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A Legal View James P Notre Dame Law Review Volume 43 | Issue 6 Article 10 1-1-1968 Long, Hot Summer: A Legal View James P. Gillece John A. Macleod Gerald J. Rapien Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation James P. Gillece, John A. Macleod & Gerald J. Rapien, Long, Hot Summer: A Legal View, 43 Notre Dame L. Rev. 913 (1968). Available at: http://scholarship.law.nd.edu/ndlr/vol43/iss6/10 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. SURVEY THE LONG, HOT SUMMER: A LEGAL Vmw I. Riot Prevention A. Introduction The number and severity of race-related disturbances has increased steadily from 1961 to 1967.1 In the search for the causes of this violent civil disorder, the conclusion most often reached is that the riots are a direct attack on the conditions of slum ghetto existence.2 Therefore, the most effective anti-riot legislation is undoubtedly that in the form of social and economic measures designed to eliminate the root causes of poverty and discrimination. However, as long as the conditions which spawn the riots exist, it is essen- tial that law enforcement officials be prepared to suppress the disturbances promptly whenever they occur. The purpose of this Note is to examine selected legal problems that arise in the context of mass urban disorder and to suggest possible solutions. First considered is an analysis of the legal foundations of the police and military functions pertinent to riot prevention and control. Then, the scope of the suppression power during the actual riot situation is delineated. Finally, an in-depth treatment is offered on the possible sources of recovery for riot victims who attempt to assert their claims in the aftermath of the disaster. B. State Statutory Controls 1. State Powers and Duties The primary responsibility for keeping the peace by the prevention and suppression of disorder falls upon state and local law enforcement agencies. This is in accord with the principle that the general duty of the administration of 1 For a comprehensive city-by-city outline of racial disturbance from 1961 to September 25, 1967, see P. Downing, "Race Riots, 1961 to September 25, 1967," Civil Disorder (Legislative Reference Service of Library of Congress, Aug. 4, 1967). As of July 27th, 1967, the total riot costs for the year 1967 were summarized as follows: Number of riots: 42 Killed: 78 Injured: 3,120 Arrests: 7,050 Property Damage: $524 million These figures were gathered from newspaper reports and reprinted in 36 CONG. Q. 1707 (Sept 8, 1967). 2 PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 37 (1967). See generally GOVERNOR'S COM- MISSION ON THE Los ANGELES RIOTS. VIOLENCE IN THE CITY - AN END OR A BEGINNING? (1965). The National Advisory Commission on Civil Disorders has pointed out that one of the most "bitter fruits" of "white racism" has been the formation of Black ghettos. These ghettos are an integral part of the "explosive mixture which has been accumulating in our cities since the end of World War II." NATIONAL ADVISORY COMMISSION ON CrvrL DISORDERS, REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 203-04 (Bantam ed. 1968) (hereinafter cited as RIOT COMMISSION REPORT). 913 NOTRE DAME LAWYER [Symposium, 19683 criminal justice rests with the states.' The riot itself, and any crimes committed during its course, such as murder, assault, arson, theft and vandalism, are all violations of state law. Therefore, it is necessary to examine and evaluate the existing legal machinery that states employ to cope with urban racial violence. State provisions dealing with the riot situation generally follow a pattern formulated by the common law. Three distinct common-law crimes pertaining to the disruption of public order were recognized by Blackstone. "Unlawful as- sembly" occurred when three or more persons assembled with the common in- tention of performing an unlawful act in a violent and tumultuous manner.' If action was taken to further this illegal cause, the activity was characterized as a "rout..". "Riot" itself was committed when the mob actually employed force or violence to accomplish its illegal purpose.' Several states have no statutory provisions relating directly to riot7 and thus still rely primarily on these common- law definitions. Other states maintain the common-law crimes as a supplement to their statutory enactments.8 These riot statutes themselves, although varying in form, incorporate the common-law dichotomy between unlawful assembly and riot.' The crime of rout is usually either abandoned or merged with unlawful assembly." Thus, the fundamental state legal tools for the protection of the public order from violence are based on the common-law conception, of riot, supple- mented by statutory prohibitions against disorderly conduct and breach of the peace." 