Part 3 of 3
Intercity Planning --- Control of a major civil disorder will generally require resources beyond the capabilities of local government. One response to this problem is to seek state aid; the other is to obtain additional manpower, equipment and services from neighboring communities by means of preexisting plans or agreements, often referred to as mutual assistance pacts. We here explore the latter alternative.
A variety of mutual assistance pacts are already in existence. primarily in the fields of fire protection. water supply and sewage disposal. The agreements range from the simple exchange of information to elaborate procedures covering all municipal services.
Mutual assistance agreements for police services in emergency situations are less common, and are generally on an informal basis. A study of 26 major police departments revealed that ten had no written mutual aid agreements for control of civil disorders, 12 had informal agreements, and only four had formal agreements. Some departments also said they had made arrangements to "borrow" various items of equipment from neighboring jurisdictions. If these figures are typical of the entire country, it is plain that many cities are either overlooking or rejecting a potentially useful source of additional manpower and resources for the control of disorders.
Mutual assistance pacts have these advantages over obtaining help from the state: help may arrive much more rapidly; repeated use of state police or National Guard forces may reduce or eliminate their "psychological" value; police officers from nearby communities may be more effective because they are familiar with local geographic and sociological patterns; agreements may lead to increased cooperation and coordination of activities in other fields; and the additional funds, personnel and equipment for riot control can be utilized by local police departments in both emergency and ordinary operations, rather than diverting these resources to state forces established solely or primarily for the control of disorders.
There are also certain disadvantages in mutual assistance agreements: riot control requires unit operations much like those used by the military, not the individual approach characteristic of normal police work; police-community relations may be so bad in an area that only outsiders, not neighbors, can cool the situation; units may have an important psychological effect on rioters and may be more effective because of their training; police departments in adjoining communities may differ widely in quality of personnel, and the lower quality departments tend to dilute the effectiveness of the better ones; in times of emergency, a police department in a neighboring city not experiencing a disorder may be reluctant to release its forces because of the possibility the trouble may spread.
Although the Commission lacks sufficient data to weigh these conflicting factors, we believe, for several reasons, that mutual assistance agreements frequently offer a useful alternative to state aid. First, leading police officials have recommended them, particularly for supplying "stop-gap" aid until needed state forces can be mobilized. Second, there is evidence that these agreements work. Even in the aftermath of a major disorder in a nearby city, a community with a police department of 65 was able, through a mutual assistance agreement, to augment its own department and produce a total force of some 300 men drawn from the county and from 31 neighboring communities. Third, we believe basically that a community which demonstrates that it can maintain public order by means of its own resources, plus resources from neighboring communities, can in the long run more effectively earn the necessary respect from all elements of the community.
Although local considerations are paramount in formulating mutual aid agreements, certain basic factors must be taken into account:
Proper planning -- Any effective response to a disorder demands full coordination and planning of all agencies that may be involved in control activities. In the preceding section of this report we outlined the necessary intrajurisdictional planning and coordination to deal with civil disorders; the same factors must be considered in drafting intercity agreements. Without proper planning and objective evaluation of the community resources available, mutual agreements are largely worthless.
Legal problems -- Although we believe there are no insurmountable legal problems for putting into effect mutual aid agreements (with the possible exception of "home rule" cities), state legislation may present unnecessary obstacles, for example, by restricting such agreements in adjoining communities.
The Commission recommends that each state not only undertake a review of existing legislation regarding mutual aid agreements for emergency services but also provide any necessary legislation to permit these agreements to be fully implemented. Such legislation should assure that police officers serving in other jurisdictions have adequate authority to do their jobs and that police, firemen, and other government personnel are given protection against damage suits, loss of personal pension rights, and loss of disability benefits. In accord with the Supreme Court case of Virginia v. Tennessee, 148 U.S. 503 (1893), intercity mutual aid agreements across state lines require only statutory authorization of both states; they do not require congressional approval.
Financial arrangements -- Since the control of civil disorders may be extremely expensive, mutual assistance agreements must provide for payment of costs in a manner that will encourage rather than inhibit prompt and immediate response in time of emergency. Various methods of allocating costs include: apportionment of the cost of control activities among participating jurisdictions by a formula based upon either the location of the disorder or the relative size of the contracting cities; each jurisdiction bearing its own cost, with the mutual advantages of the agreement considered adequate compensation; or one jurisdiction offering its services to another jurisdiction on a free basis.
