "the national existence." Again, in 1970, police arrested 800 individuals at the scene of a peaceful demonstration near the This confrontation was in part a product of Watergate Apartments. The demonstration was the hardening of government attitudes towards held to protest the trial of the· "Chicago Seven" demonstrators-a relationship which had been and the war. In many ways, the police response coasting downhill for at least five years. to Watergate was a foreshadowing of Mayday. 1!1 Police used the sweep arrest technique, in which The high point of government cooperation everybody in the area-demonstrators, bystanders, with demonstrators was the 1963 civil rights students going to class at George Washington "March on Washington" in which almost half a University-was arrested. Unnecessary police million people demonstrated for civil rights violence was common. In the aftermath of legislation in an atmosphere of good will and Watergate-as in Mayday-it was impossible for order. But as the focus of the demonstrations the government to mal{e its charges of "disor­ shifted from civil rights to anti-Vietnam War derly conduct" stick, since they had abandoned protests, the facade of cooperation began to normal arrest procedures. crack. Government officials in both the Johnson and Nixon administrations engaged in a series of These episodes serve as signposts on the road maneuvers designed to deny anti-war protestors to the total breakdown in relationships that was visibility: to come with Mayday. Interspersed with them, there were several demonstrations which went off 'I'' II' In 1967, the government promulgated new without incident. iii regulations drastically limiting the number of demonstrators permitted to gather in front of the The deterioration of the past few years ac­ lit White House or across the street in Lafayette celerated during the weeks of negotiation before ! Park. Mayday. An element in its downward course was

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ll1 the government's failure to distinguish between of Vietnam veterans, many of them seriously the various anti-war groups. It viewed all the crippled during the war, impelled the government demonstrators converging on Washington as a to go back to court four days later to ask­ single entity, and its view was an openly hostile shamefacedly-that the injunction be lifted after one. all.

But there were in fact four discrete organiza· A week after the Veterans' protest, on April tions connected with the May Week activities, 24, and after heated negotiations about the route, which while unanimous in calling for an end to the government permitted the National Peace the Vietnam war, differed sharply as to politics Action Coalition to stage a mass march of and tactics: 200,000 people to the Capitol. Although Presi· dent Nixon angrily told the country a few days The Vietnam Veterans Against the War, later that he would not be "intimidated" by such engaged in peaceful protest and working protests, no attempt was made by the govern· within the system. ment to interfere with the march, and it occurred without incident. The National Peace Action Coalition and the People's Coalition for Peace and Justice, At about the same time that the government both offshoots of the New Mobilization obtained the injunction against the Veterans' Committee Against the War. They had split encampment at one end of the Mall, it granted Into separate organizations because of their permission to the People's Coalition for Peace theoretical and tactical differences. The and Justice for a two-week campout in West former, like the Veterans group, emphasized Potomac Park, at the other end of the Mall. The lawful mass protests. The latter stated that government looked the other way while park the time had come for more militant, regulations and the rules of the permit were vio· dramatic tactics. It was the People's Coali· lated with the pitching of tents and lighting of tion for Peace and Justice which had fires. announced the traffic-disruption action. By the weekend when April turned to May, The Mayday Collective, a radical faction between 35,000 to 40,000 people were camped within the People's Coalition for Peace and in West Potomac Park. On Saturday night, May 1, Justice, which rejected the whole political Justice Department officials advised the People's system as unresponsive. Coalition attorney that they saw no problem with the continuation of the encampment. But at 6 The Vietnam Veterans Against the War notified a.m. Sunday morning, the permit for West the government that it would stage a peaceful Potomac Park was revoked, although there had demonstration on the Mall and would camp out been no formal prior consultation with the overnight there beginning on April 17. The signers of the permit, as required by the permit's government obtained an injunction, prohibiting terms. When the police moved in to clear the the 'Veterans from using the Mall, which was park, they arrested more than 200 people who initially reversed by the Court of Appeals and refused to leave. then reinstated by the U. S. Supreme Court. But after vigorously pursuing the injunction to the The government's action in first permitting Supreme Court, and insisting that the Veterans' large-scale violations of the permit, and then demonstration would threaten the functioning of suddenly revoking it (and closing not only West the city, the government had second thoughts. Potomac Park but all the other parl

4 inconsistent as it seemed on the surface. The goal been charged with "parading without a permit." of the sudden sweep of the Park was, as govern­ Even though Chief Wilson had been refused ment officials later acknowledged, to break up judicial authorization to raise collateral, the the coming May 3 demonstration. The thought demonstrators were required to post $50 each was that thousands of demonstrators would leave with the Police Department in order to obtain the city after the raid. This proved to be a their release. Later that day, the Superior Court miscalculation. held this action unlawful and ruled that collateral should continue at the $1 0 level. The court re­ During the last week of April, the People's leased many of the HEW group on personal Coalition staged demonstrations at Selective recognizance. Service Headquarters, the Internal Revenue Service, the Department of Health, Education, The government hoped to thwart the traffic and Welfare, and the Justice Department. There blocking tactic planned for May 3 a) by waiting were several hundred arrests as protestors blocked for the participants to gather in full strength in the entrances to government buildings, and in one West Potomac Park and then raiding the encamp­ instance, tore down a police barricade. ment and b) attempting to raise the collateral to keep demonstrators from returning to the streets. On April 28, contrary to previous procedures, Jerry Wilson, Chief of the Metropolitan Police In addition, the government placed most of the Department of the District of Columbia, refused 5,100 members of the D. C. police force on full to allow 220 demonstrators charged with block­ alert, brought 4,000 army reservists and 1 ,400 ing Selective Service Headquarters to obtain their National Guardsmen into the city, and stationed release by posting $10 collateral with the police. an additional 4,000 reservists in nearby staging Police Department Counsel Gerald Caplan made it areas. Four hundred U. S. Park Police were also clear that the change was designed to make it alerted. But no one outside the Justice Depart­ more difficult for demonstrators to return to the ment and the top command of the Police streets in what he called "a turnstile type of Department knew how this extra manpower game." Chief Wilson requested permission from would be used. the D. C. Superior Court to raise the collateral required for the disorderly conduct charge ordi­ narily used against protestors to $50. The court As for the leaders of the demonstration, it refused. Instead, the judges of the court uni­ seems evident that they selected the illegal tactics formly set $250 bonds for the defendants and of blocking traffic because of their failure to released them on payment of the usual 10% of make an impact on the news media and policy this amount. with more conventional demonstration tech­ niques; that they saw their tactics as a way to On April 30, 224 persons were arrested on give them the visibility that they had been Independence Avenue outside the HEW building. denied. The leaders clearly expected to be ar­ These HEW arrests were unusual in several re­ rested if and when they blocked traffic; indeed, spects: For one thing, the demonstrators were they depended on it to insure media coverage. In not requested to disperse or given an opportunity any case, they guaranteed police presence by to do so before they were arrested. This was a announcing in advance some 21 locations where marked departure from established practice. traffic would be blocked starting with rush hour ~~! on Monday, May 3. '''i Furthermore, the demonstrators were not charged ~~~~ with any violation at the time of their arrest. !:11 il! Only after Chief Wilson had conferred with Gerald Caplan did the group learn that it had The stage was set for Mayday to begin. I'I 'll 5 II ! ~ I< R, [I I' I I I II. MAY 3: "QUALIFIED MARTIAL LAW"

On May 3, following their well-publicized plan, Among the various threads running through the the participants in the People's Coalition for May 3 affidavits collected by the AC L U, the Peace and Justice traffic disruption tactic were most common is that in certain areas, a great out in full force by 7 a.m. They concentrated on many people who had absolutely nothing to do the areas they had previously stated they would with the demonstration were arrested simply as a block: Dupont Circle, Mt. Vernon Square, means of keeping the streets and sidewalks clear. Connecticut and K Streets, George Washington University, Georgetown, the Lincoln-Washington monuments and the 14th Street Bridge area. In several areas, some attempted to block traffic with trash and by linking arms to form human chains. The original intention had been to engage stalled Dupont Circle motorists in a dialogue over the Vietnam war. But the objective was ignored in some cases, as Diane Curwen, for example, was arrested in the the traffic blockers sang and danced whenever Dupont Circle area on her way to work. She is a they managed to block an intersection. Some did teacher's aide for deaf children at Grant School: not attempt to block traffic; they handed leaflets to motorists who had stopped for normal traffic "The bus I take usually goes down signals. Wisconsin Avenue to M ·Street, but this morning it was rerouted down Massa· Nobody will ever know how many had planned chusetts Avenue. I rode it as far as the to participate in the illegal traffic blocking. For it area of Dupont Circle and got off there became clear immediately that the government's in order to walk back toward G Street. elaborate plans for handling Mayday did not As I came around the Circle, I was very include any attempt to limit arrests only to those upset, not only at the sight of National blocking traffic. Guardsmen lining the Circle, but also at a policeman suddenly dragging a kid into the street, beating him on the Instead, the government elected to clear the head. I never stopped walking and con­ key intersections by sweeping the streets clean by tinued down a side street off the Circle. mass arrests, without stopping to ascertain I started crying. A flank of about two whether the individuals swept into the police net rows of policemen was coming up the were participants, passersby, spectators, etc. street towards the Circle. I was walking Special targets for mass arrest were the young through them when one of them took and the long-haired no matter where they were or my arm and said I would have time to what they were doing. explain myself later."

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First Step in Arrest of Pedestrian, May 3 (note policemen with badges removed)

Ms. Curwen never did get a chance to explain. people should watch the police?" The police She was confined for 30 hours, most of the time officer thereupon arrested him and replied: "If in an outdoor detention center. you want to watch the police, come with me."

Herbert Blumberg, a Ph.D. doing research for Ramella Adams was arrested while walking the National Institutes of Health, was walking through the Dupont Circle area. When she asked around the Circle, observing police arrest why, the policeman said she had entered "a re· methods. He was wearing a yellow "observer" stricted area." Miss Adams protested that she had armband. Suddenly he heard a voice behind him: seen no warning signs. "We are the signs," she "I want this one." And he found himself under was told. arrest. Nancy Craig was arrested in the same area. She Arthur Schwartz, frightened by the many was told that the charge against her was "walking pedestrians being arrested around him, asked a on the sidewalk." policeman if he could cross the street and con· tinue around the circle. The policeman said yes, Barbara Roselyn was apprehended while wait· but another officer arrested him. ing with her bicycle for a traffic light near the Circle to turn green. She was charged with Robert Foster, a 41·year-old government "riding a bicycle on the sidewalk and on the psychologist, was arrested when he asked a street" by the arresting officer. Her bicycle was policeman who had ordered him out of the area, confiscated by the police and, at the time she "But officer, in a democracy, don't you think executed her affidavit, it had not been located.

8 Nicholas Binkley, an attorney studying at the police reached out beyond the sidewalks of the Johns Hopkins School for Advanced Studies, GWU area. helped police clear the streets of debris while on his way to school. On his way through the Charles Howe Ill is a GWU graduate student Dupont Circle area, Binkley witnessed a young and an assistant physical education instructor. He man being clubbed by a police officer. Judging was standing outside the Physical Education by the time, it is likely that this is the same Building when the police sweeps began. He was clubbing incident witnessed by Diane Curwen. not on the sidewalk, but at the top of a flight of Binkley stopped to offer to help the clubbing stairs leading to the building, wearing a jacket victim and he was immediately seized by the which identified him as a member of the Physical neck from behind and arrested. Education Department. Several police squads passed Howe without incident. But then two officers came at him from behind and began pulling him down the steps to the sidewalk. Howe grabbed an iron railing and began calling for help. But the railing pulled loose and Howe was yanked down to the sidewalk. Just then, a George Washington University GWU professor rushed out of the building to advise the police that Howe was an instructor Those arrested at Dupont Circle were not told there. The police told the professor, who had that the area was restricted before they were been teaching at the University for 25 years, that arrested. This was not the case in the George they would arrest him too if he didn't go back Washington University area. Some time during inside, and they dragged Howe to a police mid-morning, the police announced that the GWU vehicle. area was closed to pedestrians and that the streets had to be cleared. The police began making re· Reginald Marshall, Jr., was standing inside his peated marches down the streets in the area, fence-enclosed front yard in the GWU area when sweeping up pedestrians on the way. Chief Wilson the police sweeps began. When ordered by police personally directed this operation. Several ACLU to get inside, he replied that he was not on the affiants heard the announcement and tried to street, that this was his own house and his own leave, but were arrested before they could do so. yard. Before he finished speaking, a policeman vaulted the fence and clubbed Marshall repeatedly Michael and Carol Epstein upon hearing the on the head and neck and shoulders until he lost II announcement, immediately went to get their consciousness. He, too, was dragged to a trans­ bicycles and were arrested while they were port vehicle. Several people called the AC LU to Iii II unchaining them. report this incident. !I I, Several students had moved off the sidewalk Twenty-five patients of the George Washington and were sitting on the steps of the Law School University Hospital were arrested in the sweep.

''.·.1.1II! when squads of police came marching down 20th The hospital administrator stated that these :! street. A group of policemen broke off from the patients were arrested outside the Emergency 1jj rest and began running toward the Law School Room, located on George Washington Circle. steps, and the students ran inside. But the police They had been treated at the hospital and were !I followed and chased the students down the cor­ awaiting transportation when arrested. The ridors. Many people who witnessed this incident administrator said that doctors went outside and say that it was only then they became truly demanded that police release the 25, including frightened. It was not to be the only time that one girl in a cast. The police ignored the request.

9 At the nearby Psychiatric Institute, a private There was a difference between arrests made in hospital at 21st and K, four patients on their way the GWU area and those made at Dupont Circle. to treatment were arrested. While there were some instances of excessive force at Dupont, almost uniformly, accounts Some time during mid-morning, radio broad· from GWU relate a more brutal police approach casts began quoting police and government in both words and action. There were the Mar· officials as saying that everything was "bacl< to shall and Howe incidents and the charge into the normal.'' Such a broadcast convinced GWU l,.aw School. In addition, several witnesses report student Harvey Erdman that it was safe to attend that as police marched through the GWU area, his 11 a.m. class. He was arrested at 20th and G they were swinging their nightsticks at pedestrians Streets. "I said to him that I was going to class and oftentimes finding the mark. and that I could show him my I.D. card," Erdman recalls. "At that, he grabbed me by the pants and brought me to a bus." Several May 3 affiants recall seeing many people with school books on the transport vehicles.

Some arresting officers didn't bother to invent charges against the arrestees. The policeman who arrested Brad Walters at George Washington Circle told him; "Don't worry, we'll think of something Fourteenth Street Bridge to charge you with." When arrested, Walters was returning to Concordia Church, which had been A third high arrest area on May 3 was south of converted to a temporary infirmary, after taking Independence Avenue near the Fourteenth Street a seriously injured person to George Washington Bridge to Virginia. Early that morning, Mayday Hospital. He was wearing a stethoscope. Walters participants made several unsuccessful attempts to was arrested at 2 p.m., five hours after the block bridge traffic, and many of the arrestees Washington rush·hour ended. undoubtedly participated in those attempts. Earlier that day, a police officer encountered However, other antiwar groups had scheduled a Robert Rosen who was driving to work with a peaceful rally at the Pentagon, and many people female companion around George Washington on their way to that rally were arrested before Circle. The policeman berated him for not keep· they got there. ing up with the car ahead. Rosen started to protest, but the officer reached through the For example, a group of students and profes· window and jabbed him several times in the face sors from St. Joseph's College, led by Father ",, !·i with a nightsticl<. A second officer circled the Joseph Daoust, were on their way to the Pen· car, opened the door and stuck a can of mace an tagon when they were surrounded by police inch or so from the woman passenger's nose. scootermen and forced to sit down in the gutter. When Rosen started writing down the badge Several members of the group tried to explain numbers, the first officer said; "Go ahead-we their opposition to the traffic blockade, but the can take anything you can give us."* police wouldn't listen. A few minutes later, with police still tightly ringing the seated group, *Throughout this report, we have identified only police Deputy Police Chief Ted Zanders came by and officers in command positions. The ·names and badge sprayed mace directly into the faces of the seated numbers of a number of other officers are available for students and professors. The act was recorded in disciplinary proceedings and court actions where the the now-famous Ufe Magazine photograph. accused will have· an opportunity to reply. Zanders was smiling.

10 time doing so. But later that day, Rosa put on an fi i armband given him by some Mayday ~ Selective Arrests people he had befriended. The armband was enough to cause his arrest. Rosa was in his car at the time, waiting for a light to change at 19th As previously noted, police tended to concen­ and E Streets. An unmarked police cruiser trate on the young, and on young men with long stopped beside him, a plainclothes police officer hair. David Appelbaum, a GWU student on his got out and pulled Rosa from his car, beating way to attend a Congressional Committee hearing him on the head and shoulders with a nightstick as part of a course assignment, was stopped by while he did so. Rosa was put in the back seat of police at 9th and Pennsylvania Avenue. "We were the police car, his car was moved off the road told that Capitol Hill was no longer open to the and his keys taken by the police. "I have a public and to have a seat on the sidewalk," he prisoner of war," one of the officers radioed, and recalls. Appelbaum asked the officer what the he asked for a transport vehicle. None came, so charges were. The officer replied: "I'm under they started driving through the city to find one. orders to stop all protesters and, in my opinion, you're a protester." Meanwhile, Rosa tried to convince the police he wasn't a war protester: Lawrence and Carolyn Flood were walking !~ i down Pennsylvania Avenue with two other "I then reached in my wallet and ;!I ,, II,, people. A policeman beckoned to the four of handed him my identification card ;j,j them and told them they were under arrest. They from the Melbourne, Florida, Police asked the charge and the officer said "parading Department. I told them I was a police without a permit." They all laughed, including cadet and that I had committed no the police officer. But the Floods stopped laugh­ wrongful act. The driver said: 'That's ing when they were loaded into a police vehicle. tough shit!' We then began turning While waiting for it to arrive, they noticed the down sidestreets, looking for a trans­ police plucking occasional pedestrians from the port vehicle. Somewhere in the vicinity passing stream. The arrestees all were young and of George Washington University, the all had long hair. driver proceeded into a crowd of people in the street and struck four of Timothy Ahern gives this account of his post­ these people, carrying them on the arrest trip to a detention center: "As the bus hood of his car until they fell off. traveled down city streets, an officer in the front After turning left, we found a transport would stop the bus, point to someone (in the unit. The man on my right got out of general pedestrian traffic) and have his men drag the car, the man who had been sitting that person into the bus. One person was arrested next to me grasped me tightly about while taking a picture of the White House. When the right arm and led me toward the we asked the officer why other people walking bus. Another man, a caucasian male down the street were not being arrested, he dressed in blue coveralls, grasped me by explained to us that they were tourists." the neck and began laughing."