2. State Statutory Scheme a. Unlawful Assembly Unlawful assembly statutes have as a basic requirement the assemblance of at least two," and usually three," persons with the common purpose of performing an unlawful act. The states are divided as to whether there must be an intention to perform the planned activity in a violent manner. Many states require the presence, or at least the threat, of force or violence disruptive of public order. The Iowa statute is a typical example of this class: When three or more persons in a violent or tumultuous manner as- semble together to do an unlawful act, or, when together, attempt to do an act, whether lawful or unlawful, in an unlawful, violent, or tumultuous 3 Jerome v. United States, 318 U.S. 101, 104-05 (1943). See also United States v. Cruikshank, 92 U.S. 542, 556 (1876); 41 Op. ATT'Y GEN. 313, 322-23 (1963). 4 4 BLACKSTONE, COMMENTARIES *146. 5 Id. 6 Id. 7 For example, the laws of Mississippi, Tennessee, and Wyoming do not specifically define and prohibit a "riot." 8 See, e.g., Commonwealth v. Frishman, 235 Mass. 449, 455, 126 N.E. 838, 840 (1920). 9 E.g., IOWA CODE ANN. § 743.1 (unlawful assembly), § 743.2 (riot) (1950). 10 See, e.g., N.Y. PENAL LAW §§ 240.00-.10 (MbKinney 1967). Contra CAL. PENAL CODE § 406 (West 1955). 11 Disorderly conduct and breach of the peace offenses are considered in the context of demonstration controls in Part C see text accompanying notes 89-140 infra. 12 E.g., ALA. CODE tit. 14, § 407 (1959); CAL. PENAL CODE § 407 (West 1955). 13 E.g., DEL. CODE ANN. tit. 11, § 361 (1953); N.Y. PENAL LAW § 240.10 (McKinney 1967); ORE REV. STAT. § 166.040(2) (1959). [Vol. 43:913] SURVEY manner, to the disturbance of others, they are guilty of an unlawful assembly. ....14 In other jurisdictions, however, the element of force or violence need not be present to sustain a conviction if the purpose of the assembly is unlawful. The California unlawful assembly provision is representative of this latter category of statutes: Whenever two or more persons assemble together to do an unlawful act, and separate without doing15 or advancing toward it, ...such an assembly is an unlawful assembly. In addition to raising constitutional difficulties, 6 such a formulation tends to obscure the basic common-law conception of unlawful assembly as an anticipatory act to a riot. The Supreme Court has upheld state legislation that prohibits assemblies having as their purpose the execution of an unlawful act by means of force or violence. In Cole v. Arkansa' the Court stated that there was "no abridgment of free speech or assembly for the criminal sanctions of the state" to be fastened upon persons "promoting, encouraging and aiding an assemblage the purpose of which is to wreak violence.""' However, convictions under some of the statutes containing vague terminology have been reversed on the ground that the statute's overly broad language failed to establish adequate standards for distinguishing between constitutionally permissible and constitutionally impermissible suppres- sion." These difficulties usually arise when the offense of unlawful assembly is employed in specific cases against conduct that does not pose an immediate threat to public safety.2" Presumably, this argument would not be available to participants who assemble with the intention of creating or furthering the type of disorder that has characterized a modem urban riot. Historically, unlawful assembly statutes were used chiefly to suppress the violence that has often accompanied labor disputes. 1 During the early period of the civil rights movement, at least one Southern state employed this sanction against sit-in demonstrators assembling at lunch counters and department stores.2 Although the terminology of most state provisions is broad enough to cover almost any type of unruly gathering,23 the antiquated forms in which the statutes are cast indicate that they were not intended to cope with modem mass urban 14 IowA CoDE ANN. § 743.1 (1950). 15 CAL. PENAL CODE § 407 (West 1955). 16 In State v. Bulot, 175 La. 21, 142 So. 787 (1932), an unlawful assembly statute was struck down because the lack of a requirment for violence gave police officers too much discretion in applying the provision to peaceful assemblies. 17 338 U.S. 345 (1949). 18 Id. at 353-54. 19 E.g., Wright v. Georgia, 373 U.S. 284, 292 (1963). 20 In the Wright case, the statute in question had been applied to six Negroes whose "unlawful assembly" consisted of playing basketball in a public park that had traditionally been segregated for "whites only." There was no evidence of any activity that could be characterized as a breach of the peace.
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