Basic operating procedures -- Any workable agreement must specifically delineate operational procedures, including: methods by which the agreement can be invoked or activated; command arrangements for integrating the services of the calling and responding forces; the conditions under which a jurisdiction may decline to respond to a request for assistance (e.g., if it has a major fire or disorder within its own borders); a method for terminating the agreement; supporting steps to be taken by participating jurisdictions as, e.g., imposition of curfews and ordinances in neighboring cities; a basis for allocating liability for compensation of injured personnel; arrangements for cooperative training in riot control techniques; and training in joint operations pursuant to the agreement.
Although responsibility for implementating intercity mutual aid pacts rests primarily with the cities involved, state government has a corresponding duty to aid the cities in formulating these agreements, and, furthermore, to integrate the agreements into state plans for controlling disorders. California., for example, has a master law enforcement mutual aid plan providing for extensive interjurisdictional support during a natural disaster or riot. A community's request for help in controlling a disorder is first referred to the county. If the county is unable to supply the necessary resources, application is then made to a regional coordinator who draws manpower from local governments within a particular geographical area under his control. If this aid is still inadequate, a request is made to the director of the state disaster office who can then transfer to the riot area resources from any jurisdiction in the state.
Other ways in which a state may promote intercity mutual aid agreements include: legislative reforms to remove legal impediments to mutual agreements; counseling local jurisdictions concerning such agreements; determining the appropriate role of state police or National Guard when mutual aid agreements are in force; and providing specialized resources and equipment to participating jurisdictions.
Whether or not adjoining jurisdictions implement formal mutual assistance agreements, they should, at the very minimum, coordinate operations in areas where there is adjoining or concurrent law enforcement jurisdiction. Failure to do so may have tragic consequences as, for example, when the county police broke up a meeting for lack of a park permit -- after a city police department had authorized a grievance meeting with rioters in a public park.
Interstate Mutual Assistance Agreements -- A major disturbance within a single city, or a series of disturbances in a number of cities, may require control resources beyond city and state capabilities. For example, the Watts riot in August 1965 required a commitment of over 13,400 National Guard troops, 62 percent of total strength; Newark needed over 4,000 National Guard troops, over 30 percent of total strength; in Detroit, 8,262 National Guardsmen, 85 percent of total strength, plus 2,137 Air National Guard troops, together with more than 4,500 federal troops were deployed or in reserve nearby. If simultaneous major disturbances had broken out elsewhere in these states, resources far beyond state capabilities would have been necessary.
There are two major sources for additional aid:
1. Federal forces, as in Detroit in July 1967, or
2. State forces from adjoining or nearby states pursuant to interstate mutual assistance agreements.
Interstate agreements for the commitment of National Guard forces of more than one state, besides requiring congressional approval, present delicate and complex problems of federal-state relations. Furthermore, utilization of federally financed and trained National Guard troops pursuant to such agreements also raises problems relating to the primary purpose and mission of the Guard.
Policy arguments against the use of such agreements focus on the established principle that military forces should not be used against civilian population except in circumstances of extreme necessity, and then only in the degree and for such duration as may be necessary to restore order. The use of federal forces to assist a state in controlling a civil disorder is restricted by a system of checks and balances that divides both power and responsibility between an individual state and the federal government. This carefully balanced allocation of functions provides protection against premature or excessive use of military force to control civil disorder.
Under interstate agreements, a governor would be able to call upon one or more other states for military assistance, and would thus be able to concentrate military power without the restraints imposed by the federal-state relationship. Such power could potentially lead to excessive or ind1scr1mlnate use of military force against the civilian population.
On more practical grounds, we have already noted that the dual federal-state function and mission of the National Guard create difficulties in the use of the Guard for riot control purposes even within a single state. We also noted the difficulties and burdens imposed upon individual Guardsmen when one Guard unit is pressed into duty two or more times within a limited period of time. These difficulties would be greatly enlarged if Guard units were subjected to call-up in more than one state pursuant to interstate agreements.