But short hair by itself was no protection After Rosa's release from the D.C. Jail and the against arrest. Paul Rosa, a police cadet from Coliseum the next morning, he tried to find the Florida, had short hair. As a police cadet, he had keys to his car. At the police garage, Rosa was volunteered to help police direct traffic during told it would be useless to search through the the early part of the morning and had spent some police cars for the keys since the officers who r

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1111 arrested him could have been FBI agents, or people in the car in front of us we Treasury Agents or from some other branch. He were taken to a bus down the road. hired a locksmith to make him a new key. On When we asked the police if we were returning to his car, he found that the arresting arrested, we were given no answer. .I officer had failed to lock the car and that $400 There were about fifty other people ! worth of camera equipment had been stolen. already on the bus. All of them were :: young." I

Arrests of People in Automobiles Arrest of Medics

Although the acknowledged purpose of th~;~ Dr. Randy Cope and Dr. Michael Davidson, government's sweep arrest tactics was to clear the two coordinators for the Medical Committee on streets of pedestrians, 19 ACLU affiants, Human Rights, which has provided medical aid including Mr. Rosa, were arrested while driving or during demonstrations in Washington since 1963, while in automobiles. were arrested on May 3 while wearing medical armbands. I Joseph Haskell, a systems design engineer for the Apollo Program, was pulled from his car at They had gone into West Potomac Park to Memorial Bridge and sent to a detention center. remove medical equipment as police cleared the Haskell was on his way to work at the time. area. Both men were physically assaulted by police. They stated that police used an axe to Sidney Blumenthal, a consultant for the break open a medical supply box, and scattered American Jewish Committee and a writer for the the supplies all over the field. In addition. thou­ journal, Boston After Dark, was pulled from his sands of dollars of medical supplies were con­ car while waiting for the light to change at fiscated, destroyed or lost, including supplies Dupont Circle. donated by the District Health Department, Civil Defense Department, American Red Cross and private groups. Michael Ross, an American University student, was also pulled from an automobile. He recalls his experience: Dr. Cope and Dr. Davidson charged that although police had promised access through police lines to all doctors and registered nurses "I hitched a ride with some young wearing Public Health Department armbands, people from New York. The driver of those wearing such armbands were frequently the car got lost and crossed the Chain arrested. Bridge into Virginia. We turned around and came back across the bridge ...The police (of whom there were many in the area) stopped the car in front of us "Why Am I Being Arrested?" and then our car. A policeman told us to get out. There were four people Of the 723 ACLU affiants (covering May 3, 4 besides myself in the car. The driver and 5) who answered the question, "Were you asked the policeman why we had to get informed of the nature of the charge against out and the policeman grabbed his shirt you?" 529 said "no." Of the 194 who answered and shouted for us to get out. With the "yes" more than half were told one charge by

12 the arresting officer and charged with something Bazelon and Harold Greene. Called the District of else when arraigned or released. Not a single Columbia Committee on the Administration of affiant was advised of his or her legal rights at Justice under emergency Conditions, the commit· the time of his arrest. Affiant Barclay Colt states: tee had conducted an exhaustive study of the "The arresting officers never said any· 1968 disturbances, including the failure of law thing to us. Never told us we were enforcement officials and the courts to cope with under arrest. Never asked us our names the emergency. Among its recommendations or addresses. Never filled out any arrest submitted in May, 1968, was the creation of a forms or photographed us. Didn't tell field arrest form, accompanied by a polaroid us where they were taking us." photograph of the arrestee and the arresting officer, to substitute for the time-consuming, When Patricia Arnold was arrested at Dupont more cumbersome form used in a single arrest. Circle, she asked one police officer after another what the charges against her were. No one replied A great deal has been written and said by until just before she was herded into the police police spokesmen and their sympathizers in the van. Then an officer told her that only her arrest· Press about the reasons for not using the field ing officer could tell her the charge against her. arrest form on May 3-the gist of it being that in She asked for her arresting officer and was told an emergency such as Mayday, normal procedures that there was no way of telling who that might had to be abandoned. be. Elizabeth Jamison spent 58 hours in confine· But the fact is that the field arrest form is not mer\t after her arrest. She was outside for sixteen a normal procedure. The April 1968 disorders, hours of that time and spent a week in the out of which the field form was developed, in· hospital after her release with a serious case of valved several elements-at least 20,000 partici· pneumonia. In the ACLU affidavit, Ms. Jamison pants, violence, arson, no opportunity for supplied details of her arrest, concluding: advance planning-which made them a far greater "Actually, I'm not sure I really was arrested." emergency. The field arrest form was designed She went on to say that she had never been told specifically for use in such severe emergencies. of the charge against her. But in the much more controllable circumstances of May 3, the field form was not even tried. Not a single May 3 affiant had an arrest form filled out by an arresting officer. The Field Arrest Forms Whatever the motives for abandoning the field Starting at 6:30 a.m. of May 3, field arrest arrest form on May 3 were, the results were soon forms and polaroid photographs, designed to be to be evident: chaos in the records of who was titl!l used in mass arrest situations, were abandoned. arrested, where and by whom; chaos in the deten· Chief Wilson did not give the order to resume tion centers; chaos in the courtroom. '!l~i their use until 5:40 a.m., May 4. iL r1r 1! By the end of May 3, over 7,000 had been 1 The field arrest form and polaroid photographs arrested. The circumstances of their arrests-in I;II were procedures developed from the disorders in which no attempt was made to separate wrong· Washington which followed the murder of Dr. doers from innocent bystanders, and procedures liq.. ·i.l' Martin Luther King. A high level committee was to identify those arrested or collect evidence i!.1' appointed by Mayor Washington, Attorney against them were abandoned-will be the subject General Ramsey Clark, Chief Judges David of controversy for years to come.

13 I I Two days after the May 3 arrests, then As­ disasters. It is not an appropriate reaction to a I sistant Attorney General William H. Rehnquist traffic blockade. By invoking the doctrine of (now a Supreme Court Justice) defended the "qualified" martial law the government was suspension of arrest procedures because of the attempting to eat its cake and have it too: to "extraordinary circumstances." The mass arrest avoid a formal proclamation with its legal require­ tactics, he said, were justified by the doctrine of ments, but to impose the conditions of martial "qualified martial law." This is an extraordinary law in fact. This doubletalk was a forerunner of statement from one of the chief law officers in the tortuous line the government was to pursue !I.,, in court to justify its actions. I the country. There is no doctrine of "qualified" martial law. The declaration of martial law re· quires an official proclamation which informs the In a very real sense, government-at least that population of the temporary suspension of part of government concerned with the adminis· certain rights, privileges and immunities. No such tration of justice-was brought to the point of :i; proclamation was made, and no conditions were collapse during May Week. But it was not the stated as having been present to necessitate such demonstrators and their unsuccessful traffic a proclamation. Martial law is an extreme remedy blockades that accomplished this. It was the reserved for armed insurrection or cataclysmic government itself.

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14 Ill. MAY 3: POLICE VIOLENCE

Mayday arrests were not accompanied by the kind of wholesale police brutality which marked the Chicago police outbreak during the Demo­ cratic Convention of 1968. On the other hand, the claim of several government spokesmen that "no one got hurt" is untrue. Analysis of the ACLU affidavits shows the following breakdowns:

509 affiants said they were not subjected to undue force during arrest.

119 said "some" force was used-pulling and dragging. ~~I 54 said excessive force was used, but which did not result in bodily damage (shoving, dragging people by the hair, breaking glasses, etc.)

58 indicated the force was violent: clubbing, striking with fists, etc.

In a companion question, affiants were asked whether they witnessed force used against others:

43 said they witnessed none; 25 said they witnessed some force; 47 said they witnessed excessive force; and 106 said they witnessed violence. A comparison of the time, place and circumstances of the arrests indicates that some of the affiants were describing the same incident witnessed by others.

Officer Without Badge With Tear Gas Launcher and Projectiles, May 3

photo by James Adams

15 Tear Gas at Washington Monument, May 3 photo by James Adams

Four ACLU affiants were arrested by police in number arrested, that is, fifteen times as many as blue coveralls; 41 by plainclothes policemen; and our affiants reported. 59 by uniformed officers who were not wearing badges or name tags. Predictably, reports of Most of the affiants describe the use of tear police violence often involved these coverall, gas or mace in situations where it served no plainclothes or unidentified uniformed officers. legitimate law enforcement purpose. It was used not only to disperse crowds, but also against It is not possible to estimate accurately just people being arrested who were not resisting. It how widespread police misconduct was during was tossed in the Lincoln-Washington memorial Mayday. The figures cited previously for officers areas, in Georgetown, at George Washington without badges, as well as for those officers University and at Dupont Circle at times when engaged in violence are taken from the statements neither arrests were being made nor crowds being of the 711 affiants who were arrested on May 3 dispersed. and May 4, out of a total of more than 10,000 arrested those two days. (Only two episodes of police violence were reported on May 5.) The Park Police It is reasonable to assume that there were many times the number of episodes of miscon­ duct and violence than those reported by the The Park Police Force was singled out by many ACLU affiants. But of course we cannot say ACLU affiants as having been involved in the whether these were in proportion to the total largest number of episodes of unrestrained and

16

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lnterior Department Car, May 3 (2 plainclothes policemen, 2 uniformed policemen, 14th Streed photo by James Adams

unprovoked brutality. Official automobiles of the Department cars, each carrying four men dressed U.S. Park Police are light green. Some are clearly in business suits. marked "Police" and carry large red lights on top. Others have no lights and are marked only One photographic sequence, taken by James with a small "Park Police" emblem on each door. Adams on the morning of May 3, shows a Park Still others have no markings at all. The Park Police car, carrying two plainclothesmen and two Police is a branch of the U.S. Interior Depart­ uniformed policemen running through several ment, and this agency has other light green groups of pedestrians along 14th Street. Accom­ official cars not assigned to police use. These panying Adams at the time he tool< the photo­ automobiles are usually distinguishable from graphs were Mrs. Kathleen McVey Finney, a private automobiles by the letter "I" on their Harvard University student preparing for a Ph.D. license tags. They are assigned to several Interior in Religion. She describes what happened: Department branches, for example to White "I intended to join a group which House gardeners, who are Interior Department would march from the Monument employees. grounds across the 14th Street Bridge to the Pentagon ...To my knowledge, Photographs obtained by the ACLU show no one had broken any laws, not even numerous Park Police and other Interior Depart­ jaywalking laws. Unmarked police cars ment cars throughout the city on May 3. Some began driving into the larger groups, of the photographs show several different Interior calling out threats through a bullhorn.

17 The men in the cars, some in uniform, my pants and cutting my knees very shouted: 'Break it up. Break it up. badly. We're not going to take any shit from you people today.' Any time that more "I blacked out for a few moments than three people gathered on the grass, and when I came to, I was lying across the cars headed for the group. They the hood of one of the police cars and were driving at 30 mph to 40 mph. the club wasn't across my neck and my They headed right for someone and arms were free. They picked me up a followed him until he hid behind a little from the hood and threw me back tree. I didn't see anyone hit, but the down against it and handcuffed me. cars came very close to a lot of people, They threw me into the back of the going very fast. The drivers seemed to car. In the front seat there were two be engaging in some kind of sport." men wearing some sort of gardener or caretaker uniforms. I struggled into a Later in the day, members of the Park Police sitting position on the back seat and were singled out by witnesses as having engaged one of the. men in the front told me to in numerous clubbings in the 14th Street area. lean forward. I did slightly and he grabbed my collar, pulled me over ' And the ACLU received reports from several " women arrestees of uniformed Park Policemen across the back of ·the front seat and searching them repeatedly and "most thoroughly" hit me in the teeth with his fist. I fell before they boarded the transport vehicles and into the back seat and he laughed. during their rides to detention centers. There "Two policemen then got into the were no similar reports involving members of back seat next to me and we drove other police units. away from the other car. The police started talking about taking me to a David Brennan, an FBI employee, relates his lumber yard near the river, working me encounter with two U.S. Park Police patrol cars. over and then throwing me into the Brennan was standing alone beside Rock Creel< river with handcuffs on my legs. At Parkway, holding a "peace" sign. first I thought they were just trying to scare me, but after a while, we did "I put down my sign and noticed the drive into an area near the river where l" Park Police from the second car coming there was a boathouse and a lumber­ toward me, and those from the first yard. At that point I began to get car coming up behind me. So I put my extremely frightened. One policeman hands in the air and said: 'I surrender.' said: 'I've got a pair of handcuffs here. One of the police then grabbed me by Let's put them on and throw him in the hair and knocked me down. An· the river and forget about it.' The other one said: 'Let's make it so he second policeman said: 'No, I want to can't walk anymore.' One of them kept get in a few licks first.' They started hitting me in the back of the neck with dragging me out of the car. But then a his club. He then put the club across group of young men walked out of the my neck and pulled both my arms up boathouse. The first policeman sud­ over it. They kept yelling and yelling. I denly said: 'No, we better not do this.' kept screaming: 'You don't have to do They got back in the car and filled out this. I'm not fighting you.' They started some sort of form and took me to the dragging me over the pavement, ripping precinct jail at 23rd and L Streets."

18 Hospital records show that Brennan suffered a counter with police from "some federal agency." I lymphatic infection in his knee and hip, a badly He was removing some things from the trunk of sprained ankle, and numerous contusions. Several his car which was legally parked near 27th Street, weeks later, he was walking by the White House N.W. Two patrol cars drove up and a police with a friend when he recognized a man working sergeant, wearing no badge or other identifica­ on the lawn there as one of the two men in the tion, got out of one of the cars. "What are you front seat of the patrol car. The groundskeeper doing parking on my beat?" he yelled at Vernon. seemed to recognize Brennan, stared at him for Before Vernon could reply, the sergeant grabbed several seconds and then turned quickly away. his coat, tearing off all the buttons but one and began hitting him repeatedly with a nightstick. AC LU affiants Dan and Jay Hauben were Finally, the sergeant released him and Vernon pulled from their cars by four occupants of a quickly started for the driver's seat. But once Park Police car in West Potomac Park. It was the again the policeman began hitting him with the :'II morning of May 3 and the Haubens had just nightstick until Vernon finally managed to close picked up two boys who were fleeing tear gas the car door and drive away. During the scuffle, fumes. The Haubens' assailants were wearing gas he had managed to get the license numbers of the masks and business suits. They later identified police cars, 5190-1 and 23. They are patrol cars themselves as Pari< Police. Jay Hauben was pulled of the U.S. Park Police. from the driver's seat by his hair and thrown against the front of his car. "That pretty face William Jones, Jr., Bob Lewis, Linda Hoefert doesn't have long to last," one of the policemen and Joan Kraynanski came from Youngstown, Iii screamed at him, tying his hands behind him with Ohio, to join the Mayday demonstrations. Their ;j," 1. ~ ; plastic wire. original intention had been to blockade traffic at ~I: l'· the Theodore Roosevelt Bridge. They parked :!/· Fifteen·year old Dan Hauben was pulled from their car on 17th Street and walked toward the r1j the middle of the back seat by his hair, punched lk Lincoln Memorial. But the large number of police ':!!1

·11'· ..'1' and then clubbed in the face, thrown to the near the Memorial discouraged them and they 1lii)l ground and kicked in the groin. Three women decided to go back to their car and leave with the Haubens, one of them Jay Hauben's Washington. wife, were pulled to the opposite side of the car. Dan and Jay Hauben could hear them screaming. On their return walk along the Reflecting Pool, two Park Police cars came at them from behind Medical reports confirm that Dan Hauben 1,111 along the grass. The occupants of one car threw a suffered a double fracture of his nose on May 3. tear gas cannister at the group and drove away. The occupants of the Hauben car were taken to The second car pursued William Jones. Four Park the Third Precinct, where an arrested medic Policemen jumped out and clubbed him repeat­ managed to stop the bleeding from Dan Hauben's edly with their nightsticks until he lost conscious­ nose. Coincidentally, David Brennan was taken to ness. Joan Kraynanski first screamed at the police the same jail. His affidavit tells of a young boy to stop, but when they made a move in her on the floor of one of the cells, bleeding direction, she followed the others to the safety of profusely. It was probably Dan Haub2n. some bushes. When the Park Police went away, they rejoined Jones, who was stunned and Some affiants from out of town were vic· injured. Now the group was more anxious than timized by Park Policemen although they could ever to leave the city. But Jones had been struck not identify them as such at the time .. Steve severely in the kneecap and couldn't walk very Vernon from Lansing, Michigan reported an en- far. They sat down to rest in front of the Pan

19 American Building. Their encounter with the Park About a mile north of Dupont Circle, John Police was over. But an even worse encounter Wentworth was standing on the balcony of his with the D.C. Police was to come. Columbia Road apartment. He was watching a group of youths passing out leaflets to motorists waiting for a traffic light to change. Suddenly, Wentworth saw a car coming up Columbia Road Unidentified Police at high speed. The car headed directly for the leafletters, screeched to a stop and two men wearing old clothes 'leaped out waving nightsticks. Some people who were assaulted by the police The youths ran away and the two men jumped on May 3 did not have a chance to memorize back into their car and sped away after them. license plate or badge numbers or to distinguish Wentworth did not get the license number but he between the various police uniforms. Joseph recalls the car, a Ford, either white or pale green. Collins and Sidney Anson, two magazine writers, were getting out of a taxi at the Lincoln The license number of the Dupont Circle auto­ Memorial when they were charged by several mobile, verified by several witnesses, is attached policemen. Anson was immediately knocked to to what a Motor Vehicle Bureau clerk describes the ground, maced in the face and handcuffed. as "a security car." The clerk's response to a Collins ran for safety behind a hedge. But a request for information about it: "I don't care policeman pursued him, struck him with his fore­ who you are, you're not going to find out about arm, threw him to the ground, handcuffed him that number." with plastic wire and dragged him to a transport vehicle.

The policeman put Collins face-down in the center aisle of the bus and, during the ride to the detention center, the same officer walked over D. C. Police Collins' back several times. The plastic wire had been secured so tightly around Collins' wrists that Other incidents of police misconduct on May 3 he suffered permanent nerve damage in one hand. involved police officers who were clearly identi­ Collins reports that the arresting officer used fiable by uniform as members of the D.C. obscene and threatening language to all the Metropolitan Police Department. One of them arrestees on the bus. There are similar reports involves the four people from Youngstown­ about the behavior of officers on transport William Jones, Bob Lewis, Linda Hoefert and vehicles from May 3 arrestees which specifically Joan Kraynanski-whose encounter with the Park identify the officers on the buses as Park Pol ice­ Police was described earlier. men, but Collins could not so identify this one. Just as the group sat down to rest, a squad of An incident involving the occupants of govern­ about twenty Metropolitan Policemen, wearing ment vehicle, a white Ford, license tag 519075 riot gear, came down 17th Street. One of the (D.C.) which carried two men in old army jackets officers asked the group to move. They got up around the city on May 3 was the subject of and began walking away. They didn't get very eight independent reports. These reports state far. that the car pulled into Dupont Circle, its occu­ pants got out and clubbed two young men and a "Do we want those motherfuckers?" one of girl to the sidewalk with nightsticks, turned the the officers screamed. "Yes," the squad replied, three victims over to uniformed police and left. and several policemen ran after the group. They

20 tried to run. Joan Kraynansl

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22 11;1:!

