Duktab3 3founa VOLUME 1975 AUGUST NUMBER 3 THE CRIMINAL PROCESS DURING CIVIL DISORDERSt A. KENNETH PYE* AND CYm H. LOWELL** In a government framed for durable liberty, no less regard must be paid to giving the magistrate a proper degree of authority to make and execute the laws with rigor than to guarding against encroachments t This is Part I of a two-part essay. Part l1 will appear in issue No. 5 of the 1975 DUKE LAw JoURNAL. * B.A., 1951, University of Buffalo; J1)., 1953, LL.M., 1955 Georgetown Uni- versity. Dean and Professor of Law, Duke University. ** B.S., 1969, Indiana University; J.D., 1972, Duke University. Assistant Profes- sor of Law, University of Georgia. THE FOLLOWING CITATIONS WILL BE USED IN THIS ARTICLE: C. CLODE, THE MILITARY FoRcEs OF THE CROWN (2 vol. 1869) [hereinafter cited as CLODE]; E. CoRwiN, THE PRESmENT, OFFICE AND PowEns 1787-1957 (4th ed. 1957) [here- inafter cited as CoRwiN]; C. DOWELL, MnxTARY Am To THE CIV PowEn (Kavass & Sprudzs eds. 1972) [hereinafter cited as MILITARY AID]; C. FAumAN, THE LAW OF MARTIAL RULE (2d ed. 1943) 1hereinafter cited as FAIRMAN] (the second edition is used because of the general unavailability of the 1939 edition); M. FARRAND, THE REcoRDs OF THE FEDER&L CONVENTION OF 1787 (1911) [herein- after cited as FARRA D]; R. IGHAM, ED., BAYONETS IN TIE STREETS, THE UsE OF TRooPs IN CIVIL Dis- TurANcEs (1969) [hereinafter cited as BAYONETS]; R. RANN, WHEN ClviI. LAw FAILS (1939) [hereinafter cited as RANmN]; L. RADzNOWiCZ, A HISTORY OF ENGLISH CRIMNAL Law (4 vol. 1948-68) [here- inafter cited as RADziNowIcz]; B. RicH, TH PRsIDEsNTS ND CIvIL DISORDERS (1941) [hereinafter cited as RICH]; F. WIENER, A PRACTICAL MANUAL OF MARTIAL LAw (1940) [hereinafter cited as WIENER]; REPORT OF THm NATIONAL AV~iSORY COMMISSION ON CIVIL DISORDERS (1968) [hereinafter cited as CIVIL DIsoRDERS REPORT] (the Commission will be referred to as the Riot Commission); To ESTARLISH JUSTICE, To INSURE DOMESTIC TRANQUILrTY, Final Report of the Na- tional Commission on the Causes and Prevention of Violence (Bantam ed. 1970) DUKE LAW JOURNAL [Vol. 1975:581 upon the rights of .the community. As too much power leads to despo- tism, -too little leads to anarchy, and both eventually to the ruin of the people.' I. INTRODUCTION: Civm DISORDERS IN THE SITIES During the last decade, our nation has experienced civil disor- ders with a frequency and intensity that is unique to the American ex- perience. In the cities, on university campuses, and in prisons, large scale disorders posed formidable challenges to the institutions of gov- ernment.2 Although most will be familiar with these disorders, a brief review will help to put the general problems in perspective. [hereinafter cited as VIOLENCE COMiMISSION REPORT] (the Commission will be referred to as the Violence Commission); REPORT OF THE COMMrrrEE ON THE ADMINISTRATION OF JUSTCE UNDER EMER- GENCY CONDITONS, The Judicial Conference of the District of Columbia Circuit (1973) [hereinafter cited as 1973 D.C. REPORT]; RIoTs, CIVIL AND CRIMINAL DISORDERS, Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm. on Government Operations,90th Cong., 1st Sess. (1967) [hereinafter cited as 1967 HEARINGS]; Engdahl, Soldiers, Riots and Revolution: The Law and History of Military Troops in Civil Disorders, 57 IOWA L. REv. 1 (1971) [hereinafter cited as Engdahl I]; Engdahl, Due Process Forbids Soldiers in Civil Disorders, AMERICAN REPORT, November 12, 1971, reprinted in P. DAVIES, THE TRuH ABOUT KENT STATE 212 (1973) [hereinafter cited as Engdah 11]; Engdahl, A Comprehensive Study of the Use of Military Troops in Civil Disorders with Proposals for Legislative Reform, 43 U. COLo. L. Rv. 399 (1972) [hereinafter cited as Engdah 111]; Engdahl, The Legal Background and Aftermath of the Kent State Tragedy, 22 CLEv. ST. L. REv. 3 (1973) [hereinafter cited as Engdahl IV]; Engdahl, The New Civil Disturbance Regulations: The Threat of Military Inter- vention, 49 IND. L.J. 581 (1974) [hereinafter cited as Engdahl F]; Comment, Constitutional and Statutory Bases of Governors' Emergency Powers, 64 MICH. L. REv. 290 (1965) [hereinafter cited as Governors' Emergency Powers]; Note, Riot Control and the Use of Federal Troops, 81 HtIv. L. REv. 638 (1968) [hereinafter cited as Riot Control and Federal Troops]; Note, Honored in the Breach: Presidential Authority to Execute the Laws with Military Force, 83 YALE L.J. 130 (1973) [hereinafter cited as PresidentialAuthority]. 1. A. HAMILTON, The Continentalist,July 12, 1781, II THE PAPERS OF ALEXANDER HAMILTON 651 (H. Syrett and J. Cooke eds. 1961), quoted in C. Rossrrm, ALEXANDER HAMILTON AND Tm CONSTrITiON 21 (1964). 