Furthermore, because special Army units are immediately available for riot control duty, and because the Army and Air Force can rapidly transport large number of troops, federal troops could be dispatched to the scene of disorder in considerably less time than would be required for mobilizing and deploying Guard forces from adjoining or nearby states pursuant to interstate agreements.
Finally, the discipline, military experience, and intensive training received by active federal troops make them generally more effective than National Guard units in putting down violence with minimum force under the adverse conditions of working in a strange city and state.
Interstate mutual assistance agreements for nonmilitary aid -- firemen and firefighting equipment, food, emergency equipment, medical supplies and services -- would not be subjected to the difficulties summarized above, and could play a valuable role in augmenting state resources.
Vertical Planning
Coordinated State-Local Planning -- We have previously noted that for most states the National Guard is the primary control force available to supplement police forces in a single city. Coordinated planning for state assistance must, therefore, center about the National Guard. To the extent that state police are available in sufficient numbers and with adequate training for control operations, planning should also encompass their use.
Most of the police departments surveyed have some plan or arrangements for obtaining state help. The Department of the Army has also established liaison with the Adjutants General of all state National Guards in order to review or prepare riot control plans for major cities within each state, and to coordinate federal, state and local plans. The Commission commends these actions. It strongly recommends that the appropriate state civil officials, heads of the state police departments, and top local civil and police officials of these cities, be involved in the planning process. state officials must also assume the responsibility for establishing liaison with local officials in any city within the state that may experience a disorder, in order to review or prepare riot control plans.
The Commission cannot deal with all aspects of state-local planning, but if all participating agencies are involved in the planning process, and if plans are tested in training exercises, most problem areas will be identified and suitable solutions found. However, evidence available to the Commission has demonstrated that three major problems must be resolved in order to formulate an effective state-local plan. These problems, and some suggested guidelines for solution, are as follows:
(1) Authority to Request and Order Call-up of State Forces
In the early stages of one of last summer's major disorders, the initial call for state police assistance came from an inspector of the local police department and was directed to the head of the state police. However, under state law only the mayor could ask for and only the governor could provide this assistance. Time was lost because of the failure to use proper channels.
Since most states have special laws setting out who can call the National Guard or the state police, any plan must necessarily take into account the statutory procedures. Many states do not have laws specifying who has the authority to request state assistance, and some laws do not specify the conditions under which state assistance will be authorized, whether or not requested. These points should be covered in an effective plan, which should also provide for a proper delegation of authority if the primary official is unavailable.
As with all aspects of planning, it is imperative that the provisions for requesting and ordering state assistance be made known to all officials, including operating levels.
(2) Command and Communication Between State and Local Forces
Although most police departments surveyed understood how to request National Guard help, the question of command, if the Guard or state police was called in, was largely unanswered. In some states, command responsibilities are spelled out in the state statutes; in others, it is left to agreements, formal or otherwise, or to executive directives. An effective state-local plan must specifically resolve this question.
The Commission heard conflicting testimony from National Guard officers and police officials on which agency should be in command. It is unnecessary for the Commission to make recommendations on this point since a specific answer is less important than making certain that the question is resolved, that it is resolved in advance of the emergency, and that to the fullest extent possible it is resolved in favor of a single commander. Adequate planning for coordinated acts, as well as physical proximity of command posts, should eliminate most command problems, regardless of who is in overall command. Such planning should also eliminate possibilities of different degrees of force by different law enforcement groups as, for example, when one group increases aggressive action while another is unloading weapons and attempting to reduce tensions.
Commitment of National Guard troops as individuals or in pairs destroys the basic value of the Guard as a disciplined force to be deployed as units and in strength appropriate to the emergency. Merely adding Guardsmen to police patrols, as was done in some cities that experienced disorders, is not effective, for the unit commander loses control and cannot readily assemble his unit to respond in force. Except for the desirability of having some police officers with a National Guard unit to serve in a liaison role or to make any necessary arrests and write charges, military and police units should not be deployed together. Thus, regardless of overall command, any plan must ensure that Guard units are utilized as such, and under control of a Guard officer.