IV. MAY 4: AN UNLAWFUL ASSEMBLY

On the morning of May 4, there were a few people could not hear all of the speeches, so they attempts at further traffic blockades, and some just sat in the sun and spoke among themselves. scattered arrests resulted. There were also several Some stretched out and dozed. Many of the arrests of groups of long·haired youths on the ACLU affiants who attended the meeting were streets in which no blockade was threatened. But, not protestors. They saw the crowd, came over to in general, the government adopted two tactics find out what was happening and decided to which it had not employed on May 3: it cor­ watch for awhile. Some of the affiants empha­ doned off key intersections and bridges which sized that they stayed because it was peaceful I made blockading impossible, and, instead of and everyone seemed to be having a good time. But outside the barricade, it was not so tranquil. !11 arresting protestors at some other intersections, it 1.1, simply ordered them out of the area. The main ~~ focus of anti-war activity on May 4 was a mass On the fifth floor of the Justice Department, I'' I'll' gathering at the Department of Justice. Police Chief Jerry Wilson and Deputy Attorney " General Richard Kleindienst were conferring. By There was an initial protest meeting around noon, when it had become apparent that the noon at Franklin Park, at 14th and K Streets. traffic blockades they anticipated would not illfi Most of those who attended joined in the march materialize, the government forces were with­ to the Justice Department. The marchers took drawn from bridges and key intersections. 11 special care to keep on the sidewalks and obey all Metropolitan Police were deployed to escort the lll traffic signals. Along the way, police assisted the march from Franklin Park and to contain the march by stopping motor traffic now and then, Justice Department rally. FBI units were sent out III and by generally escorting the marchers en route. in search of John Froines, a Mayday leader whom ~~~ the government intended to arrest on charges of .Iii The group arrived at the Justice Department having conspired to interfere with the civil rights J.i,, at about 1 :30 p.m. A large number of people had of Washington motorists and pedestrians. (The i:l already gathered there and speeches were being government had arrested Rennie Davis on the given over a small amplification system. The same conspiracy charge the day before.) I jl police had closed off 1Oth Street between ,It i~' Soon after the Franklin Park group arrived at Pennsylvania and Constitution Avenues to all !l:!il motor traffic so that the meeting could be held the Justice Department, Chief Wilson ordered iil'.l''l arrestee transport vehicles to the area. Six buses ~ I I there. When the marchers arrived from Franklin !:.1! Park, the police opened the barricades on the were moved to 1Oth Street and Constitution

Pennsylvania Avenue side to let them in. Avenue, six to 1Oth and E Streets, and two to ::11,'1 3rd and C Streets. A short time later, 120 Civil ill It was a sunny day, and despite the tensions of Disturbance Unit policemen, in full riot gear, :·t the day before, the crowd was in a happy mood. I"' were deployed on both the Pennsylvania and 1:-1:; There was singing and chanting. Many of the Constitution Avenue sides of the Internal

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Justice Department Arrests, May 4 photo by James Adams

Revenue Service Building on 1Oth Street, oppo­ At 2:40 p.m., the FBI radioed that it was site the Justice Department. The building kept ready to pick up John Froines. Within seconds, the police out of the view of the demonstrators. riot police moved out from behind the Internal At 2:18 p.m., an undercover FBI agent spotted Revenue building and closed off 10th Street at John Froines among the demonstrators. Two both ends. They immediately began putting on minutes later, Kleindienst summoned Chief gas masks. At 2:40 p.m., the FBI radio an­ Wilson, who had been overseeing deployment of nounced that police would be moving into the his men, back to the Justice Department. crowd "to lock everyone up." During the follow-

24 ing four minutes, FBI undercover agents slipped mace caused me to lose my clarity of through the crowd and arrested Froines. vision and my ability to move. I remember standing up and putting my At the same time, the riot police at the hands on my head, at which point a Pennsylvania Avenue end qf 10th Street dropped police officer struck me with a night· at least one tear gas cannister and charged into stick in the stomach. I doubled over the crowd. Seth Many was among the first to feel and fell through the police lines where the impact of the charge. He was clubbed and an unidentified civilian led me to dragged between two lines of police where two Pennsylvania Avenue where I collapsed policemen continued to club and punch him as on the sidewalk. I was not arrested." he lay on the ground. Several other ACLU affiants described how Sandra Carter, another ACLU affiant, was also they were clubbed, pushed or maced during the caught up in the charge. She recalls: police charge from Pennsylvania Avenue. Macy

was the only one to escape arrest. '!!~ "I was grabbed rather roughly by a policeman and pulled into the police Several newspaper accounts report an incident line. He hit me in the side several times which occurred at this time. William C. Sullivan, jj with his club and then pushed me a top FBI official, seized a youth outside the away. I was then caught between two 'II! Justice Department and dragged him into the " lines of police, I saw two police officers courtyard. Before the courtyard doors were f bending over one demonstrator who closed, witnesses and reporters saw Sullivan and was on the ground, beating him with several agents on top of the youth, who was lying clubs." on the ground. Later, Sullivan referred to the incident as "just a little sport." Robert Poususney and his wife, Cathy, were a i' few feet away from the police line. Although After the initial charge, the police line drew they were not assaulted, they witnessed "a couple 11 back. The charge and the clubbings took only a I~. 1 of policemen pushing a woman and beating a few minutes. Meanwhile at 2:43 p.m., Chief man who had long hair." The victims were Wilson had ordered arrests to commence "in five probably Seth Many and Sandra Carter. minutes." At 2:45, he directed an armored police car to enter the area and order the demonstrators Jeffrey Macy was also near the police lines to disperse or be arrested. According to both the when the charge began. He relates in his affidavit: FBI and Metropolitan Police radios, the an· nouncement to disperse was made at 2:47 p.m. "When the police line began to move, I "This is an unlawful assembly," the announce· placed my arms over my head and bent ment began. my head forward onto my legs. At this point, I was struck by a police officer's Available radio logs do not pinpoint the exact nightstick across my back. I was then time that arrests were actually begun. A free· struck by the same officer on the head. lance photographer who was outside the police I picked up my head to see what was perimeter noted the time lapse between an· happening and another police officer nouncement and arrests as three minutes. He sprayed mace, first in the direction of recorded the announcement at 2:47, which coin· my face and then into my ear. My cides with the police radio, and the commence· recollection fades at this point. The ment of arrests at 2:50. That the period in which

25 r;l -··------~

people within the police lines were permitted to Other affiants relate how rumors of police leave was either very brief or non-existent is clubbings and macings convinced them that it supported by statements of ACLU affiants. would be safest just to stay put and not risk injury. Still others say they were told by their Lynn Bell was sitting with five of her friends companions that people were being turned away in the crowd. When they saw the police lines from the police lines and that it would be useless forming, they became frightened and went to the to try leaving. Pennsylvania Avenue end of 1Oth Street. The police officers there were donning gas masks, Observers standing outside the police perimeter apparently in preparation for their charge into on Constitution Avenue stated that about twenty the crowd. They refused to allow the six young people were allowed to leave the area after the women through and told them to try the other announcement was made. According to these lid end of the street. At the Constitution Avenue observers all of the people who passed through end, they were again refused permission to exit. were dressed in business suits. People on the They sat down in the middle of the street and Pennsylvania Avenue end did not see anyone waited to be arrested. being allowed out there.

Dr. Kendall Marsh tried the Constitution Most of the people at the center of the demon­ Avenue side first. "I asked three officers if I stration said that because of the chanting there could leave pursuant to the police order to dis­ ;!!, they did not hear the announcement to disperse. perse," he recalls. "I was refused each time. I then went to the north end of the street and It appears that the police lines were not really asked permission to leave twice and I was refused open for even those few minutes, and that only twice." Dr. Marsh then sought out a policeman well-dressed people, undercover agents or media who arrested him. He realized that arrest was representatives were allowed through. And there inevitable and he wanted to be processed as soon is no doubt at all that there was no real chance ' as possible. for everyone who wished to leave and avoid i. arrest to do so. There were 3,000 people sitting 'i··' ill,: Most ACLU affiants did not try both ends of in the area and getting out meant walking over i\ the street. Many of them on the Pennsylvania and through that crowd. Avenue end concluded after the initial police charge that there would be no hope of exit, at Added to the physical crush was the confusion least from that end. Some of these people went caused by the initial police charge and the sight as quickly as they could to the other end of the of police with gas masks. Also, the protest street, where they were turned away. Others say leaders, fearing that 3,000 people surrounded by the police charge convinced them there would be riot police might panic, tried desperately to keep no exit from either end. the crowd calm and seated.

John McClure asked a police officer how he The chronology of the events at the Justice could get out and the officer pointed to the far Department makes it clear that the order to corner of the Constitution Avenue police line. disperse was purely pro forma; that the govern­ "We worked our way through the crowd," ment had no intention of permitting the McClure wrote. "But when we neared the demonstrators to leave. The personal supervision specified corner, a young man in front of us was of the operation by Chief Wilson and the clubbed into the bushes when he attempted to presence of Justice Department officials on the leave." scene is totally inconsistent with the suggestion

26 i\1

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Closing Off The Justice Department, May 4 II: photo by James Adams \ 'III II that the lack of opportunity to disperse was the decision to arrest the Justice Department demon­ v result of a breakdown of police communications strators was made before or after the Franklin il and strongly suggests a planned government Park marchers arrived. I: strategy of arresting as many demonstrators as l!j possible.

What remains an open question is whether the The Field Arrest Forms police deliberately led the group of marchers I from Franklin Park into the area so they, too, Unlike May 3, a field arrest form was filled out I could be arrested. On the one hand, for almost and a polaroid photograph was taken for each an hour after they arrived, people were free to person arrested. When first announced in the enter or leave the area. On the other hand, trans­ press and in the courtrooms, it seemed that the port vehicles for arrestees were being stationed government would have the evidence to justify its around the peri meter as the marchers were arrests as it had not been able to do the day arriving. The unanswered question is whether the before.

27 I saw him there committing the wrongful act and But closer examination of the arrest procedures I made the arrest." It also is designed to protect proved them worthless. A significant number of the accused from anonymous accusers and from policemen on the scene had removed their badges and other identification. Instead of ordering all police misconduct. police officers to replace their badges, the govern­ But for most, if not all, of the May 4 arrests, ment simply assigned a few officers to pose for the police officer in the photograph would only photographs with arrestees, others to fill out be able to say: "Yes, this is me. But the arrestee arrest forms, and the remainder to make the was brought to me by someone else, and that actual arrests. other officer told me ... " What some other This process defeated the purpose of the arrest (unidentified) officer might have said is not form-photograph procedure. That purpose is to proper evidence in court. identify the person being arrested as the in­ dividual who was doing something wrong, as According to the statements from government identified by the officer who filled out the charge officials as reported in the newspapers, 2,700 on the form and who was photographed with people were arrested at the Justice Department him. The officer, in testifying in court, should be able to say: "Yes, this is the arrestee, this is me, on May 4.

..

28 '

v. MAY 5: THE STEPS OF THE CAPITOL

The final mass Mayday arrests were made at Led by the Congressional delegation, the the United States Capitol on May 5. marchers moved onto the Capitol grounds, up one of the access roads and finally onto the The events leading to the arrests began in early House steps. They reached the steps shortly afternoon with a mass meeting on the Mall. before 3 p.m. It took several minutes for the During the meeting, it was announced that a marchers to fill the steps and find seats. There group of Congre~smen had agreed to meet the was a delay of several minutes more while the anti-war protesters on the steps of the House of small amplification system used by the demon­ Representatives in order to receive a People's strators was located and brought to the top of Peace Treaty from the protesters and to partici­ the steps. Police photographs establish that the pate in an accompanying ceremony. first speaker of the day, Congressman Charles Rangel, began his address shortly before 3:10 After the announcement, those going to the p.m. Capitol formed a line and proceeded to Inde­ pendence Avenue and then uphill towards the Meanwhile, on orders from Chief Powell, In­ Capitol. The marchers stopped for all traffic spector Xander went to the office of House lights and stayed on the sidewalks. Again, they Speaker Carl Albert to advise Albert's aide, were assisted en route by members of the Metro­ Michael Reed, that "a group, loud and boisterous, politan Police and the U. S. Capitol Police forces. were going onto the steps." According to Xander: "Mr. Reed went onto the House Floor (presum­ When the front of the line reached the inter­ ably to get instructions from Mr. Albert}. He section of Independence and New Jersey came back and told me that if the group was Avenues, at the entrance to the Capitol grounds, being addressed by members of Congress not to at about 2:50 p.m., it was stopped by Inspector disturb them." Herman Xander, a Metropolitan Police officer permanently assigned to the Capitol Police. Police radio logs show that at 3:15 p.m., Xander asked why the group was approaching Xander radioed his associates to locate Chief and was told that a Congressional delegation had Powell and advise him that the Speaker did not agreed to meet with it. At this point, Reps. want the group disturbed. According to Xander, Ronald Dellums, Parren Mitchell and Bella Abzug he located Powell himself a few minutes after the came down from the Capitol to meet with radio message was broadcast. When Powell heard Xander. They confirmed the fact that they had the Speaker's instructions, he immediately went arranged to meet with the group on the House into the Capitol himself and found Zeke Johnson, steps. Xander then radioed James Powell, Chief Sergeant at Arms of the House of Representatives. of the Capitol Police. Powell advised Xander to He told Johnson that he wanted to remove the allow the group to proceed. group from the steps and he requested the

29 Presentation of "People's Peace Treaty", Capitol Steps, May 5 photo by P. B. Lee

Speaker's authority to do so. Johnson relayed the of Congress." If it was, then the protestors had message and Speaker Albert gave his approval. forfeited their right to be there, and were legiti· Albert was not told that members of Congress mately subject to arrest. If it was an orderly were in the middle of addressing the group. gathering which did not interfere with Congres­ sional activities, then the protestors had every Powell returned to the House steps and, at right to be there. 3:28 p.m., after consulting with Chief Wilson on the scene, he ordered his men to begin making arrests. As this order was given, several lines of The Capitol steps constitute a traditional riot police sealed off the area. According to news· gathering place for large groups of every descrip· paper accounts, 1,200 people were arrested. tion. There are frequent non-political rallies­ school children, Girl Scouts, marching bands, The crucial question about the Capitol Steps escorted tours. The steps are also used for arrests turns on whether the gathering was, as the political protests: policemen petitioning for government claimed, "disruptive" and an "in­ higher wages; anti·war groups; anti-busing groups tolerable interference with the proper functioning and so on.

30 The .question of the temper of the crowd was Congressman Charles Rangel was speaking to the exhaustively explored during the trial of eight crowd. (As part of normal police procedures the defendants arrested on the Capitol steps. The precise time each photograph was taken was strongest testimony to support the government's noted on its reverse.) Police photographs also contention that it was indeed a "disruptive" showed Reps. Abzug, Mitchell, and Dellums gathering came from Chief Powell. At one point, addressing the group after Rangel. The Congress­ during direct examination, Powell told the jury: men's testimony was that Rep. Abzug was still giving her speech when the arrests began, and "At that time, the behavior or the that the crowd was orderly when it arrived and conduct, the noise was what it had quiet and attentive while the speeches were going been. If anything, it had gotten worse. on. Rep. Dellums testified on these points: I could not discern any person making a speech to the group. They were just 0: Could you describe for the jury what the chanting and cheering and some groups conduct of the group was as they went singing and some groups clapping their onto the steps? hands. And the microphone was ap· ,, parently being used to pick up the A: People were just walking up the steps. noise produced by these chants and The noise level in fact was very low l!ll cheers." because people were coming on the steps .:ji: in groups of two, three, five or maybe ten Powell was describing the situation which he people, so it was small groups just walking 1!!1··11 said existed some time between 3:00 and 3:30 up the stairs. I don't know any other way ~~! ·: p.m., after he had returned from speal

,, Chief Powell's testimony was supported by 0: During the speeches, would you charac­ lill! Assistant U. S. Attorney Gilbert Zimmerman. terize for the jury the conduct of the il Zimmerman testified that no Congressional crowd. speeches were made until after 3:28 p.m. He too characterized the gathering with phrases such as A: It was a crowd, not unlike hundreds of "great commotion" and "extremely disorderly crowds I've addressed, political rallies, and unruly group." speeches I have given. It was a normal crowd outdoors hearing a politician speak. The defense countered the government wit­ They applauded when we made relevant nesses by introducing police photographs which comments and they cheered where we showed, contrary to the testimony of Powell and made comments they agreed with. For the Zimmerman, that Congressional speeches had most part they were listening very care­ been in progress since at least 3:10 p.m., when fully to what we had to say and they

31

11 :11 reacted when they felt it was appropriate ways of the Capitol was usually much more to react. distracting than that from the May 5 demon­ stration. Most of the government witnesses Rep. Dellums then went on to testify at some conceded that they had learned to live with a length about other demonstrations, including high level of everyday noise and distraction, an some which had taken place on the Capitol steps inevitable concomitant of working at the Capitol. which were much noisier than the May 5 meeting. Finally, the defense introduced a sound film of the 120-member Los Angeles Chinese Drum and Rep. Dellums' testimony was supported by Bugle Corps playing on the steps of the Capitol four weeks later. All of the witnesses had to Eric Marcey, an Assistant U. S. Attorney wh~ was with Gilbert Zimmerman at the Capitol steps. agree that the sound it made was substantially Marcey testified that Bella Abzug was speaking louder than that of the May 5 gathering. while the arrests were being made and on cross­ examination he also contradicted Powell, Zimmerman, and other prosecution testimony about the behavior of the crowd:

0: During the time the crowd was being The Order to Disperse addressed by speakers, would it be correct to characterize the crowd as orderly at Chief Powell testified that he announced to the that time? crowd at 3:00 p.m. that "this is an unlawful assembly" and warned the demonstrators to A: In the sense that any crowd of that size disperse or face arrest. Eric Marcey, the Assistant listening to political speeches would be U. S. Attorney, was standing next to Powell at orderly. the time and confirmed that Powell did make the announcement. But at 3 p.m., the crowd was still 0: And by that you mean that they were coming onto the steps and settling into seats. seated almost entirely? Marcey testified that most of the people on the steps could not have heard the announcement. A: Except standing for applause occasionally. Chief Powell testified that he made a second ,0: Let me focus on the Congressmen's announcement when he returned from his con­ speeches for a moment. I take it while ference with Zeke Johnson. Powell set the time they, as you indicated, were speaking, the of this second announcement at 3:14 p.m. This crowd would be quite attentive? part of Powell's testimony is demonstrably untrue. A: Yes. According to both Powell and Xander, the Defense attorneys then introduced testimony second announcement was not made until after from several members of the House Ways and (1) Xander radioed the Speaker's instructions; (2) Means Committee who said that, although they Xander relayed those instructions personally to were aware of the gathering outside, there was no Powell; (3) Powell went into the Capitol to find interference with conducting the day's committee Zeke Johnson; (4) Johnson went to find Albert; business. In fact, they testified, noise from (5) Powell and Johnson conferred; and (6) Powell tourists who every day troop through the hall· returned to the Capitol steps.