2. See generally J. BASKIN, J. HARTWAG, R. LEWIS & L. MCCuLLOUGR, JR., RACE RELAr E Cnm DISORDERS, 1967-1969 (Lemberg Center for the Study of Violence, Re- port No. 1, 1971); L. BoBEmE, CARTE BLANC FOR CHAOS (1970); D. BOESEL & P. RoSSI, CmEs UNDER SIEGE (1971); J. BosnaN, URBAN RACIAL VIOLENCE IN Tm TWENTIETH C uNTURy(1969); D. BOWEN & L. MASOTrI, CWvM VIOLENCE: A THEORETCAL OvERvmw (1968); R. CONANT, THE PRosPECTS FOR REVOLUTION (1971); R. FOaELSON, VIOLENCE As PROTEST: A STUDY OF RIOTS AND GHETTos (1971); J. MrrcHELL, RACE RIOTS IN BLACK AND WHrrE (1970); A. MONTE & G. LEINWAND, RIOTS (1970); RIOTS AND RE- 3ELLIONS (L. Masotti & D. Bowen eds. 1968); VIOLENCE AND RIO'S IN URBAN AMERICA (R. Allen & C. Adair eds. 1969); G. WILLS, TnE SECOND CwM WAR (1968). Vol. 1975:5811 CIVIL DISORDERS In 1963, serious disorders involving whites and blacks took place in Birmingham, Savannah, Cambridge, Chicago, and Philadel- phia.3 In 1964, civil rights demonstrators were attacked in St. Augus- tine, and blacks rioted in Jacksonville, New York, Rochester, Jersey City, Elizabeth, Paterson, Chicago, and Philadelphia.4 In 1965, the march on Selma and the attack on blacks by whites in Bogalusa, Louisiana, were soon overshadowed by the Watts riot in Los Angeles, in which thirty-four persons were killed, hundreds injured, almost 4,- 000 persons arrested, and damage estimated at approximately $35 million. 5 Violence erupted in Los Angeles again in early 1966, to be followed by forty-two other disorders and riots-the most serious of which occurred in Cleveland where four were killed and in Chicago where three were killed, scores of civilians and police were injured, and 533 persons were arrested before order was restored., The tempo accelerated in 1967. The Riot Commission listed 164 disorders during that year, eight of which were defined as "ma- jor"--characterized as involving many fires, looting, reports of sniping, violence lasting more than two days, sizeable crowds, and the use of National Guard or federal forces, in addition to other control forces.7 In Detroit alone, 7,200 persons were arrested, and 43 persons were killed.8 Thirty-three other disorders were described as "serious"-characterized by isolated looting, some fires, some rock throwing, violence lasting between one and two days, only one sizea- ble crowd and many small groups, the use of state police, and general- ly not National Guard or federal forces. 9 The remaining disorders were regarded as "minor."10 The ink was not yet dry on the report of the Riot Commission before the murder of Dr. Martin Luther King, Jr. sparked a new wave of major disturbances throughout the country in the spring of 1968.11 Similar disturbances were reported in 1969 and 1970, though 3. Cv. Disom Eus REPORT 19. 4. Id. at 19-20. 5. Id. at 20. 6. Id. at 21. 7. Id. at 65. 8. Id. at 60. See 1967 HEARINGS, pt. 5, at 1206 (1968); R. ALLEN & C. ADMAR, supra note 2, at 153-90 (1969); J. BosKIN, supra note 2, at 126-39 (1969). See gen- erally W. HEAPS, RIOTS, USA: 1765-1965 (1966); J. HERSEY, TiE ALGIERS MOTEL IN- cmnEDr (1968). 9. CIvm DISORDERS REPORT 65. 10. Id. 11. It is reported that between 1965 and mid-1968 there were 166 riots and major civil disturbances "in which 189 persons were killed, including 16 law enforcement of- ficers. There were 7,615 injuries reported, of which 1,817 were suffered by police and DUKE LAW JOURNAL [Vol. 1975:581 on a considerably reduced scale, and violence has occurred spasmodi- 12 cally more recently. These civil disorders were primarily racial in character, the typi- cal rioter being a late teenage or young adult black.' 3 Beginning in the middle sixties, however, violence had also flared on the college campuses. At some universities there were mass violations of law reaching riot proportions. 4 On many more campuses, there was vio- lence by smaller groups of students ranging from taking over or blow- ing up buildings, to arson, kidnapping, destruction of personal prop- erty, assaults, and other unlawful conduct which required response by local law enforcement agencies, and on several occasions resulted in the use of state police and the National Guard. 1- During the month of May, 1970, alone (the period of the Cambodian invasion), National Guardsmen were activated on twenty-four separate occasions at twen- ty-one universities in sixteen states."6 These incidents were generally more localized and less destructive to persons outside the university community than the earlier disturbances. The causes or asserted rea- other municipal officials [and] . .. property damage totaling at least $158 million." 1967 HEAINGS, pt. 15, at 2950 (1969). The riot which took place in Washington, D.C., is examined in W. DOBROVIR, JUSTICE IN TIME OF CRISIS (1969). See also B. Gn- BERT, TEN BLOCKS FROM THE WIrTE HousE (1968). 12. Riots took place, for example, during 1974 in Boston after a federal district judge ordered busing as a means of desegregating the schools, N.Y. Times, Oct.