Adequate command procedures require that the state and local forces be able to communicate with each other. Officials from two major cities pointed out the extreme difficulties encountered in communication between local police and National Guard. In one case, there was no direct communication between the National Guard troops on the street and the local police unless police officers were riding with the National Guard troops or utilizing the police walkie-talkie system. In the other instance, the state police radios were on a frequency different from that of the local police department and, according to one state official, the local police "did many things" that the state did not know about until much later.
Effective state-local planning must also take into account that state police and National Guard forces may be working with local agencies other than the police, particularly fire departments. Adequate command provisions, including communications, must take these additional agencies into account. Moreover, state-local planning should not neglect other state resources, such as state community relations departments.
(3) Training
Planning is not enough; there must be some provision for testing any plan to discover weaknesses before a disorder, preferably by a command post exercise.
Many police chiefs have also suggested that in order for state and local forces to coordinate their activities correctly, each must have full awareness of the organization, function, and capabilities of the other organizations. Both National Guard and police officials emphasize the desirability of joint training between National Guard troops and state and local law enforcement officers. The Commission recommends that each state thoroughly explore the possibility of undertaking such training, especially at the command level. These exercises not only enhance the capabilities of both the National Guard and the local police, but also provide the necessary testing of state, local, and state-local planning.
Federal-State Coordination -- Article IV, Section 4 of the Constitution provides that the federal government shall protect each of the states against invasion, "and on the application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence." To carry out this provision, as well as its authority with respect to the militia, the Congress in 1792 enacted the statutory provisions that now appear (with minor amendments) as Section 331 and 334 of Title 10 of the United States Code. These sections authorize the President, after a request of a state and after issuing an appropriate proclamation, to use such of the federal armed forces as he considers necessary to suppress insurrection or domestic violence in that state. [6]
However, in accordance with both Constitutional policy and the legislative history of these statutes, no President since these provisions were first invoked in 1838 has ordered federal troops into action until: (1) the actual request for federal troops had been received from the state, and (2) it had become clear that the disorder was beyond the control capacities of state and local authorities. As a result, since 1932, federal troops have been dispatched at state request to quell domestic violence only in 1943 and 1967, both times in Detroit. The most recent experience in Detroit demonstrated the kinds of problems which can develop in the use of federal troops to control civil disorders.
We firmly believe that primary responsibility for the control of civil disorders rests with the cities and that the states should provide the necessary reserve manpower and resources. We recognize, however, that in some instances no state will have adequate manpower or resources to deal with a major disorder, or to deal with disorders in a number of cities. Because of the problems that would be created by use of interstate agreements, the federal government will be the only source of the necessary additional assistance.
The adequacy of the existing statutory authority and administrative mechanism for call-up of federal troops has been questioned as a result of the Detroit experience. Of particular concern are the implications of the use of the word "insurrection" in Section 331, and the requirement that federal troops can be dispatched only if the violence cannot be brought under control by state and local resources.
The word "insurrection" creates fears because of the possibility of nullifying insurance policies which generally do not protect against damages caused by insurrection. However, the Constitution speaks only of "domestic violence" not "insurrection" and federal troops have been dispatched at state request in various situations other than political uprisings. As a result, existing instructions to states for obtaining federal troops require only a request based upon the existence of "serious domestic violence."
The second point -- requiring exhaustion of state resources -- presents a more serious question since it limits use of federal troops to the most extreme situations. Here the requirement is based not upon specific Constitutional or statutory language, but instead upon Constitutional policy. legislative history, and precedent established by a number of Presidents. Some claim this requirement should and could be eased by amendment of Section 331. Others point to the wisdom of severe restrictions on use of federal military forces against civilians, a concept that is inherent in the Constitutional separation of power and responsibility between the states and the federal government.
Although we express no opinion on the Constitutional aspects of the latter argument, we are in accord that it represents sound policy, and believe that the existing conditions for obtaining such help should be retained. We suggest, however, that in determining whether to commit federal forces, the state of preparedness, training and availability of the state's National Guard troops be taken into consideration.
Although we agree with the policy underlying the use of troops pursuant to Section 331, we suggest that the Section be amended to update it and ensure that the language reflects existing Presidential precedents. [7] The amendments should:
(a) Change the word "insurrection" to "domestic violence" to eliminate any possible difficulties.