32 I' I

Jir Police radio logs set the time of the first of I these events-Xander radioing the Speaker's I instructions-at 3:15 p.m., one minute after I Powell says he made the second announcement. It appears much more likely that Powell's second announcement was made simultaneously with the area being sealed off and the beginning of the arrests. The May 4 tactic used at the Justice Department-warning people to leave or face arrest, and then making it impossible for them to leave-was repeated on May 5. i' The testimony about Chief Powell's warning to rl 1 disperse also covered whether it could be heard. Powell and Zimmerman both testified that the crowd could hear the second announcement and, '1'::~1· in fact, reacted to it. However, David Larimer, ' another Assistant U. S. Attorney, testified that he was within fifty yards of Chief Powell between 3:00 and 3:45 and heard no announcement at all.

Officer Ronald Eades of the Capitol Police said he was sitting on his motorcycle, 150 feet from Arrests on The Capitol Steps, May 5 the steps, during the same period. Eades said that he could clearly hear Bella Abzug speaking and could see Chief Powell speaking through a bull· 0: And after Chief Powell said to Chief horn, but that he could not hear Powell's Wilson what you have just related,. that he announcement. thought maybe he should warn them again because a lot of them hadn't heard ,, Steven Green, a reporter for the Washington him, what did Wilson say in response? Star, testified that he did hear the second 1111 announcement. He was standing right next to A: He said: "No. Let them tell their story in Chief Powell at the time. He testified further to a court." 1111 conversation he overheard between Chief Powell None of the Congressmen addressing the group and Chief Wilson as follows: I heard the announcement either. When Rep. I Abzug finished her speech, she turned the 11 microphone over to Rep. Mitchell and went down 11 1 0: And at that point, either just before or the steps. It was there she learned for the first tl; just after the arrests started, what did I time that people were being arrested. She found r, Chief Powell say to Chief Wilson? Chief Powell and said to him: "I think the least irlllr! you can do is make clear that they are subject to ''II!,,, arrest. The least you can do is make this an· A: He asked Chief Wilson if he should warn nouncement and I urge you to do so." She was the people on the steps again because he told that an announcement had been made and 11'111 didn't think that a lot of them had heard she, in turn, told Powell that no one had heard him. it. IIiiii

33 IIIII ;illll: I

:Ill' ~ ' ' -

At the top of the steps, Congressmen Mitchell "I'm sorry, I cannot do that." and Dellums had finished speaking and were being presented with the People's Peace Treaty. Dellums: "Why can't you do it?" Dellums' aide, Michael Duberstein, glanced down the steps at this time and noticed people being "Well, if we do it, we'll violate the civil liber· arrested. He testified: ties of a dozen people we already have on the bus (police vehicle)." "I walked back and told Ron: 'Con· gressman, they're making arrests down Dellums: "What do you mean, you want to there.' And he said: 'What?' He came arrest a thousand people and you only have over to the edge, too, and then said he twelve in this bus?" was going to find out. So he went down the middle of the steps and Powell: "Well, we already gave the order." approached the police officials. I couldn't get through the crowd in the middle. So I went to the edge of the In his testimony Chief Powell corroborated steps and went down towards where Dellums' recollection that the reason he didn't the Congressman was trying to talk to make another announcement or allow the Con· members of the police. When I got near gressmen to do so was because it wouldn't have the bottom of the steps, a crowd of been fair to the people already arrested. policemen grabbed me and shoved me down the rest of the steps. I said I was a member of the Congressman's staff. Both government and defense witnesses testi· One of the policemen kept grabbing me fied that one man in the crowd, early on in the and the Congressman ran over and said, proceedings, had taken off all his clothes. For 'Hey, that's a member of my staff. Get some reason, he was not arrested, although he your hands off him. I'm a United provided the only instance in which the govern· States Congressman.' And the police· ment and defense counsel agree that the law was man looked at him and said: 'I don't being broken. give a fuck who you are."'

The policeman then hit Dellums in the side There were apparently only two incidents with his nightstick and pushed him down some involving violence on the Capitol steps. One was stairs, too. the police manhandling of Mike Duberstein and Rep. Dellums. The other occurred earlier in the The Congressmen then proposed to Chief day when Rep. G. V. "Sonny" Montgomery from Powell that he give another order to disperse Mississippi struck a demonstrator in the mouth "loud and clear." They offered to help by adding with his fist. A police officer who witnessed the their own request to disperse. Rep. Dellums testi· incident came up from behind Montgomery and fied as to how that conversation went. Chief maced the fallen demonstrator. Montgomery was Powell responded to the proposal by saying: not arrested. The demonstrator was.

34 VI. THE DETENTION CENTERS

The people who were arrested were taken to we were all gassed. From that point on, several different kinds of detention centers: (a) to I was afraid we were going to be hurt. one of fourteen police precincts; (b) the Central The guards held cannisters of tear gas lock-up at police headquarters; (c) the U. S. in their hands, they had a fire hose District Court lock-up; (d) the Superior Court ready, clubs. A helicopter hovered over lock-up; (e) the outdoor practice field adjacent to our heads. I was very frightened the Robert F. Kennedy Memorial Stadium; (f) the D. whole time. I resented the newspapers C. Jail outdoor exercise yard; (g) the D. C. that reported it looked like another Coliseum, a large indoor arena normally used for Woodstock." JI: sporting events, the circus, etc. The worst problem for those confined in out­ li:lti: j,'].ll The several thousand May 3 arrestees originally door detention centers was the cold. J:l detained outdoors at RFK Stadium and the D. C. Jail exercise yard were transferred, starting at Henry Allen, a Washington Post editor, arrested ,tlli about 10 p.m., to the Coliseum. The transfers while trying to leave the GWU area, was confined continued from ten until about 3 a.m. They in the D. C. Jail exercise yard. "Night was joined an additional 1 ,000 to 1,500 prisoners coming on cold," Allen wrote the next day. "We who had been confined to the Coliseum from the huddled around fires built from wood pallets the beginning of their arrest. Volunteer lawyers guards grought in. The people lay down in groups ~1!1 estimate that at the highest point, the number of together under their blandets in the cold." That 11!111 people in the Coliseum was about 3,000. night, temperatures fell to the mid-30's. Fewer ,I than a third of the people in the outdoor deten­ tion centers had blankets. ,I

Conditions of Outdoor Detention Mary Evans recalls: ,,I! .,~11[!'·'I' I Carolyn Flood describes her confinement in "I became very ill at the practice field the R F K practice field: due to exposure. I asked for a blanket 1

again and again, but I never got one. "'111' "First of all, I was physically When I got to the Coliseum, I collapsed uncomfortable-cold, tired, hungry. But and went to sleep on the cold cement the worst part for me was ___ 'the show floor. When I woke up, I was shivering :1.11,1; of force: This was the first time I had uncontrollably and my teeth were

' ' been in this type of situation. Shortly chattering. I was coughing like crazy. A I'I. j after we got to the practice field, some medic saw me and was so concerned I , people started bending the fence and that he offered to pay my $1 0 coli at- I , I, I 'IIIII 11 11 'I 35 ~ I ) '

1.11 .i,l :i, I',1.-:' j/,'' i·' 1',

·:,;

RFK Stadium, May 3

eral for me. I refused because I was May 3 arrestees who were brought early to the being detained illegally and didn't want RFK practice field had to wait eight hours for to cooperate. The medic went to Chief portable toilets to arrive, as did the arrestees at Jerry Wilson and when he saw me he the D. C. Jail exercise yard. However, some of released me without processing. I was the guards at the D. C. Jail allowed the women sick for a week and a half." prisoners into the building to use the toilets.

Many of those arrested suffered the aftereffects The early arrivals on May 3 at the outdoor of exposure. detention centers were fed one hot meal by the government. For the rest of May 3, 4 and 5-and Ramelle Adams spent sixteen hours at RFK. at all the other indoor facilities from the Sometime during her stay there, she began beginning-arrestees were fed only lunchmeat shaking and became feverish. She was taken to sandwiches and water. In some facilities, there the hospital where the doctor told her she were ten hour waits for food. A newspaper story probably had contracted mononucleosis. She was in the Washington Star revealed that the Metro· then returned to the practice field where she politan Police Department relied exclusively on a continued to suffer in the cold. She was in bed small restaurant located in nearby Prince Georges for a week afterwards with a bad case of strep County, Maryland, to provide food for thousands throat. of demonstrators. This restaurant is under con· tract with the Police Department to feed what· Janet Kurczaba spent fourteen hours at the ever prisoners the department controls and practice field and the following week in bed with normally provides food for only 100 people a bronchitis. day. After the restaurant supplied sandwiches for one day, the Pri,nce Georges County Health Elizabeth Jamison spent sixteen hours at the Department ruled that it was operating over practice field and afterwards was hospitalized capacity and could not meet sanitation standards, with pneumonia. and ordered a halt to its stepped-up operations.

36 LF.

aa1 ·a ·d Aq o~oLJd £ A•IAJ •wn••!IO:J 04.L 1

I~

I' I I I. i'"' I .i

Conditions at the Coliseum Processing the Prisoners

The cement floor of the Coliseum was ice cold, At about 9 p.m. on May 3, the government but the air above it was hot, smoky and low in permitted five volunteer attorneys to come into oxygen. Tear gas and pepper gas clung tena· the Coliseum to advise the thousands of people ciously to the clothes of Mayday arrestees and being detained there of their legal rights. Until the fumes made many people ill. There were not that time, the arrestees had communicated with enough toilets and not enough food. no one from the outside, as they were not permitted to use the telephones. Initially, only Lawrence Speiser, then Staff Director of the five volunteer attorneys were given access to the Senate Subcommittee on Juvenile Delinquency, Coliseum. But as the evening wore on, a handful and former Director of the National ACLU Legis­ of additional volunteer lawyers was allowed in. lative Office, was one of the few volunteer attorneys permitted access to the Coliseum. His All of the volunteer attorneys and many of the affidavit describes the conditions: AC LU affiants reported that most arrestees had to stand in line for processing (sitting in the line was not permitted) for 3% hours to five hours. "Between the hours of 10:30 p.m. on May 3 and 4:30 a.m. on May 4, some Many AC L U affiants were advised by the 2,500 to 3,000 young people appearing police that if they elected to stand trial, rather to be between the ages of 15 to 25 than forfeit collateral, they would have to return years were imprisoned by a combina· to the end of the line. Others were told that only tion of police and National Guards. those electing to forfeit would be processed at They were primarily confined to the all. floor of the stadium which is concrete and extremely cold. Most of them lay Those who refused to give information to down without blankets or any police processors beyond the normal name and covering ... Several lines, some as long address required of them were told to return as 100 persons were waiting to use the to the end of the line. They feared-and their restrooms (although others testified fears were realized-that they would be given an there were unused restrooms) ... I arrest record, even though they had not had an observed at least 25 people who were arrest record filled out, and even though they had iII, who were lying on the concrete not been charged with any offense. floor, some on blankets, but most not. There were volunteer medics who were James Heller, then Chairman of the ACLU of attending them. Congressman James the National Capital Area, was one of the five Corman (who was part of a visiting attorneys first permitted into the Coliseum. In his Congressional delegation) left and affidavit, he gives the following account of the purchased some medicine at his own processing: expense for the sick ... There did not appear to be sufficient water or food "At approximately 9 p.m., one other for the people imprisoned." attorney and I were asked by a Justice

38 •,,1 t f Department Attorney, James Turner, to Coliseum public address system to tell I{ explain to the arrestees what proce­ everyone this. ';I dures would be used to book and 'Ih release them on charges of disorderly "During the evening, I spent over 1 'h conduct, $10 collateral, and what their hours trying to no avail to get Mr. choices were. We were told by Mr. Turner and Mr. Wilson (Will Wilson, Turner that everyone would be charged Assistant Attorney General in charge of with disorderly conduct only, and the processing at the Coliseum) to agree released if he had or said he had $10 to some procedure for releasing the vast collateral to be paid at Police head­ majority of those in the Coliseum for quarters after release; that no one had whom there was no field arrest record. to answer any questions asked by the Mr. Wilson simply would not agree to booking teams of Justice Department any such procedure. lawyers; that the choices available were to elect to forfeit the collateral or to "As the evening progressed to early stand trial; and that if the person morning, long lines of people began to elected to stand trial and the charges join up at the three turnstiles at the were dropped or he appeared at trial main entrance where collateral receipt and was acquitted, collateral would be machines were being used ... Every one refunded; that a person could elect to of the 44 people I interviewed (most of stand trial and later change his mind whom stated they had not been doing and forfeit collateral before triaL" anything but driving, walking or standing near the spot where they were Mr. Heller and the four other volunteer arrested; and that they had not been attorneys then began pre-interviewing each advised of the charges) elected to arrestee to explain these alternatives to them. accept an arrest record, disorderly They were joined by a team of Justice Depart­ charge and collateral requirement rather ment lawyers who volunteered to do this counsel­ than await the deadline of Judge ling. Mr. Heller's affidavit continues: Greene's order because they found the prospect of another 16-24 hours in the "At that time, I did not know Chief Coliseum intolerable ... " Judge Greene of Superior Court had issued a show cause order requiring the Several of the Justice Department lawyers, release of anyone by 8:00 p.m. including several from the Civil Rights Division Tuesday, May 4, for whom there was became increasingly disturbed at the role they no arrest record. When I learned of this were playing in the booking proceedings, and order and also learned from my first 15 their volunteered affidavits about the orders they or so interviews that no one had had had been given were filed in court. From the such a field arrest form filled affidavit of Justice Department lawyer Eileen M. out, I called all the other atto~(leys Stein: together and insisted we advise e~ery­ one that they could avoid any arrest "Before volunteering to advise record and criminal charge and collat­ detainees, I had been briefed on how to eral, in all probability, by waiting until fill out arrest reports (Form 255) by the next day at 8 p.m. if they wished. I the police. I was given a list of seven used voice, bullhorn and finally the policemen and instructed to fill in their

39 names in rotation in the "Arresting offenses, D. C. police are ordered to fingerprint Officer" blank on the form. When and photograph all persons arrested in connection someone questioned this, he was told with mass demonstrations. that these were the Attorney-General's instructions and those who didn't like it could leave. Later we were told to The Central Lock-Up cross out the word 'Arresting' in the form and substitute the word 'Court'." Most of the affiants confined at the· Coliseum did not complain about the attitude of the police The pre-interviewing and filling out the and National Guardsmen assigned to duty there, (fictitious) arrest record was only the first step. and several affidavits especially commented that When the arrestee had finished the interview, he some of the National Guardsmen were kind and lined up at another table where fingerprint cards sympathetic. At Central lock-up, however, not were filled out. Then he stood in line for finger­ only the physical conditions but also many of the printing and then for photographs. Then he stood guards were brutal. in line before a cashier to pay the $10 collateral, have a receipt filled out and be released. The The cells were about six feet square. The serial numbers on the Collateral Receipt forms number of occupants varied from 12 to 20. With indicated that as of 3:30 a.m. on May 4, only only 2 or 3 square feet floor space per person, 351 persons of the more than 3,000 held there there was no room to lie down, and the arrestees had been processed and released. took turns sleeping or sat during their entire confinement, which for most of the arrestees at I , I ( "~ i The government's motives for the processing Central was for over 40 hours. There were no I.,,'., procedures were quite clear: (1) to slow down blankets. Toilets were functioning in only some the processing in every way they could to prevent of the cells. The air at the rear of the cells was potential demonstrators from getting bacl< on the almost unbreathable. Those who arrived at streets; and (2) to get photographs and finger­ Central at 8:00 a.m. on May 3-and there were prints of as many of the arrestees as they could, many-were forced to wait eleven hours for food. without concern for whether the individuals had Those in cells without operable sinl

40

! I;

'ii ' ~ -~ i' II ?~ Affiants tell of arrestees with asthma attacks. minutes later. He had marks and i~': fainting, heat prostration and other illnesses being scratches on his neck and later red ~ refused medical attention. marks appeared under his eyes. A !1 ;I doctor in our cell who had been '•l Many of the male arrestees confined at Central arrested said that the man had a head "I relate the guards' threats: "We're gonna put you injury. We asked for medical assistance '.I in cells with murderers," and "You're gonna be over and over. No one came for about raped in here. they're gonna make sissies out of an hour. Then they looked at him and you." Later on. Central guards repeatedly told tool< him away." arrestees awaiting arraignment that judges were handing out six-month sentences. Women ar­ Kean did not know the name of the man he restees reported constant harassment by the saw thrown to the floor. But by comparing affi­ guards, and there were several physical assaults by davits, ACLU researchers discovered that Stephen Central guards against the male arrestees. Many of Boehm had been in Kean's cell and had been them tool< place in the fingerprinting room. assaulted in the fingerprint room. Boehm's affida­ vit corroborates Kean's. Boehm then describes the Some Mayday arrestees had been advised by assault which continued after Kean left the room: lawyers that they were under no obligation to cooperate with police processing, at least unti I "Now I began to get worked over by at the legality of the Mayday arrests had been least four policemen. They had me determined by the courts. But those who down on my stomach and they twisted attempted to refuse processing at Central were my arms back and tried to pry my treated brutally: Riel< Kean witnessed the fingers open. Someone kept hitting me following incident: with his fist. After about five minutes of this, they started talking about 'ljllil "On the evening of May 3, 1971, I was 'putting me to sleep.' They then turned II being booked and fingerprinted at me over. held down my arms and legs Iiiii Washington D. C. Central. As I was and one of the policemen put his hands being fingerprinted, another man from around my throat and cut off the air. I

my cell was brought in. When the couldn't breathe. This went on for li;

attendant grabbed his hand, he drew about 30 seconds, during which time 1. I back and said he didn't want to be the police kept making jokes about ,II processed. The attendant immediately what color my face was turning. Finally ,I:11 i grabbed him around the neck, and I opened my left hand to show that he aided by another police officer. pulled should stop choking me, that he could him down backwards. using a strangle­ have the prints. He waited about ten hold. He was thrown against the floor seconds and then stopped choking me. hard enough to bounce his head. He They took my fingerprints, made a was then picked up by one officer and photograph and brought me back to shaken by the other who yelled in his my cell." face: 'The Supreme Court says you have to be fingerprinted.' The man kept Boehm identified one of them involved in this ,., struggling, obviously afraid, and he kept incident as Officer X (name on file). There were 'II'' asking, 'What are you going to do, kill numerous reports from ACLU affiants confined me?' I was taken back to my cell then at Central about Officer X, several of them also 1111;: and the man joined me about 20 mentioning his badge number. I•

'I' il'.'l.i ~ i\ I 41 i'll

;til.'' I: ill!

I. I 'i

"'When David Denhartigh called for medical Similar comments came from people who were assistance for a man in his cell suffering an confined in the Ninth Precinct. asthma attacl<, Officer X opened the cell door, grabbed Denhartigh's arm and smashed the door Other precinct jails fell somewhere between the against his wrist. He then pulled Denhartigh from conditions at Central and those at the Second his cell and X and another guard beat him with Precinct. The Eleventh Precinct seems to have their fists. come very close to duplicating the atmosphere at Central. The guards laughed at a young woman Other witnesses report that X was involved in who went into convulsions and did not give her the beating of two arrestees in addition to medical attention for over an hour. The toilets Stephen Boehm in the fingerprint room. The weren't working and arrestees were allowed trips arrestees, Michael Morrison and William Dopier, to functioning toilets only after very long waits. had refused to allow their prints tal

Later that same day, police closed all windows in the jail cell area and directed high intensity Conditions in the Precincts lights into the cells to raise the already high heat.

Not all of the lock-ups were officered by However, on May 5, those who remained in brutal guards. From the Second Precinct, for the cells report a dramatic change in police example, came affidavits commending police attitude and conduct. They say the guards officers. Several arrestees confined there mention allowed them more air, room, water and exercise. Officer George Ward as being especially kind. At For the first time, arrestees were given access to the Second Precinct, medical attention, drinking telephones. No explanation was given for the water and toilets were readily available. Unlike change, although one element of it may have Central, police officers allowed arrestees to make been the knowledge that various habeas corpus telephone calls and kept the cell doors open to actions were being pressed by the Public ',,. i i:.1 ,, .:I provide additional ventilation. Defender Service and the ACLU, based on the

.•• ; : . 1 1·, ' :;:I' I' Ij II .. ' iW (J 42 ,r,~, ·11 1.'.,,.':~·1' ~.··~:. ',: :.:II ''\. ' 1~ ~.\' i ;~., ~ ~~ ·; cruel and unusual punishment being inflicted on against him if he refused to give all requested the arrestees. information. There are numerous reports from

I ! this precinct of a like nature. One such action was brought by the D. C. Public Health Association on behalf of Mayday Numerous witnesses report that at Superior prisoners detained in the U. S. District Court Court cell block, one officer simply checked the House lock-up. The action was brought before U. "forfeit" box on the collateral receipt even when S. Superior Court Judge James Belson, who an arrestee told him that he wished to stand trial. personally visited the detention facility. He found Several affiants report that they were told that "the approximately 600 persons presently repeatedly by police in various detention centers detained prior to arraignment ... are being held that if they didn't forfeit, they would have to under conditions which grossly violate the stay in jail indefinitely. Almost without excep­ minimum standards properly applicable even to tion, ACLU affiants who elected to forfeit say temporary detention facilities ... It is concluded they did so under some sort of pressure or that the petitioners are experiencing cruel and because they didn't understand what their choice unusual punishment and irreparable injury by entailed. reason of their being held in the detention facility described above." The pressure was worst at Central lock-up. We ~~~~ have already described some of the events in the ' fingerprinting rooms. Others were beaten for refusing to answer questions during processing. Processing in Court Houses and Precincts Some of the questions may well have been invented by the interviewers. For example, a While the physical conditions and the attitudes common question at Central was whether the of the guards varied from precinct to precinct, arrestee was a Communist. Some female arrestees at Central were told that all their belongings almost every single affiant records extreme IIIII pressure to answer questions not properly asked would be destroyed if they didn't cooperate. 1

'11 of individuals charged with disorderly conduct, Others were told that they would be l

Thomas Lloyd and many others at the Fifth Of the 739 affiants whose hours of detention Precinct were advised that those pleading "guilty" were tabulated, 39 were detained for from 1 to would be taken first and others would have a 10 hours; 331 were detained from 11 to 20 very long wait. hours; 188 were held from 21 to 30 hours; 101 for 31 to 40 hours; 42 for 41 to 50 hours; and ll·i'l,, James Stonaker, also at the Fifth Precinct, was 21 from 51 to 62 hours. The average length of 'I told that Federal criminal charges would be filed detention was 23'h hours.

1111

43

VII. THE COURTS

Our system of justice was the chief victim of faced judges who uniformly set bond at $250. !l11 Mayday. All of the illegal techniques employed Local residents were sometimes allowed to obtain by the government-the sweep arrests of the their freedom by posting ten percent of this innocent along with the violators; the lack of amount. This was hardly ever done in the case of arrest forms and the consequent lack of any a non-resident, unless he promised to leave town evidence against those arrested; the illegal deten· immediately. tion of thousands of individuals not charged with any offense; the deprivation of arrestees of their Judge Alfred Burka made clear on several right to counsel-all these were thrown into the occasions that this policy was designed to keep ,,

court system and acted like a giant monkey "troublemakers" off the streets until the anti-war 1111 wrench in the machinery of justice. demonstrations had ended. In applying this l1 policy, few judges on May 3 took the trouble to Initially, as described earlier, the government examine the validity of the charges or the arrests. tried to conceal the magnitude of its illegal The majority of arrestees arraigned on May 3 actions from the courts, first by pressuring or were unable to post bond and were forced to misleading those arrested into forfeiting collateral, remain in jail until their trials. and thus removing them from the courtroom process; and second by fabricating evidence by At 6 p.m., on the evening of May 3, the Public inserting fictitious names into field arrest forms Defender Service, acting with extraordinary speed filled out many hours after the arrests had tal

But even though the courts ultimately threw After hearing evidence about the lack of out virtually all of the cases against those probable cause for the arrests, the lack of field arrested, it took the judges of the Superior Court arrest forms, and the fictitious forms filled in an inordinately long time to realize that they later, Judge Greene handed down an order, about were being used by the government. The few 11 p.m., finding that: "It is extremely unlikely hundred arrestees who were arraigned on May 3 that a successful prosecution can be brought

45

J...__ ·------W(l' ·~.~~~~~ .1 1Iii ! 1:1\, under the circumstances without a field arrest in another paragraph, Judge Greene added that l{ii: form or the equivalent and a photograph" and the government was: ,1··,1 "that the interest of justice requires that persons ~.··'·:I ' I against whom charges cannot be sustained should "Ordered and directed that any infor­ 1'!!: ,I not be held in confinement. mation secured from any ... (finger· printing and mug shots) shall not be Judge Greene then gave the government unti I 8 disseminated to the Federal Bureau of p.m. on Tuesday, May 4 to show cause for any Investigation or otherwise, unless and detention continued beyond that time. Thus, the until such person shall have been language of the order made it plain that the convicted for an act or acts committed government had erred in detaining people without on May 3, 1971, and shall be submitted probable cause. But the effect of the order was to the Superior Court for destruction to allow the continued detention of people ninety days from this date." without probable cause for an additional twenty· one hours. There was no justification whatsoever for this judicial compromise of a fundamental ACLU and Public Defender lawyers then went principle of our legal system. The corruption of back to the Coliseum to tell the arrestees about the writ of habeas corpus was one of the most this order and to advise arrestees to permit them­ dangerous legacies of Mayday. selves to be processed under its protection. From 1 a.m. on Wednesday, May 5 to about 4 a.m., At about 2 a.m., Lawrence Speiser, the former some 400 to 600 people permitted themselves to ACLU Washington office director, telephoned a be processed and were released. judge of the D. C. Court of Appeals and asked for an immediate hearing on a motion to modify At 4 a.m., the government secured by tele­ Chief Judge Greene's order so that all people phone from the D. C. Court of Appeals, a stay of against whom the government did not have a case Judge Greene's order pending a 7 a.m. hearing in would be immediately released. the Court of Appeals. The speed with which the D. C. Court of Appeals responded to the govern· The D. C. Court of Appeals agreed to meet on ment was impressive. Matters were not as easily Tuesday at 8 a.m. and Public Defender Service facilitated for Public Defender Service and ACLU lawyers, joined by ACLU lawyers, submitted attorneys, who were greeted at 8 a.m. on May 4 affidavits about the conditions of detention and just before their emergency appeal by the anxious the processing techniques. The Court of Appeals and hostile Court Clerk, Alexander Stevas, who denied modification of the order and the told them that they must first find a way to file detention of all those who refused to be pres· a notice of appeal form with the Superior Court sured into forfeiting collateral continued until 8 Clerk's office, or they would appear before the p.m., the time set for a hearing on Judge appellate court only "over my dead body." Gree,ne's show cause order. When word of the stay reached the Coliseum The hearing ended at midnight, and shortly at 4 a.m., processing came to a virtual halt. thereafter Chief Judge Greene ordered that the detainees be released without collateral or bond. The next morning the D. C. Court of Appeals He also ordered that they be fingerprinted and issued an order permitting release without collat· photographed, but added qualifying clauses: any eral, but requiring that the arrestees, to avoid person refusing to submit to such processing was being brought to court, give information beyond to be brought the following day, May 5, to court; their names, fingerprints and photographs. It also

46 reversed that part of Judge Greene's order which But not many of the demonstrators had the had assured that no official police record would stamina to face confinement for an uncertain be maintained and which prevented dissemination period-and many had been told that they would II of fingerprints to the FBI and provided for the be kept in detention "indefinitely" if they did !I destruction of all fingerprints and photographs not cooperate. The treatment these arrestees were I ill: where there was no conviction. given varied widely from judge to judge.

The D. C. Court of Appeals made no exception Judge Alfred Burka continued to use his even for those who had accepted processing in judicial powers, in the absence of any evidence, the belief that their records would be destroyed to defend the sweep arrests and punish the if there was no conviction. demonstrators. Many of those who were arraigned before him on the morning of May 5 were told in Among the hundreds of people who refused to unmistakable terms that he was sending them to forfeit collateral there were some who refused jail for a while so they would be unable to even to give their names, much less their finger­ participate in the demonstration on the Capitol prints or photographs. On Wednesday, May 5 at steps that day. about 6 p.m., 383 of these people were finally brought before the Superior Court. On the other side, Judge James Washington was throwing cases out of court and calling the The government's case sounded like the one Mayday police procedures "a charade." devised by the Red Queen in "Alice in Wonder­ land." These unnamed people were charged with Some time during May 5, the court and prose­ obstructing the use of a thoroughfare in the cutors made it known that arrestees could obtain District of Columbia, but the government did not immediate release by pleading nolo contendere­ know which thoroughfare. There were no no contest-before certain judges who would then witnesses to their offenses, nor any arresting sentence the arrestee to time already served in officers. The government introduced the novel jail. As a general rule, this type of plea by an theory of "mass probable cause" evidently arrestee against whom there is no evidence is a meaning that if at some later date some probable questionable tactic since it is taken as an admis­ cause to prosecute one or two of these 383 sion of guilt for practical purposes. Once such a should be discovered, then there was probable plea is entered, an unlawful arrest becomes a cause at the outset to proceed against every single conviction which will prejudice the individual one. with such a record in seeking employment, licenses, credit, etc. But after two days in The Court, after angrily lecturing the Corpora­ miserable confinement, it was difficult for many tion Counsel's office about "the abuse of prose­ arrestees to be concerned about conviction cutorial discretion for seeking criminally to records and future employment. j:i charge persons against whom specific evidence was totally absent" dismissed the informations Some of those who continued to proclaim ,!1!' against the John and Jane Does. Thus, 383 of the their innocence and refused to plead nolo con­ Ill! more than 7,000 arrested on May 3 were released tendere often changed their minds under judicial pressure. An attorney who represented several J without having given their names, fingerprints and 1!: photographs. Their stubbornness had won them a Mayday arrestees before Judge Nicholas Ninzio significant victory. The price they paid was longer on May 6 relates in an affidavit: detention than many of the other prisoners­ "The first of this group to be arraigned between 50 and 60 hours. was Sheila Gropper. She told me she

47 wished to stand trial. At her arraign· Even during the early hours of Mayday, Judge ment, I told the court that she waived Tim Murphy was warning arrestees that they the formal reading of the information, should consider their pleas carefully and that any wished to plead not guilty, and a trial plea which could be taken as an admission of date was set. Judge Nunzio then set a guilt would result in a permanent police record. money bond of either $300 or $500, I Judge Murphy is generally regarded as one of the cannot recall the exact amount. I Superior Court's finest jurists, a conservative "law objected to the setting of the money and order" judge who is both thoughtful and fair. bond, stating that the defendant was During Mayday, Judge Murphy urged the being forced to waive her right to go to Superior Court to abandon arraignment hearings trial. Each of the remaining defendants and instead, hold all night trials of the Mayday told me that he or she wished to enter arrestees. This procedure would have eliminated a nolo contendere plea and each did so. the pressured pleas and the necessity of later Judge Nunzio made no inquiry into the Mayday trials. Immediate trials would also have factual basis for these pleas. Each exposed the fact that the government would defendant was sentenced to time never have been able to present evidence of guilt served. Miss Gropper's case was then and would have given the judges an accurate recalled for a change of plea. Miss picture of what had occurred. Judge Murphy's Gropper entered a plea of nolo suggestion was rejected by the Superior Court. contendere. No inquiry was made into the factual basis for the plea. She By rejecting Judge Murphy's proposals and received a sentence of time served." going on with arraignment hearings, trial dates were set for several thousand criminal cases during May and the following months. These additional trials meant that the backlog of cases From these and other incidents, it is clear that in Superior Court would worsen considerably, Judge Nunzio was aware that numerous arrestees and other litigants would be forced to wait even were admitting guilt in order to avoid further longer for their day in court. confinement. Indeed, he was pressuring them into doing so by setting high bonds for those who Many Mayday defendants were from outside chose to plead not guilty. Washington and appearing for trial required substantial expense and time. Despite all this, the An other judge who was accepting nolo Corporation Counsel's office allowed nearly all contendere pleas on May 5 was apparently not the Mayday prosecutions to remain on the aware that arrestees were adopting this course of dockets, forcing defense lawyers, defendants and action out of desperation. Several days later, judges to invest time to prepare for cases that Judge Charles Halleck angrily accused the Corpo· didn't exist. During the three weeks following the ration Counsel's office of pressuring such pleas Mayday demonstrations, 1 ,000 cases came to from arrestees who had appeared before him. At trial. One defendant was found guilty. The the same time, Judge Halleck began dismissing remaining 999 criminal actions were either Mayday cases for lack of evidence. Of these later withdrawn by the Corporation Counsel at the cases, many arrestees had initially entered nolo time of trial or dismissed by the judges. In a contendere pleas and had changed their minds great many of these cases, the prosecuting after Judge Halleck advised them of their rights attorney walked into court with no evidence at and what a nolo contendere plea could mean to all against the defendant and no explanation of their futures. why the defendant wasn't notified before he

48 made the trip from New York or Massachusetts any evidence whatever that would stand up in or California. court."

In evaluating the performance of the Superior Numerous ACLU affiants relate how they came Court through Mayday, it is fair to say that the ill to Washington from distant places only to have Court demonstrated an inflexibility-or at the' .•11 the charges against them withdrawn by the prose· very least a lack of initiative-to the courtroom cution at the last moment. Some of them had crisis it knew was coming. Even worse, too many judges displayed an injudicious deference to the come to Washington to participate in the demon· i strations. Many others were college students going government's unsupported promises that evidence ! to school in Washington who were arrested during would eventually be forthcoming. As noted ·Ill the May 3 police sweeps but had returned home above, it rejected the proposal by Judge Murphy by the time their cases came to trial. Other that trials, in which the factual basis (or lack of ACLU affiants describe how they came to court, it) for the government's case would have become ~~·1,~ waited all day for their cases to be called and known, be held through the night. By insisting on the arraignment process, and by imposing exorbi· ~II were finally advised that neither the court nor ~ the Corporation Counsel's office had a record of tant bond, many judges imposed needless burdens ~ their cases. on arrestees and thereby abandoned their role as impartial dispensers of justice. I,;: I, ~' As the pile of withdrawn and dismissed On May 24, the ACLU mounted its legal r Mayday cases grew, without any sign that the counterattack against the prosecutions, as well as ~' Corporation Counsel intended to initiate a change a series of actions to recover damages and 1 Ii. of policy, Superior Court judges began to lose expunge the arrest records of those illegally patience. On May 24, Chief Judge Greene accused arrested and to enjoin the government from ~l ~ Corporation Counsel Francis Murphy of prose· engaging in illegal arrests in the future. The ~ cuting "hundreds upon hundreds of cases which account of the ACLU legal counterattack will be I he knew and must have known completely lacked related in Chapter IX.

49 , I '' .,

,,, i VIII. THE DECISION-MAKERS

,,..ij'' The District of Columbia differs from any The federal responsibility can be clearly ( other American city in that it has no autonomous traced. But after having assumed the responsibil­ local government. Its city officials, including the ity, the federal government-that is, the Justice ~ "Mayor" and the City Council, are appointed by Department-made another decision. It publicly I the President of the United States and need not stated that D.C. Police Chief Jerry Wilson had ~ respond to the desires of the residents, who directed the entire Mayday operation and had I•I cannot vote for local officials {only for President, made all the decisions on his own. Chief Wilson • Vice-President, one non-voting delegate in Congress was extravagantly praised by the President, by ~j and the school board). There is additional outside Attorney General Mitchell, and by department ~ control from the House and Senate District and agency heads for his "brilliant," "firm," "fair., nvigorous," "efficient," "effective," l\.1; Committees which dole out the funds for the operation of the city's bureaucracy and supervise handling of the demonstrators. And when things ~• ~ many of the details of that operation. began to go wrong in court, it was not Justice ~ Department officials who were blamed for bring­ It is clear that it was the federal government ing cases with no evidence whatever, although it which made the decisions on Mayday; which was clearly they who made the decisions. It was ....~·T.. ~~. r decided on the mass arrest techniques; which D.C. Corporation Counsel Francis Murphy, the 1.··1I~ 0 decided on the abandonment of regular arrest city's chief legal official, who was castigated by !t:· procedures; which arranged for the detention the courts and the press for his "irresponsible," !: ·,, centers; which was in charge of the processing of and "vindictive" prosecutions. 1f~ prisoners; which made the decision to use 'i· fictitious arrest forms in the detention centers; This chapter will document that it was indeed which, finally, was unconcerned with whether it the federal government, at the instance of Presi­ had legitimate cases against the arrestees. The dent Nixon, through the Justice Department, that government's main objectives were to imprison made the decisions on Mayday, and we will try them for several days and to punish them with to analyze why it was so important to the Presi­ arrest records. dent and the Justice Department that it be made to seem that the decisions were made by Chief • These objectives square with the political Wilson and Corporation Counsel Murphy. philosophy of some high Justice Department officials. A New York Times article by Fred Chief Wilson was a willing participant in the Graham on February 20, 1972, reported that in decision-making charade. On May 5, he stated: ('' 1969 with mass protests looming, Deputy "''li.: ~:! Attorney General Richard Kleindienst (now "In response to numerous inquiries and ''11'"1IJ 'li Attorney General) urged a policy of mass arrests. to clear up erroneous statements which "What about the Constitution?" he was asked. are finding their way into the media, I "We'll worry about the Constitution later," wish to emphasize the fact that I made replied Mr. Kleindienst. all the tactical decisions relating to the