(b) Make clear that the President will honor a request from a governor, not only when the State Legislature cannot be convened, but also when the Legislature cannot act in time to meet an emergency situation.
(c) Make clear that the President will honor a request from a governor only when the state is unable to control the violence with its own resources, including its own National Guard.
(d) Correct the apparently unintended restriction that only the National Guard of "other States," not the state requesting help, can be called into federal service.
(e) Generally modernize the language -- e.g., change "militia" to "National Guard."
Certain difficulties in obtaining federal troops can be ameliorated if state and local officials are fully aware of the means by which federal assistance may be granted, and the conditions that must be met. To this end, Attorney General Ramsey Clark wrote the governor of each state, in August 1967,and outlined the legal requirements for using federal troops to quell domestic violence, and the means by which federal assistance can be obtained. (Copy annexed as Exhibit A to this Supplement). To avoid any possible misunderstanding on the use of federal troops, the Commission recommends that each state take the appropriate steps to have the information in this letter disseminated to all state and local officials, to the Adjutant General for dissemination to the National Guard, and to all heads of local law enforcement agencies.
Conclusion
The fully coordinated planning recommended in this portion of the report will require the time, effort, and active support of government officials and community leaders. It would be tragic indeed if this time and e1fort were expended solely in planning for a para-military response to civil disorders.
The Commission, therefore, recommends that the government and community leaders involved in the planning should use the planning process as an opportunity to deal with other vital problems to assure that the resulting plans can serve additional valuable purposes. The same planning and resources needed to control a serious civil disorder are also essentially applicable to any major local disaster or emergency which requires a total community effort as well as outside help. Such emergencies and disasters include, for example, floods, hurricanes, explosions and major fires. Even for individual agencies, portions of the civil disorder control plans can often prove useful in dealing with a variety of common and recurring problems. For example, local police departments, plus state police, are often required to work together and coordinate operations in order to control and regulate large groups of people who assemble for parades. visiting dignitaries, and sporting events. If these other purposes and uses are considered and acted upon during the planning process, the resulting plans will have utility far beyond riot control.
More important, the efforts spent in planning for control of disorders provide government and community leaders an important starting point for efforts toward the only ultimate and responsible solution to the problem of civil disorder: a fully coordinated government and private attack on the conditions that give rise to the disorders.
VI. LEGAL NEEDS FOR RIOT CONTROL [8]
We emphasize that law, no less than the desire for order, must provide the framework for all control efforts.
Applicable laws relating to control efforts of federal, state and local governments fall into two general categories: (1) laws permanently in effect, primarily the penal laws of a state, supplemented or augmented by municipal ordinances; and (2) special emergency laws put into effect only during a disorder as, for example. curfews, special emergency closing ordinances, and martial law. The Commission will also consider certain legal aspects of the use of state forces to aid local police.
Laws Permanently in Effect
Many of the acts committed by rioters are crimes, in violation of long-established penal laws. In the disorders of last summer, arrests were made for crimes ranging from homicide to curfew violations, including, for example, robbery, burglary, assault. theft, arson and disturbing the peace.
A Commission survey of selected police departments revealed no basic lack of legal tools available to control disorders. But the survey and other evidence have indicated five other areas where further legislation may be necessary.
Laws governing the manufacture and possession of incendiary devices -- Watts, Detroit, Newark and other major disorders have shown a disturbing increase in the possession and use by rioters of a variety of incendiary devices. primarily Molotov cocktails. Although the use of such a device is undoubtedly arson or attempted arson, some Jurisdictions have no laws governing manufacture or possession; others seek control through use of inadequate "fireworks" ordinances.
Forceful interference with the work of firemen and emergency workers -- Firemen and emergency workers have been subjected to physical abuse, and harassed and interfered with in performing their duties. Obviously, violence against any of these persons is a crime, but the experience of some riot-affected communities indicates that additional laws prohibiting forceful interference with the work of firemen and emergency workers may be necessary.
Restrictions on the sale of firearms -- The Crime Commission studied the relationship between violent crime and the easy availability of firearms in the United States. In its Report, the Commission pointed out that "During 1965, 5,600 murders, 34,700 aggravated assaults and the vast majority of the 68,400 armed robberies were committed by means of firearms." The Crime Commission further stated that "All but ten of the 278 law enforcement officers murdered during the period 1960-65 were killed with firearms."