51 recent disorders. The decision to On March 6, two FBI agents forced their way I temporarily suspend the use of field into a house where several Mayday people were arrest forms and to immediately arrest living. They searched the house and its occupants. I all violators of the law was mine and A young female visitor from out of town was mine alone." taking a shower at the time. One of the agents However, both Wilson and D.C. Mayor Walter demanded that she come out of the shower and Washington agreed that the Mayor was not con­ into one of the bedrooms for questioning. She sulted in the major decisions to cope with the and her hosts adamantly refused, and the agents :1 demonstrators, nor was any other member of the left angrily. "If you think this is repression," one D.C. City Council or the local government. All of them said, "you haven't seen anything yet." the consulting Wilson did was with the Justice We have already outlined the Justice Depart­ Department. He interrupted his supervision of ment's role in securing the injunction of the trouble spots during the three·day Mayday Veterans' encampment on the Mall, and then demonstrations with many visits to the Justice asking that the injunction be lifted; and then Department. granting the permit for West Potomac Park and Long before the anti·war Vietnam Veterans suddenly revoking it. These pre-Mayday episodes, ! began gathering in Washington on April 17, Presi­ it must be stressed, were not a usurpation of the dent Nixon issued an executive order specifically city's power, since they involved federal sites. But assigning responsibility for the law enforcement they had a profound effect on the operations of response of the entire executive branch during May 3. The injunction against the veterans and 'I' the spring protests to Attorney General John the revocation of the permit served as the final Mitchell. stroke by which the government severed its channels of communications with the protesters. Two months before Mayday, FBI agents began It indicated to protest groups that agreements I;' focussing their attention on Mayday organizers. with the government were unreliable and that On March 1, several FBI agents stationed them­ negotiations with the Justice Department were selves outside the newly opened Mayday offices futile. l' 'I' '' ..• on Vermont Avenue and interrogated a number 'I"' The decisions about the Mayday demonstra­ of people who left the building as to their roles tions were made in a series of Justice Department in Mayday. strategy sessions starting in late April. Several Justice Department attorneys were always pres­ On March 2, five FBI agents picked the front­ ent. Deputy Attorney General Richard Klein­ door lock of the home of Ms. Jane Silverman, a dienst was usually among them and Attorney Mayday volunteer, and entered the house. When General John Mitchell sometimes attended. Presi­ Ms. Silverman began screaming, they left. dential advisor John Dean was at most of the meetings. President Nixon was never physically Later the same day, two agents stopped several present, but he was advised of all developments. Mayday workers who were leaving the Vermont "He (President Nixon) had the veto power," said Avenue building. The people were questioned and one government official. "Mitchell and Klein­ searched thoroughly and then set free. dienst made the decisions, the police did the dirty work and Nixon had the veto power." City On March 5, three people leaving the same officials sometimes attended these meetings, and building were stopped by FBI agents. One was Chief Wilson was usually there. forced into the back seat of his own car and driven around town while the agents questioned When Police Chief Wilson tool< to the streets him. on May 3 to deploy his men, he was accompa-

52 nied by Justice Department official, Fred B. FBI arrested another Mayday leader, John Ugast. Ugast is head of the Justice Department Froines on conspiracy charges and added a charge Tax Division, and is hardly qualified for police of assaulting a federal officer with a dangerous advisory work during mass demonstrations. But weapon-a megaphone. he is one of Kleindienst's closest friends. Accord· ing to one government official, Ugast was ex· Mr. Caplan did not reveal on whose behalf he pected to keep Kleindienst advised of the situa· was acting in making the offer. It wasn't really tion on the streets so that the Justice Department necessary. Neither Caplan, nor his client, Chief could base its decisions on reliable information. Wilson, had authority to immunize Mayday I' This does not square with the government's leaders from felony prosecutions. Only the ·.·l'ltll lill contention that Chief Wilson was on his own Justice Department could do that. And, of during Mayday. On May 4, police radio logs course, it was the FBI that arrested the two men, establish that Chief Wilson did not begin to not the D.C. Police, and the charges against them ·~ 1!1 deploy his men around the Justice Department were filed by the Justice Department, not the " until after he had been summoned to confer with D.C. Corporation Counsel. ill !Ill Kleindienst. According to Public Defender Service lawyers, .i.,·l· l.,.. It was another Justice Department official­ Justice Department attorneys were constantly at 'I'n! Assistant Attorney General Will Wilson-who the elbow of the Corporation Counsel in court ,.: ::If determined that all May 3 arrestees should be and participated in all the courtroom decisions. I fingerprinted before arraignment. He gave those ' instructions not to the city prosecutor or Chief All of this evidence paints a picture in which Wilson, but to Assistant United States Attorney at every juncture of government decision-making (and former U.S. Marshal) Luke Moore. The U.S. during Mayday, a Justice Department official was Attorney is under the direct supervision of the present to monitor pol ice and law enforcement Attorney General and ordinarily prosecutes only actions. federal offenses. The arrestees were being charged with violating a local ordinance, and D.C. Corpo· But following Mayday, there was a concerted ration Counsel Francis Murphy was ostensibly in government campaign aimed at holding up Chief charge of their prosecution. Wilson as the primary Mayday strategist. Chief Wilson launched the drive himself with several At 2 p.m. on May 3, D.C. Police Counsel public statements in which he accepted full Gerald Caplan got in touch with the attorney for responsibility for the May 3 decisions. Attorney the leaders of the People's Coalition. Caplan General Mitchell, in a speech a week after May· advised him that the government would abandon day, praised Wilson for the Mayday decisions •I further prosecution of May 3 arrestees if Mayday which, Mitchell said, were solely Chief Wilson's. :ji ··ljl•. leaders would cancel all future demonstrations President Nixon and Deputy Attorney General .1 I scheduled for that week and direct protesters Kleindienst followed by heaping praise on Wilson ~~~ from outside Washington to return home. If this for his decisions. '~ :il' were done, said Caplan, all arrestees would be ''I';,: released immediately upon posting $10 collateral Politically oriented people like President Nixon :.1" and no felony charges would be brought against and Attorney General Mitchell do not ordinarily Mayday arrestees. A few minutes after Caplan's give other people credit for what they have done ~·I~·;[ offer was rejected by the People's Coali· themselves. But in the case of Mayday, there was ~~ :R tion leaders, Rennie Davis was arrested by the a very good reason for misdirecting the attention I: : FBI on charges of cons pi racy. The next day, the of the Washington press corps to Chief Wilson. It I •,.' if' I ~ 53 1 II :,~

):.:: is clear that one of the Administration's chief more space to Mayday than the third Washington goals during Mayday was winning the public rela­ paper, or the out-of-town papers and television tions battle with the protesters. and radio.

With this purpose in mind, Chief Wilson was The first news accounts of May 3 appeared in an ideal champion for the government's cause. the May 3 edition of the afternoon Washington Since taking office, Wilson has been a favorite Star. Those who read that edition-including, of Washington journalists-the very image of a presumably, the Superior Court judges who sat modern, thoughtful, and moderate police officer. on the bench that afternoon-first saw the head­ Part of that image, ironically, grew out of line: "City Shutdown Foiled, 6,000 Protesters Wilson's activities in insuring peaceful mass Held." The article ran on for a page and a half. demonstrations in Washington before 1970. The The only indication that non-protesters had been ,,, I lr' media, and particularly the Washington Post and arrested was a reference to some arrestees being the Washington Star, started with a bias in favor charged with jaywalking and other minor of Chief Wilson, and an unwillingness to believe offenses. One photograph in the Star showed a that he or his department would participate in motorist with long hair being arrested near Key illegal tactics or excessive force. Bridge. The caption said the motorist was an "anti-war demonstrator." On the other hand, Attorney General Mitchell and Deputy Attorney General Kleindienst have On page three of the May 3 Star, there was a been targets of much press criticism. Their spon­ story of conditions in the RFI< practice field. It sorship of the D.C. Crime bill-with its repressive began: "Cheering and yelling, more than 2,000 features, including preventive detention-have persons rounded up in today's mass arrests turned made them unpopular with most Washington their prison area into a game field." Deep in the editorial writers and viewed as antithetical to the body of the article there were references to some best interests o·f the residents of Washington. By claims by arrestees of brutality and unsanitary transferring Chief Wilson's role from director of conditions. But these were few and obscure, and Mayday operations into. that of decision-maker, the false image conveyed by the article was, as the Nixon administration created a buffer one affiant complained bitterly, that of another between itself and the Washington press. In the Woodstock. main, it was a successful tactic. The May 4 edition of the morning Washington Post contained two articles providing readers with views of the street action from helicopters. There was in addition, a front page story which described what happened on the streets. It made The Role of the Press no mention of the arrests of innocent bystanders and, like the Star, referred to all arrestees as What follows is a brief analysis of how Wash­ "protesters." The Post article on the detention ington's two major newspapers, the Post and the centers echoed the Star's report of the previous Star, covered Mayday in both their editorial and evening, with considerable emphasis on the news columns. This is obviously not the whole chanting and singing, on the temperature being in story of media coverage, but these two papers the mid-fifties, on the "generally good spirits." have been selected for study because they are the Neither the Post nor the Star mentioned-let most influential with law-makers; they are read alone protested-in their news or editorial by judges and officials; they devoted, by far, columns that the press had been barred from the

54 outdoor detention centers and that their stories The Washington Post lead editorial on May 4 . had, of necessity, been written from a distance. · was about Mayday. In it, the editorial writer One Post reporter did manage to avoid the guards reproached the demonstrators for having hurt and get into the Coliseum, but his story of condi­ their own cause and, accepting the demonstrators' tions on May 4 did not appear until Sunday, May own inflated rhetoric, called the traffic blockades 8. "a rampage calculated to close down a city and a government ... " It commended the police: There were two straightforward articles on "With some exceptions, forbearance was the word May 4 in the Post on the events in Superior Court yesterday, for which all of us, and not least of all the day before. Two-thirds of the way down in the main body of the demonstrators, owe some one of these lengthy pieces was the only refer­ debt to the skill and discipline of the police and ence in Washington's two major newspapers to other security forces. It is not a debt the move­ the arrest of innocent bystanders. That article ment is likely to acknowledge, of course, which is 1'1'".! ended with an anecdote: a police sergeant tells a part of the tragedy-this profound alienation private that there is a lot of tear gas in the air. which has put an end to rational, purposeful The private replies it isn't tear gas but the discourse." Potomac River he is smelling. This amusing anec­ Iii I' dote was overheard in an area where at least This passage epitomizes the a priori assump­ II'II twenty ACLU affiants were beaten by the police. tions of the two papers. They searchingly ana­ ~~i I lyzed the goals of the traffic blockaders and I ,. The impression one gets from leafing back correctly criticized the illegality of their actions. 1 l 1 through the May 3 Star and the May 4 Post is But they accepted on faith, and against the evi­ I'''I~' that of a sports event. This is partly because both dence of any moderately observant bystander, the 1- ~I newspapers devoted an inordinate amount of ~~forbearance," "skill," and "discipline" of the il'·'I i space to the traffic-flow game, usually from a police.

distant observation post where the human beings !II ·1 were only players. Then there were the rosy By the evening of May 4, Washington news­ Iii'·'I' I views of the detention centers, also viewed from paper readers began receiving a somewhat revised :!! ': a distance. And added to the carnival atmosphere, picture of Mayday. The Star ran an article by ij! :' i were photographs with inappropriately jaunty staff writer Angus Phillips who had been arrested captions. The May 4 Washington Post, for in Georgetown on May 3 because, as he wrote, he i1il example, captioned a photograph of a clubbing happened to be "in the wrong place at the wrong '11111 incident with "A helmeted policeman takes a time." Phillips wears a beard and long hair. Ill'

swat at a protester in Georgetown." Whoever read Through Phillips, readers learned for the first 111\'1, that caption derived as much a sense of pain time that innocent people were arrested on May from it as he would from watching one circus 3 and that detention centers were cold, crowded, i,l.l: clown "swat" another with a balloon. short of food and unsanitary. A similar article 'I··•I: I appeared in the Post the next morning. It was i'l: i'l· A notable exception to the general level of written by assistant features editor Henry Allen, 'ill reportage was the coverage of the courts by who also wears his hair long and who was also li' Sanford J. Ungar of the Washington Post. His arrested on May 3. :,,\,, articles in the days that followed the arrests gave :'.'i a clear account of the weakness of the govern­ On May 5, both editorial pages in a kind of I iJ ment's evidence. In addition, he uncovered the not-so-instant replay, analyzed the arrests of May ,:1! ,.' Justice Department's controlling hand in the 3 again, and revised, but did not entirely scrap, Mayday operations. their earlier conclusions: The Post: 'i

55 '.'.'.1'I II Jl

I' 11''" "Chief Wilson and his men are not to The editorialist did not explain how he knew that blame. With some exceptions. the the majority of those arrested were not innocent. Police Department as well as other area Nor did he say whether the "deserved" treatment police forces and the military units all that "they got" included the beatings in Central ,'i performed commendably. given the job lock-up, the clubbing in the streets, and up to

'', I, ' they had to do. There were some three days of imprisonment without charges. !,! serious lapses in which individual 'i policemen used their clubs too readily On May 9, the Post ran another replay. In a and in which innocent bystanders, par­ long editorial, the Post said: ''.1 ticularly if they happened to have long ,;,I .. hair were arrested without cause. The "We are not inclined, as some are, to task which Chief Wilson was given-to denounce the tactics adopted by Chief keep the city's traffic running at almost Wilson ... He and his men, with some any cost-was a formidable one." important exceptions, carried it (their assignment) out well. It is true that The editorial then went on to characterize as there were instances in which individual "one piece of poor judgment" the abandonment bystanders were wrongfully arrested on of the field arrest forms which resulted in herding Monday in the massive police sweeps thousands of people into detention centers. and on some subsequent occasions ..."

"These dragnet arrests did serve the But while still defending Chief Wilson (thus purpose of clearing the streets and vindicating the Administration's decision to make keeping traffic flowing. But some of it appear that Wilson was in charge) the Post those carted away would have been reserved its editorial wrath for the detention and released promptly as bystanders if court procedures which followed. " ...it is unfor­ records had been kept." tunate that the exigencies of Monday required the police to abandon the policy that would have permitted this (punishment of the actual violators This revised view of the May 3 operation. who blocked traffic) to occur ...but this was not however. had no criticism to make of the whole an excuse for the prosecutors to set themselves concept of mass arrest and the consequent up as judge and jury to punish people by holding suspension of Constitutional rights, nor did it them in confinement illegally." suggest that there might have been some alterna­ tive way to keep the traffic moving. The Post could not, or would not, make the connection that the illegal arrests begat the illegal The May 5 Star editorial echoed the same detention which begat the courtroom chaos, and views by terming police brutality "unfortunate that the whole government operation from start and perhaps predictable" and the arrest of inno­ to finish was planned without any regard what­ cent people as "probably unavoidable." The Star ever for individual Constitutional rights, or any editorialist continued: intention of releasing those arrested until 24 to 60 hours had passed. "The majority of those temporarily detained unquestionably deserved pre­ The Star's May 9th editorial also took more cisely what they got, even if the careful note of "the repression in the streets," charges cannot be made to stick in the "cruel and inhumane" conditons of detention court." and the "chaos" in the justice system. It

56 ------

acknowledged that probably a large majority were In a letter to the Post entitled "The Illusions improperly arrested and denied their constitu­ of Mayday," James Heller, then Chairman of the tional rights." The editorialist's solution was: "A ACLU of the National Capital Area, responded to declaration of emergency by the civilian authority all the Post's editorials. He summarized five of the city whereby demonstrators could be editorial "illusions," stressing the last one: removed from the streets and held in protective custody without formal charges for the duration "The fifth and much more serious ill u­ of the disturbance." This is, of course, a re­ sion is that the Constitution is but a statement of Mr. Rehnquist's remarkable inven­ rule of the road and can be suspended tion, "qualified martial law." during rush hour to move traffic. For this is the plain implication of the On May 23, the Post agonized some more over Post's refusal to question Chief Wilson's Chief Wilson's actions: decision to do just that. Does the Post really mean to say that the only way to "It is quite obvious that the police did counter planned obstruction of the a remarkable job of maintaining street is to turn off the Fourth Amend­ order ...when the mob set out to tie up ment like a signal light at the corner?" traffic and close down the government. It is also obvious, or so it seems to us, Heller's piece concluded that in addition to that this was achieved on that day only Mayday, the Post has some illusions about itself. because some of the procedures estab­ His remarks, although directed at the Post, apply lished by the Constitution and the laws equally to the Star: were set aside." "The last illusion concerns the Post as This last point may indeed have been it sees itself. It has been rather too "obvious," but the editorials of May 4, 5, and 9 possessive about the general welfare of did not mention it. this city, too ready to patronize official misconduct undertaken in what it The editorial continues: deems to be the public interest. Perhaps "We were not prepared then, nor are this is an inherent tendency of all we now, to second-guess Chief Wilson establishment newspapers, but one can on the mass arrest tactics he hope the Post will do a better job in adopted ... It is easier now to suggest the future of resisting it. that he would have been wiser to use them in specific situations rather than "When all three branches of govern­ generally that day and in any case, his ment either cooperate in or bless men should have used them with more wholesale official illegality, the Fourth selectivity." Estate should be fulfilling its role as vigorous critic and corrective, not ·i'l The editorial does not explain how "mass" arrest writing avuncular editorials about their ::! tactics may be used with selectivity. good io1tentions." I i'ill ,jl ::il :i1 lj 1111:1

57 1'1,1

::Jr'ill i

!iii

~ lill' !j I

IX. THE LEGAL COUNTERATTACK

The government's arrest of 7,000 demonstra­ records of the demonstrators where they were tors on Monday, the largest number ever arrested not followed by a legitimate conviction after in this country in one day, surprised the ACLU trial; (d) to seek the setting aside of guilty pleas, as it did everyone else. The ACLU had been nolo contendere pleas and collateral which was expecting the arrests of those who blocked forfeited through coercion or misdirection; and traffic, and since blocking traffic is illegal, it did (e) to seek damages for arrestees falsely arrested not expect to have to deal in any large way with and detained. constitutional questions. Law enforcement \II agencies would have been perfectly within their The ACLU did not seek (with two exceptions) II rights to make such arrests. I' to play a role in the defense of individual ar­ ~I restees either being arraigned or whose trial dates On May 3, without any prior arrangement, ~~ were set for the ensuing months. This function I, I AC L U lawyers-including volunteers-began I:I' came under the mandate of the Public Defender A,,,..l'

heading for the Coliseum and the courtrooms to 1 Service, and Public Defender Service attorneys see what they could learn from the arrestees ·~~~,.1,: carried out the difficult task of representing about the activities of the day and to offer what !II hundreds of individual Mayday defendants con­ I legal assistance they could. Among those who scientiously and with remarkable success. The 1,~ spent the next three days at the Coliseum were ·l'i Georgetown Legal Interns also represented James Heller, the ACLU chairman; Ralph Temple, [II individual defendants. the AC LU Fund Legal Director; and Lawrence Speiser, the former Director of the National ~\.1! ' II ACLU Washington office. Others were also •1 Before any court action could be filed, the . I moving into action. Covering the courts were: 1 ACLU needed accounts from individuals of '[i Monroe Freedman, who was to become ACLU's ~! their May 3 experience. It got those accounts special counsel for all Mayday litigation; Barbara !i"l from individuals in response to a full-page adver­ I • Bowman and Norman Lefstein of the Public tisement published in the Washington Post on ~ Defender Service; and Philip Hirschkop, who had May 17. The advertisement is reproduced on ~· been retained to represent two of the Mayday :1,1'[' pages 60 and 61. ;~ demonstrator groups. .i!" .,,~! I~· From the beginning, the ACLU saw its role as The response was extraordinary. 1,200 individ­ ~ that of taking affirmative action to (a) seek a uals sent for affidavit forms and 800 returned 0 I[· court declaration that the Mayday arrests were them filled out and notarized. The appeal for ~:! illegal, as well as the detention which followed it; funds to support the litigation resulted in •Q (b) to enjoin the use of such techniques in the $12,000 in contributions, usually in small " future; (c) to seek expungement of the arrest amounts-most were for between $2 and $10. [II il " 59 ''.1•I h,,, I·' ·-· -=-0 --...... -~-~~ "~""?:~;·:- ,.,,...., ~--- ;_-_- .-:------·..::---o;;... --- --~'"':"--=::-' ~-~~-~-- _-,:'~--:~"":'. . _---::~-----~~-=~~--- ""::." '-----=-" ---- """"= ------~ -

Bl2 Monda,.,May17>19

Washington after the assassination of Dr. WE NEED YOUR HELP In the aftermath of the Mayday dis­ • The "Gooks": Anybody with a beard, long hair or unconventional dress King. This was different. There can be no We have already collected scores of turbances in Washington, the President of excuse of "over~reaction" or "pressing fue was marked for immediate arrest, no mat­ accounts of illegal arrests and detention. the United States and his Attorney General panic button." This time, the violations of ter where they were or what they were We need hundreds more. We need evidence are congratulating each other on their the law and of the Constitution were care­ handJ.ins of the crisis. They have no reason doing-ornotdoing. They were the "enemy'' -carefully dncumP-nted facts-and we just as civilian Vietnamese-North or fully planned and coldly executed. to do so. They botched the job. They had all need it fast. South, men, women and chlldren-are the the problem of enforcing the law against enemy-''gooks," "slants," and ''slopes." Above all, it wasn't necessary. traffic disruptors through legitimate law If yoU were arrested during the disturb-­ ~ The same amount of planning could have ances, please let us know. enforcement methods. They had advance produced a workable method for appre­ notice, resources, manpower and the exper­ • The Body Count: We've gotten used to the routine falsification of records hending only the actual wrongdoers. In­ If you know anybody who was arrested ience of previous disturbances at hand, and stead, the President and the Attorney Gen­ -even people who have since left town­ they still made a mess of it. in Vietnam. Now it has been brought to America. Police didn't bother with field eral made a calculated decision that it please give us their names and addresses. arrest forms; after they herded those ar· served their political ends to escalate a They have jubilantly told the American rested into detention centers, they simply troublesome disturbance into a massive If you witnessed sweep arrests without people that they kept the traffic moving. made up the forms. They used the names of show of governmental power. Now the cause, or any other police misconduct, What they haven't told us is the terrible six or seven policemen on a rotating basis AU:orney General is encouraging police please let us have your story. price we paid for traffic control. They as the arresting officers. These arrest rec­ officers all over the country to follow his Just call the special numbers below, or achieved their "victory" by suspending the ords are false. lead in jettisoning the Constitution and rights guaranteed to us all under the Con­ ignoring the law. come into fue ACLU office and talk to us, or stitution and by imposing on us a domestic The successful adaptation ofVietnami­ mail"in the coupon. version of the techniques used on the help­ zation to America reached its peak when WE DON'T INTEND TO LET less people of Vietnam: more than 7,000 American citizens were illegally penned into detention centers THEM GET AWAY WITH IT WE NEED YOUR SUPPORT without shelter, adequate food or water, The ACLU will challenge every viola­ The fight to restore the Constitution as • The Free Arrest Zone: Like the sanitary facilities or medical attention, tion of the Constitution by the police and the law of the land will be a long, uphill free fire zone in Vietnam, the objective was wifuout fue chance to notify their families the government. We are preparing damages task. It will take all the energy, talent and to pick several areas and arrest everybody or call a lawyer. Thousands of them were suits on behalf of those swept np in the resources we have. Above all, it will take in them, including the byStan-ders and held without arrest forms, without any police dragnet and held incommunicado money. We will fall without the support of people on the way to work. The maneuver possibility that they could be connected under inhuman conditions. We will file an thousands of citizens who care about what netted lawyers, government workers, stu­ with fue disturbances, let alone prosecuted injunction suit against the police, the Jus­ happened here, and who are determined dents, newspaper reporters, medical ob· and convicted. tice Department, the custodial authorities that they won't let it happen again. servers and children. We say categorically and the courts to prevent the maSsive break­ that the majority of those arrested were not down of our system of justice again. We will We ask you to send your contribution committing any offense whatever, and the IT DID HAPPEN HERE pursue these legal remedies with whatever now-as much as you can-to give the government knew it when they swept them There have been police excesses before it takes, for as long as it takes. American people their day in court. up and knows it now. -in Chicago at the Convention and here iii AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL AREA

James H. Heller, Chairman Florence B. Robin, Executive Director Ralph J. Temple, Legal Director, ACLU Fund

AMERICAN CIVIL LIBERTIES UNION COMMITTEE If you were arrested, call TO PROTEST 483-3832 or 483-3833 THE VIETNAMIZATION OF AMERICA or come to the ACLU office or return this coupon •.• ...... Dr.. ·UlenLenchek Annette Klayman Philip Sorsenson I was/know someone who was 0 arrested 0 a witness. ~ Pl1ilip ]. Hirsellkop Robert A. Klayman Please send affidavit form(s) to: : Milton Viorst Russell B. Stevenson, ]r. Barbara Raskin quantity : Judith V1orst Hon. Louis Stokes .Warcus Raskin NAME ______~ Hon. Parren J, Mitchell Dr~ Earl Callen Hon. Herman Badillo Bruce Terris ADDRESS------Addison M. Bowman Dr. JJ.fary Coleman Rev. Channing Phillips CITY STATE ____ ZIP _____ James M. Johnstone Robert Choate Philip M.. Stern illrs. Jerome Jacobson Rel". Philip R. Newell, Jr. MAIL TO: American Civil Liberties Union Topper Carew of the National Capital Area Polly Shackleton Hon. William F. RYan Han. BellaAbzug 1424 16th Street. N.W. Cl HlJn. ]olm Conyers, ]r. Howard C. Eglit Washington, D. C. 20036 ~ Richard ,IJarnet David Carliner Hon. Walter E. Fauntroy Julius Ilobson ...... : Dalid H. Marlin Marvin Caplan Fr. William Wendt Jacqueline Marlin Lola Johnson Singletary William Simons Stuart H. Johnson, Jr. ]osephForer If you want to help ... Hon. Ro11 Dellums Barbara S. Heller Da1-idRein .;lfonroe H. Freedman ...... Hope Eastman Hon. William Clay Rev.. David Eaton Rev. Edgar Lockwood ~lficlJaeJ Ambrose Allison W. Brown, Jr. Here is my check to help Jolm Vanderstar Reed Whittemore Rev. Tbomas B. Allen of America. Elizabeth M. Stern Dorothy Butler Gilliam ]aneF.AHen Sam Smith. Hon. Donald Fraser Hon. Charles B. Rangel NAME ______Ralph H. Dwan, Jr­ I. F. Stone Donald A. Brown Rabbi Eugene Lipman Hon. Richard L. OttiDger ADDRESS ______AnnW.Brown Glen Carroll Betty Ann Ottinger Rev. JoeL. Gipson CITY STATE ____ ZIP------John R. Risher, Jr.

MAIL TO: American Civil Liberties Union of the National Capital Area (eommittee iu formation) 1424 16th Street, N.W. .A1\fERICAN CIVIL LIBERTIES UNION ; Washington, D. C. 20036 Edward J. Enni&, N2tional Chainnan • Ramrey Clark, Chairman, National AdvillOry Council • Aryeh Neier, Exeeuth

- --=- "'~" C... ·" .c;·····:... ~C.·''----~-~~-~-~;;;;-~ ~ ."":.;..~~=---- ~-~-·-~::=:-:::- -~~ - ~~~--- Independently, the People's Statehood Party Restraining Order by granting an injunction to go led by Julius Hobson had begun to collect affida­ into effect immediately, which stopped the vits, and these too, were turned over to the government from maintaining prosecutions that ACLU. The Public Defender Service referred were not "in good faith," i.e., those in which individual defendants interested in affirmative there was no evidence and no possible hope of action to the ACLU, and these referrals ac­ securing a conviction and where the cases had counted for more than 100 affidavits. Altogether, been brought for purposes of harassment. It the ACLU collected over 1,000 affidavits to required that in order for a prosecution to be a support its litigation and this report. good faith prosecution, the government must . ;· screen all the cases to determine those in which ·.; there was bona fide evidence. 'r' J,, I :,·:li; Sullivan v. Murphy ',' I There was a courtroom exchange that illumi­ nated the government's position. Questioning Mr. On May 24, the ACLU argued its first affirma­ Freedman, Judge Bazelon said, "I gather that tive suit in U.S. District Court. It was called what you are asking this court, Mr. Freedman, is Sullivan (Nancy Sullivan) v. Murphy (Francis for a minimum delay in which the government Murphy, D.C. Corporation Counsel) and was a would have time to screen its cases to determine class action suit to enjoin the prosecution of all which of them are good faith prosecutions." Mr. those who had been illegally arrested on May 3 Freedman replied, "Even less than that, your and against whom there was no evidence. (A class honor. If the government is prepared to tell this action suit is one in which a small group of court in good faith that it has cases which can be individuals sue to vindicate not only their own prosecuted, we will be prepared to exclude those rights, but the rights of a much larger group bona fide cases from our request for relief right having similar claims.) The suit was brought to now." end the government's practice of forcing people to come from long distances to appear for trial, The Court then asked Mr. Sutton, the govern­ only to find that their cases had been dropped. ment prosecutor-on the basis of his previous strong assertion that all of his cases were "good" But beyond that, if a defendant did not appear cases-to specify which cases would be brought to for his or her trial date, the government without trial. Mr. Sutton first answered that he could not exception insisted that in this particular case it respond directly. When pressed by the Court, he had all the evidence it needed and demanded that replied, "We prefer to deal in generalities, your collateral be forfeited resulting in a "guilty" honor, not specifics." verdict.

Sullivan v. Murphy was argued before U.S. The Court of Appeals dealt with the govern­ ment's practice of not notifying defendants that District Judge George Hart by Monroe Freedman, the ACLU's special Mayday counsel. Judge Hart their cases had been dropped. It required the denied the AC LU 's request, and Freedman sought government to notify each defendant whose case and obtained an emergency appeal to the U.S. had been dropped, in time for him to avoid the Court of Appeals. trip to Washington, that he need not appear.

On May 26, a three-judge panel of the U.S. By requiring the government to show in each Court of Appeals, Chief Judge Bazelon and case that it had "a good faith" prosecution, the Judges Wilkey and Tamm, unanimously reversed Court of Appeals, in theory anyway, put an end Judge Hart and in effect granted the Temporary to the whipsawing of the defendants.

62 PI

I[

The Corporation Counsel's office, in compli­ with two or three other young people whose ance with the Court of Appeals' ruling, was cases were dropped. Mr. McCarthy appeared in Ill' compelled to drop 2,400 May 3 cases, but main­ Superior Court on the day set for trial. He was II I tained it had neither the staff nor the manpower met at the door of the courtroom by a represen­ j, to notify all the defendants. Out of his concern tative from the Corporation Counsel's office who for all the people who had been penalized by informed him that the case had been "no­ \ forced trips to Washington, Mr. Freedman volun­ papered," that is, dropped because they had no I teered that the ACLU would do the notifying. evidence. To our knowledge, the Corporation Counsel has not brought any of the remaining 23 1 !;'11 Those who got the ACLU notice and followed so-called "good" cases to trial. :il '•tl its instructions eventually got their collateral j!'• :ii returned to them. But illegible lists, lost files in The original filing of Sullivan v. Murphy had the Corporation Counsel's office and a bureau­ been confined to May 3 arrests, with no initial ;li cratic attitude of elephantine slowness com­ decision having been made by ACLU lawyers on 1,! pounded by hostility caused the process to take what to do about the May 4 arrests in front of between six and nine months. the Justice Department. The indecision was ,j caused by the newspaper accounts which stated I Many of those whom the ACLU could not flatly that the demonstrators had been given reach read about the Court's decision in the notice to disperse, and that only those who newspapers and called the Clerk of the Superior refused to disperse and were blocking the street Court directly. The ACLU learned that the Clerk were arrested. In addition, the newspapers I of the Court would respond to the question: "I reported that field arrest forms were filled out i read that my case was dropped. Does that mean and contemporaneous photographs taken. that I don't have to appear for trial?" with this li bit of doubletalk: "Yes, you must come for trial But as the affidavits began to flow into the \I on the date set down in your collateral receipt." office, an entirely different picture emerged. Affi­ i;~ i ant after affiant swore that he had tried to leave ::;:1 ji, Independent checks by the ACLU staff, which and was prevented from doing so. Still others I;! made calls to the Clerk's office and posed the attested that they had not heard the order. Then ll same question, confirmed that the Court staff the facts emerged in individual court cases, 1: was indeed not complying with the Court of defended by the Public Defender Service and l1j Appeals ruling. After three weeks of additional confirmed in the affidavits, that the field arrest I. demands and finally threats of contempt peti­ forms were not made out by the arresting officers il tions, correct instructions were issued to the nor were the photographs taken with the arrest­ ',1 clerks. In the meantime, scores of defendants had ing officers. As a result of these facts and the ,,,.

,! come into town to appear for trials which were follow-up investigations done by the ACLU of . no longer scheduled. the affidavits, the ACLU amended its original ' ' Sullivan v. Murphy complaint to include the May ··! Simultaneous with the announcement of the 4 Justice Department arrests. It also asked for the dropping of 2,400 May 3 cases, the Corporation expungement of all arrest records which were not Counsel's office announced that it would bring followed by convictions. 24 "good" May 3 cases to trial-cases which had been carefully screened in advance and in which The amended complaint was drawn up by the evidence was found to be conclusive enough Edward Genn, an ACLU volunteer lawyer, who to lead to a conviction. The first of these cases argued the case before the U.S. District Court was that of Michael McCarthy, Senator Eugene Judge Corcoran. The judge turned the Temporary McCarthy's son. Mr. McCarthy had been arrested Restraining Order into a preliminary injunction

63 but limited the relief asked to that already within twenty days a memorandum setting forth granted in the original Temporary Restraining the following: Order. His ruling meant that the expungement of • the total number of persons arrested in con· • •;; arrest ·records, which had not been dealt with by nection with Mayday activities from April ... the Court of Appeals, was excluded as a form of 1 28, 1971 to May 5, 1971 " ' relief for the Mayday cases. I: • the disposition of all cases, indicating the Mr. Genn and Mr. Freedman appealed Judge number of dismissals, no-papers, convic· r Corcoran's ruling to the U.S. Court of Appeals. ,tions, acquittals and forfeitures of collateral On October 1, the Court of Appeals panel, com­ posed of Chief Judge Bazelon and Judges Leven­ • the number of dismissals, nol prosses and thal and Robinson, heard argument and issued a no-papers attributable to the lack of field sweeping order the same day. The order con­ arrest forms, photographs or inability of firmed the previous order and broadened it, and witnesses to identify the persons charged it also considered the question of expungement. • the number of persons who had sought The Court of Appeals directed the District expungement in the Superior Court and the Court to issue a whole series of orders to the number of cases in which it had been D.C. Corporation Counsel: granted • a statement of what legitimate govern· 1. Not to prosecute anyone until his or her mental interests would be served by main· case had been fully screened, including, as a taining the arrest records of persons who minimum, interviewing prospective wit­ were nesses. a) arrested without probable cause 2. To complete this screening process in time b) arrested on probable cause which later to notify defendants whether or not they proved to be insufficient to warrant were required to appear for trial. trial 3. To set aside forfeited collateral in all cases c) arrested on probable cause and not except those which the screening process determines there is a bona fide case against convicted. the person who forfeited the collateral. The ACLU filed a lengthy memorandum on the legal aspects of expungement, but the govern­ 4. To enjoin the dissemination of arrest ment secured a delay of many months. Despite records except where the individual was this extra time, it failed to come up with the convicted of an offense. answers to the Court's questions about who had been arrested, and the disposition of their cases. 5. To have all copies of arrest records returned The government has still not explained discrepan­ to the D.C. Police Department except the cies in its figures, and has not yet provided a records of those convicted. (This part of day-by-day breakdown of the disposition of the the order applied primarily to the FBI.) cases:

The Court of Appeals then turned to the • According to an affidavit filed by the Cor· question of expungement. It directed the govern­ poration Counsel· on June 10, a total of ment (and also· invited ACLU counsel) to file 13,245 individuals were arrested from April

64 28 through May 5. But according to the defense ·of two of the eight. Much of the material II police computer run-off approximately quoted in Chapter V of this report is taken from 14,164 individuals were arrested in the the transcript of the trial of the eight Capitol same period, leaving 919 individuals not steps defendants-the police permission and assis· accounted for in Mr. Murphy's affidavit. tance to gather on the stepS, the cordoning off of the area and the simultaneous arrest of the audi· <1·11 '1'1 • A breakdown of arrests prepared by the ence, the inaudibility of the notice to disperse, \;! Executive Officer of the District of Colum­ and all the other events described in the earlier r:ii, bia Courts, shows a total arrest figure of chapter were brought out at this trial. :;I 13,436, creating another total different ,i'·q'·' 1 from both that of Mr. Murphy and the Following the thirteen day trial, it took the ri Iii police. jury less than four hours (including lunch) to 'L~ acquit all eight defendants. rlr, • No correlation has been made between the ·~ arrests on a given day and the disposition Four weeks later, on August 27, the U.S. !~ of the cases. Thus, for example, the District Attorney's office announced that it had dismissed ·d,~ of Columbia Courts' breakdown shows that charges in the 800 Capitol steps cases still pend· ~I of the 13,436 individuals they say were 1',1~ ing with the statement: "Jury verdicts of guilty ,:1 arrested, only 128 were found guilty after in the remaining cases are highly unlikely." ;1•1 ~f trial. One might speculate that these 128 I verdicts stemmed from arrests made on ' .i '-li April 28-30 and May 2, and not from the ~ May 3, 4, or 5 arrests, but based on the I· :I present information supplied by the Corpo· Jeanette Rankin Brigade v. Powell ration Counsel's office, there is simply no :1'~I i!,l' way of telling. On June 8, 1971, the ACLU represented Reps. ,., I I ~ Bella Abzug and Ron Dellums in intervening in Finally, on March 24, 1972, ACLU counsel ~ an ongoing case, which challenged the statute n Freedman and Genn, joined by volunteer attor· ~I barring assemblages on the Capitol grounds and I ney William Sollee, filed a document containing its selective enforcement as a violation of the 'I' the items of information and statistical data that First and Fifth Amendments. As we have noted it believed could be agreed to by both sides, plus I earlier, the Capitol steps is the traditional gather­ a listing of information and data which should ing point for rallies of every description, and the have been, but was not, supplied by the govern­ statute was invoked by the government only on ment. At the time this report was prepared, the occasions when it disapproved of the particular government was preparing a response to that demonstration. The suit sought an injunction document. This case will then be decided by the against the selective enforcement of the statute. Court of Appeals. John Quinn was the volunteer attorney in this case; Ralph Temple, the ACLU Legal Director, argued it in U.S. District Court.