The Crime Commission surveyed existing federal, state and local gun control legislation and concluded: "Since laws, as they now stand, do not accomplish the purposes of firearms control, the Commission believes that all States and the Federal Government should act to strengthen them." The Commission recommended specific federal and state legislation reasonably regulating the purchase, transportation, sale and possession of firearms.
The fact that firearms can readily be acquired is an obviously dangerous factor in dealing with civil disorders. It makes it easier for a serious incident to spark a riot and may increase the level of violence during disorders. It increases the dangers faced by police and others seeking to control riots.
We believe that all state and local governments should enact gun control legislation of the type recommended by the Crime Commission.
We also believe that federal legislation is essential in order to make state and local laws fully effective, and to regulate areas beyond the reach of state government. We therefore support the President's call for gun control legislation and urge its prompt enactment.
Restricting possibilities of theft of firearms -- Certain recent disorders were accompanied by a drastic increase in the theft of firearms from stores and manufacturers. The most serious incident reported took place in Plainfield, New Jersey, where, during the disorder, 46 carbines were stolen from a local manufacturer.
The Commission recommends that state and local governments consider enactment of laws or ordinances controlling the storage of firearms and ammunition in order to diminish the possibilities of theft. Such laws could require, for example, that all firearms and ammunition be stored in heavily protected vaults or areas, or that essential parts of the firearms be so stored.
Unlawful assembly, riot, inciting to riot and related legislation; federal anti-riot legislation -- Forty-seven states and the District of Columbia have statutes that either explicitly prohibit participation in or incitement of riots or provide more general control through prohibitions against unlawful assembly. Two other states rely on court decisions based on common law.
The Commission's police survey and other evidence disclosed that many of the statutes need review and revision. Some that deal with incitement to riot are so broad that they may improperly inhibit the constitutional right of free speech. Some that provide no definition of "incitement" or comparable terms are dangerously vague. Those that define a riot in terms of groups containing as few as three persons may be applied in situations where nothing even approaching truly riotous activity is taking place. These statutes should be tightened. In addition, some older statutes require that police officers on the scene literally "read me riot act" before taking action against rioters. Such legislation should be amended to ensure adequate notice without unnecessarily inhibiting police action.
A supplementary question is whether this network of state legislation should be supplemented by federal anti-riot legislation.
We recognize that criminal law enforcement is principally a matter of local responsibility and that crimes committed during disorders can generally be controlled and should be controlled at a local level. Moreover, the investigations of the Commission and the Federal Bureau of Investigation have so far revealed no national planning or conspiracy behind the disorders of 1967 and few instances of interstate travel which would be subject to federal control. There is also a risk that too broad a bill would encroach on the right of free speech and peaceful assembly.
Although no criminal legislation, federal or state, comes to grips with the underlying causes of disorder, the Commission feels that a tightly-drawn federal control statute might play a limited, but important, role in dealing with disorders. Even if there are only a few persons traveling with the intent of precipitating disorders, these few can do enormous harm.
Federal legislation, if enacted, should be precisely drafted, with a clear definition of all operative terms, so as to preserve scrupulously the constitutional rights of all Americans. Such legislation should be combined, as the President recommended, with the Federal Firearms Bill. Both are important means of restricting the interstate movement of forces of destruction.
Whether or not legislation is enacted to deter those who would incite disorders, Congress should affirm now that violence is not to be tolerated in any sphere of our society. The prompt enactment of the civil rights legislation now pending-which would make it a federal criminal offense to use force to prevent the exercise of civil rights -- is important for this purpose. This legislation is also central to the long-range goal of insuring that Americans in ail parts of the country enjoy equal rights and opportunities.
Law, Applicable Only in Emergency Situations
Effective control of a civil disorder may require special laws in addition to the normal complement of penal statutes and ordinances. Such emergency laws range from street closings to restrictions on sales of certain items. Laws of this sort have been used in practically every control operation.
The Commission recognizes the utility and need for such laws, especially those which provide for a specific, limited response to a particular problem, rather than wide-ranging emergency powers. The Commission cannot consider all such laws, nor can it consider the Constitutional restraints that may be involved in the application of particular laws, such as search and seizure in connection with curfew violations. It will instead point to a few instances where the need for special legislation is apparent.