Defense of Capitol Hill Arrestees On May 9, 1972, a three-judge federal court issued an order declaring unconstitutionally vague The first eight cases of individuals arrested on the Capitol grounds "disorderly assembly" statute May 5 on the steps of the Capitol were tried and enjoining, among others, Chief Powell of the together. Monroe Freedman undertook the Capitol Police, from interfering with those who

65

~- peaceably assemble on the Capitol grounds to cution of May 3 and May 4 arrestees and have petition the government for a redress of griev­ their arrest records expunged. In addition, on ances. Monday, May 1, 1972, the ACLU filed a class action damages suit which, in addition to asking money damages for each of the 7,000 individuals Dellums v. Powell arre~ted on May 3, also seeks to enjoin future :t police misconduct and the illegal conditions of '': detention. On November 11, 1971, the ACLU filed an individual action on behalf of Rep. Dellums, and a class action on behalf of the 1,200 people arrested on the Capitol steps while listening to Allnut v. Wilson Dellums and other Congressmen speak. The suit, handled by Monroe Freedman, Warren Kaplan A separate damages and injunction suit on and Philip Hirschkop, argued on Dellums' behalf, behalf of May 4 arrest(les at the Justice Depart­ that the government violated Rep. Dellums' right ment asking for the same relief as in McCarthy v. to speak with his constituents and to discharge Kleindienst was filed on May 3, 1972, by Mr. his duties as a member of Congress. Freedman and Mr. Temple. On behalf of the class, the suit charges false The three cases described above are all pending arrest, false imprisonment, unlawful searches and in U.S. District Court in the District of Columbia. seizures, assault, battery, malicious prosecution, negligence and conspiracy. It further charges violation of the class' First Amendment rights to peaceable assembly, free speech and petition for Other Litigation redress of grievances. West Potomac Parle A Public Defender Service The suit asks for money damages against the attorney represented several hundred people ar­ government to compensate the class for the viola­ rested in West Potomac Park on May 2, 1971. At tion of their rights and for the injuries they the conclusion of a three-week hearing, Chief sustained; and Judge Greene granted his motion to dismiss the charges, ruling that the Government had violated For an order insuring the recall and destruc­ its contract with the Mayday demonstrators by tion of arrest records; and failing to consult with their representatives before revoking the permit. For judgment declaring the arrest and criminal accusation null and void, so that each member of Lafayette Park: James Johnstone, an ACLU the class may assert that he or she has not been volunteer attorney, defended test cases from a "arrested" within the reasonable and lawful group of 200 Quakers arrested in Lafayette Park meaning of that term. on May 2, 1971, in a Mayday-related case. The government, aware that the federal courts were dismissing Mayday cases almost without excep­ tion, elected to bring the Quaker case in D.C. McCarthy v. Kleindienst Superior Court. The government's case was dis­ missed on the basis that the Park regulation is a Sullivan v. Murphy, described in some detail federal regulation, not within the jurisdiction of earlier in this chapter, sought to enjoin the prose- local courts.

66 Individual Damages Suit: The law firm of with arrest records for the rest of their Iives. And Rauh and Silard has brought an individual it is not enough for the government, which has damages suit on behalf of about 30 people ar­ demonstrated a stolid ineducability about the rested on May 3. This case is pending in U. S. sanctity of individual rights. District Court. So the first purpose of the affirmative suits Medical Committee on Human Rights: Rauh was to compensate those arrested-to the limited and Silard are also representing the Medical I extent that money damages can compensate-for I Committee on Human Rights which was denied the injuries they suffered. access to arrestees despite an agreement with the !i :II government to permit them to give them medical The second purpose is to drive home to the aid. government the high cost of violating individual !I rights. l' * * * ! The initial suits brought by the ACLU to The third and most important purpose of the enjoin the prosecution of those arrested during ACLU's litigation is to end the collection and Mayday resulted in vindication of the ACLU posi­ dissemination of arrest records. We do not need tion that the arrests were illegal. to speculate on whether the mass arrest and processing techniques which characterized May­ The affirmative suits were brought out of our day were motivated primarily by the govern­ conviction that vindication is not enough. It is ment's desire to add to its dossiers on political not enough for the people who were subjected to dissidents. We do know that this has been the arrest, detention and the attempt to brand them result.

67

i·l !:;

'~ X. CONCLUSION

':I In the aftermath of Mayday, the President, the into a national emergency. Whatever other :,i Attorney-General and the Washington press drove reasons motivated the government's course, ll! home the vision of a well-disciplined police force better law enforcement was not among !!1: responding to a national emergency with "firm­ them. ness" and "restraint." The President and the Attorney-General lauded the Mayday operation as • "There was no other way." No other way a "model" to be used in similar situations in the was contemplated, let alone tried. The future. It is hardly surprising, in the face of this government force of police, special police propaganda barrage that three weeks after May­ and National Guard on May 3 numbered '·II!" day a national opinion poll found that 76% of more than 14,000-that is two officers for !::! .I: those queried approved of the Government's every single person arrested, more than ,, handling of Mayday. enough to effectuate individual arrests of II; every single traffic blockader. ill::

In the past year, perhaps the vision has With advance notice of the exact points of 1 become somewhat less distorted. The systematic 11· planned traffic blockage and modern tech­ . litigative response of the ACLU that resulted in ,,Tl'l.' nology, including television recording of ;,i~i the dropping of all the charges, and the system­ events, it is inconceivable that no other ji.: atic rejection by the courts of the Government's method could have been devised to prevent position in each legal test, have had a measurable traffic blocking than sweep arrests. Indeed, impact. Also, the re-examination by the press of sweep arrests caused that very condition law I :11 Mayday-belated and reluctant though it was­ enforcement agencies should have pre­ raised new doubts about the wisdom of the vented: they made certain traffic areas II' Government's actions. dangerous for innocent persons to be in. i:l Iii The simple expedient of cordoning off the II But the myths of Mayday persist, obscuring sidewalks and allowing crossing only at !I the truth of the events just past and increasing II heavily controlled intersections would have ,I the risk that the Government will feel free to been sufficient to keep the traffic moving I! repeat the Mayday operation in the future. without sweep arrests of non-violators. II ,;I Among the most dangerous myths of Mayday: • "The police behavior was exemplary." The police behavior was a striking example of • "The National existence was at stake." The the abdication of law enforcement leader­ government was faced with a disruptive, ship. Police violence does not flourish with­ illegal tactic which threatened to slow rush­ out the open or tacit acquiescence of police hour traffic. The government chose to esca­ officials. Where officers are made to under­ late a difficult police and traffic problem stand the limits of their authority, and the

69

,~ disciplinary consequences of overstepping deal with the problem. But during Mayday, the that authority, police misconduct can be government had available to it some old, but kept to a minimum. No such restraints were perfectly workable ideas, many of them devel­ imposed on the police during Mayday and oped from the investigation of the 1968 dis­ we do not know of a single officer who was orders. These already existing recommendations ,: :.. disciplined for his excesses. would have proved invaluable during Mayday if the government's goal had been to safeguard • "The Government has a right to suspend individual liberties while enforcing the law. the Constitution in an emergency." That Clearly that was not the government's goal. right is narrowly restricted to the gravest of emergencies and only when martial law has We have no recommendations to the govern­ been declared. But the government did not ment about traffic control, or arrest forms, or declare martial law because it had no basis humane conditions of detention. The appropriate for doing so. Within the microcosm of May­ and legal ways of dealing with these aspects of

! I day itself, we can observe how erosive of Mayday were known to the government then and I' our individual rights this particular piece of are known to it now. mythology is: The Constitution was sus­ 1: •_i pended on Monday on the false ground of This Report's Conclusion, therefore, is not a ! an emergency. On Tuesday, in front of the recommendation, but an admonition: It is the Justice Department, and on Wednesday on duty of our leaders and the function of law the Capitol steps, even these false grounds enforcement to uphold the law and to enhance could not be fabricated. But by then, the adherence to law and lawful means. When govern­ government had had a taste of illegal ment resorts to lawlessness in combatting lawless­ powers, and emboldened by it, did not hesi­ ness, it does more to undermine the spirit of law tate to suspend the Constitution again. and respect for the rights of others than acts of civil disobedience or even violent crimes. In This report was written to dispel the mythol­ today's violent atmosphere in which the Rule of ogy of Mayday. When a report such as this ana­ Law is becoming increasingly attenuated, the lyzes the background and chronology of a social Government has an especially important responsi­ disturbance, it traditionally concludes with a bility. For, as Justice Brandeis said, government is chapter of recommendations about how the prob­ "the omnipresent teacher ... If the government lem could have been avoided in the past and how becomes a law breaker, it breeds contempt for it can be averted in the future. The studies of the law; it invites every man to become a law unto disorders following Dr. King's murder and of the himself; it invites anarchy." more recent Attica prison uprising, are two examples of such carefully drawn recommenda­ * * * tions. We have talked about the distorted vision of But recommendations are useful only if it is Mayday that has been widely accepted by the recognized by the responsible authorities that the public. There is another, less widespread, but event being analyzed was a disaster and ought to equally serious distortion: The people who came be avoided in the future. There is no evidence here to blockade traffic did so because they had whatsoever that the government, even now, a nightmare vision of America society­ regards its actions as having been inappropriate. unresponsive leaders, violent police, inhuman prisons and corrupt courts. Mayday transformed Furthermore, such recommendations are useful their nightmare into reality, not only for them­ only if they set forth new ideas about how to selves, but for its innocent victims as well.

70 S3:>ION3dd'v'

APPENDIX 1. FIELD ARREST FORM

1--- --·------o.o. METROPOLITAN POLICE DEPARTME:NT .,.. WASHINGTON, D.C. FIELD ARREST FOro\! '

.,.TE T ... E ..... sER. No. 1,aoo SER. NO . 1 8 P,M, 1 NAMII GIVEN AT TIME OF ARREST tl :I NAMI! IF FOUND TO SE OIFF'SRENT FROM AaOVE. I

CHARCI!. I i[ LOC:IIITION OF ARREST : ~

C:OMFtLAINANT/!5 NAME OR BUSINESS .t.OORE!S 'I,, :I :li IIRI&F DESCRIPTION OF CIRCUMSTANCES OF ARREST ;i :: l;lr 'I

~ il 11.1 ~I i I~ ~ BAOOE ils OF WITNESSING OFFICERS '~ I I I ARRESfiNG CFFICER UNIT I~ i

TRANSPO~:~~-::_ =rSPORTED TO PROPERTY------1 Ij D PRISONER/3 PROPER'rv D ABANOONEO 'I D EVIOE".NCE D SUSPECTED PROCE:i.DS I

r OWI'Io;:RSriiP D OWNER NAME (IF KNOWN) I '0 -KNOWN UNKNOIVN I I I D ?05:5\0SL E C'IIN ER I! i-;&;-;R;;I:;E,.,F;-;:O:;C;';,s;';C:;RoCIC;P;':TOci;;OC:N:;-,0 F P R 0? E R T Y 1------··------­

~---~------~

73 j,

, 'I' 'i' ,, APPENDIX 2. U. S. COURT OF APPEALS ORDER IN SULLIVAN V. MURPHY 'mnif:ci'k EPfaf~$ @.t:ourt nf Apprt~ls FOR THE: DISTRICT OF COLUM<31A CIRCUIT

·:' n-1632 n I. No. September Term, 19

Nancy Sullivan, et al, Civil Action 1022-71

I Appellants I,: Unite'd States Court" of Appeals v. for the District of Columbia Circu•l C. Francis· Hurphy, Corporation fiLED OCT 1 1971 Counsel of the District of Columbia, et al. '1!a:l-ta.,.., 0--P~ Before: Bazelon, Chief Judge, Lc~~VaM and Robinson, Circuit Judges

This cause came on for consideration of appellants' motion for SUirunary reversal of partial denial of prelimipary injunction and of appellees' motion for summary affirmance, and the Court heard argument of counsel.

On consideration of the foregoing, it is

ORDERED by the Court that the order of the District Court denying the injunctions· requested is reversed and vacated to the extent that such denial is inconsistent with the injunctions hereafter provided for, and it is

FURTHER ORDERED by the Court, it appearing that for each case still pending a field arrest report and contemporaneous photograph exist, that the District Court enter an order providing further protection by enjoining appellees from prosecuting appellants or any member of the class they represent until a screening by appellees, which shall include at least interviewing prospecetve witnesses, dis­ closes that a prima facie case exists against the person charged, and it is

FURTHER ORDERED by the Court that the District Court direct that the screening process be done in sufficient time before the date the person must appear so that adequate notice can be given to the person charged whether he is or is ·not required to appear and that appellees take all reasonable steps to assure that such notice is given to the person charged, and it is

74 ~nit~il ;f])taf~BI illnurf nf i\Keu~tt!a Jj. 1'­ FOR THE: DISTRICT OF COI..UMOIA CIRCUIT

No. n-1632 September Term, 19 n -2-

FURTHER ORDERED by the Court that the District Court issue an injunction directing appellees co set aside forfeited collateral un­ less appellees, after·-a. screening o[ the case, have both assured that vrobablc cause existed for the arrest ~_al~~ after interviewing the I witnesses who \~ould have been called, determined and represented to the 1fl court in good faith, that a prima facie case exlsfe,r against the person ,I who forfeited collateral, and it h -- ·- I FURTHER ORDERED by the Court that the District Court direct appellees to I,I submit a report within a reasonable time demonstrating compliance with the ,:f injunction entered pursuant to our earlier order in this case and the injunction I to be entered pursuant to our present order, and it is ,I ;· IIi FURTHER ORDERED by the Court that the District Court enjoin appellees from disseminating the arrest records of any member of the class to any person, I group or agency for any purpose unless and until the party is convicted of the 'I ·I offense with which he is charged, and it is ,, ' FURTHER ORDERED by the Court that the District Court direct appellees to determine whether any party to whom the records had been disseminated made copies or otherwise reta~ned the records and if so to enter an order that such copies be returned to the District of Columbia Metropolitan Police Department except fo~ the records of those persons convicted of the offense charged, and nu FURTHER ORDERED by the Court that both appellants' motion for summary reversal and appellees' motion for summary affirmance of the District Court's ruling that the question of expungement was not properly before it are held in abeyance pending further consideratLon, ·and the Government is directed to file ·a memorandum wJ.tn th1!iCOurf-mthin t"iemty (,?0) days from the date of this Order setting fortn the following, relevant to the Tssiie "of expungement:

the total number of persons arrested in connection "7ith May Day activities from April 28, 1971, to May 5, 1971

the disposition of all cases, indicating the number of dismissals, nol presses, no-papers, convictions, acquitals, and forfeitures of collateral

the number of dismissals, nol presses and no-papers attributable to the lack of field arrest forms, photographs or inability of witnesses to identify the person charged

75

oi&. §fu]bl?z @tott:rf Cut 2\pprn:ds FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 71-1632 September Term, 19 n -3- the number of persons who have sought I.) expungcmcnt in the Superior Court and j;. the number of cases in which it has been granted.

a statement of what legitimate governmcnta interests could.bc serve y maintaining the arrest records of persons who were

(a) arrested without prob~ble _ca,use (b) arrested on probabla cause which " later proved to be insufficient i i to warrant trial · (c) arrested on probable cause and not

,,i• convicted.

(If they so desire, appellants may file a memorandum within this twenty day period responding to this question.)

~Curiam

I , I I I '

~.·1'1II I',] I ~'I 76 I

'II APPENDIX 3. ACLU AFFIDAVIT AMERICAN CIVIL LIBERTIES UNION

Please Return This To: The American Civil Liberties Union Telephone: 483-3830 Suite 501, 1424 16th Street, N.W. Washington, D.C. 20036

If there is not enough space for details, please use backs of pages. Add any information you think lawyers should know. List any witnesses with addresses and phone numbers. If you were not arrested please give information from personal observations as to the questions,

I. GENERAL INFORM!\TION. 1. Name: 2. Home address:

3. Home telephone number: 4. Local address:

5. Local telephone number: 6. We plan to use this information for lawsuits or publicity. May we (a) publish this information under your name? _____ (b) ask you to testify about it? (c) use this affidavit in suits? ------7. Are you willing to be a plaintiff in an action for relief, including expungement of arrest record and possible damages? (a) Yes (b) No (c) Not sure

II. ARREST. 8. Date, time and place of arrest:

9. Describe in detail the circumstances of your arrest, including where you were, what you were doing, where you were going, how many others were with you, etc. 77 i ! I li -2- i!\ . ! 10. Name and badge number of arresting officer.

11. Was a field arrest•;:tiorm filled out·? ,,,Or were you ;;other­ wise asked for identification?

12. Describe any mistreatment or violence at time of arrest.

I 13. Were you informed of any charges and if so what?

III, BOOKING. 14. Date, time and place where you were "booked" or "processed."

15. Was an arrest form filled out and if so was it an 8 1/2 by 11 inch furm?

16. What was the charge, time, place and arresting officer?

17. Were you fingerprinted and photographed?

18. Comments about processing:

78 -3- IV. DETENTION, 19. Names and address of places where you were detained?

~ Address Date & time Date & time of arrival of departure

20. Total time from arrest to release (hours):

21. Approximate number of demonstrators in each facility:

22, Approximate size of cell or enclosure:

23. Number of people per cell or enclosure:

24, Services available (describe each and note if only part of group had access to it, or did everyone): I: a, Shelter and blankets:

b. Toilets:

c. Water (how often):

d. Food (when, what, and from what source):

79 e. Medical attention (any specific incidents):

: ' i

f. Legal counsel (when, who, where from):

g. Other relevant items (bail interview, violence, etc,):

25. Describe conditions and treatment during detention other than above:

V. FQR EACH, TELL WHEN, HOW OFTEN & WHO ALLOWED IT: 26. Were you allowed a phone call?

27. Could you see a lawyer on request?

28. Were legal proceedings that were to take place in court described to you? By whom?

29. How, where, by whom, and under what conditions or stipulations were you released?

80 1 swear or affirm that the foregoing information is true to the

best of my knowledge, information and belief:

Signature ------

Subscribed and sworn before me, a notary public in and for the

District of Columbia this day of , 19 ____ :

Notary Public

81

'"'· AMERICAN CIVIL LIBERTIES UNION of the NATIONAL CAPITAL AREA

David B. Isbell ....Chairman Hal Witt .... . Vice-Chairman Michael Ambrose .Treasurer Mary Coleman ...... Secretary

Florence B. Isbell ...... Executive Director Ralph J. Temple ...... Legal Director, ACLU Fund Robert A. W. Boraks .Assistant Legal Director, ACLU Fund

ACLU-NCA - 1424 Sixteenth Street, N.W. Washington, D. C. 20036 'ilI i I ' ,: 'I 1 ''

! i

' ·.1 :I I

American Civil Liberties Union of the National Capital Area 1424 - Sixteenth Street, N.W. Washington, D.C. 20036