Restricting access to defined geographic areas -- In the early stages of some disorders, failure to seal off some streets had tragic consequences. Unsuspecting motorists drove headlong into barrages of bricks, stones and bottles, cars were set afire, and occupants were beaten.
Restrictions on access may also be necessary to keep vigilante groups outside the riot area.
The Commission recommends legislation or ordinances to permit disorder areas to be sealed off immediately. Since speed may be necessary, the laws should provide that the authority can be delegated to operational levels.
Restriction on sales of particular items -- Of the 26 police departments responding to the portion of the survey concerning effectiveness of specified control techniques, all replied that closing stores selling firearms and ammunition was effective; 25 replied that closing liquor stores and taverns was effective; and 22 favored restrictions on sale of gasoline. The Commission recommends that laws be enacted to permit closing of potentially dangerous businesses during riot situations. The authority to impose such restrictions would primarily rest with the mayor or city manager. Provisions should be made to ensure that, if necessary, similar restrictions can be imposed in adjoining jurisdictions. An ordinance restricting sale of ammunition in one city would have a little effect if the stores in an adjoining city, a block away, remain open. As with the imposition of other emergency measures, notice of these restrictions is of paramount importance, and notification procedures must be integrated into any control plan.
Curfews -- The Commission police survey shows that 23 responding departments favored imposing curfews. The Commission recommends that states that have not already done so should provide explicit legislative means to enable mayors and other local officials to impose curfews.
The size of the areas covered by curfew restrictions has varied greatly. Milwaukee imposed a citywide curfew restricting all persons to their homes, closing all streets to vehicular and pedestrian traffic, and permitting no one in or out of the city. Other curfew areas have been less restrictive in time and area. Unless care is used, the curfew itself may enable crim1nal elements to "close down a town" with minimum effort.
In drafting curfew legislation there are at least two potential problems: (a) the need for provisions which enable curfews to be imposed in adjoining cities in order to ensure coverage of the entire disorder area; (b) the need to ensure that notice of the curfew is given to all who may be affected by its terms.
Legal Problems Concerning Use of State Forces
The relationship among the National Guard, state police, and local police in joint activities has been considered in the portions of the Report concerning the National Guard and state-local planning. Although these questions relate primarily to planning, certain legal problems require attention by state and local governments.
Command and call-up procedures for state and National Guard forces -- Most states have laws identifying the state or local officials who have the authority to call-up the National Guard; usually only the governor has this authority, but in some states even a local sheriff may call in the Guard to aid local law enforcement. However, only 20 states have laws specifying the relationship between National Guard forces and the civil police. In other states, the crucial command problem is left to agreements or executive directives.
Although problems of call-up authority and command authority can in part be resolved by proper planning, the Commission recommends that each state review its laws concerning Guard call-up and command, and make any necessary changes to facilitate adequate planning.
Arrest powers of state police and National Guard forces -- In the absence of martial law, only seven states have laws granting National Guard troops the arrest powers of peace officers. This lack of authority is not important if police officers have been designated to accompany Guard troops when arrests are to be made. The problem should be reviewed in the planning process.
Responsibility for payment of the cost of using National Guard forces -- Use of National Guard forces to quell a civil disorder may be costly. Whether the state or the local community must bear these costs is a serious policy question.
On one hand, prevention and control of a civil disorder is part of the local responsibility to ensure civil peace. If the state is to bear the cost of Guard forces, a local community may limit its efforts to prevent disorders (or its efforts to provide adequate control in the early stages) and rely instead on calling the Guard whenever there is danger that an incident may develop into a disorder. This attitude may also contribute to the dangers of overreaction.
If costs of using the National Guard are to be assessed against a local community, the mayor or other local officials may unnecessarily delay calling in the Guard.
The Commission recommends that all states consider this problem in advance and pass necessary legislation providing either for the assessment of costs of National Guard forces, or otherwise ensuring that the problem is resolved by agreement between the states and local communities.
Liability Of Guard officers and men when aiding local law enforcement -- Questions have been raised regarding the legal liability of Guardsmen when assisting local law enforcement officers to control a disorder. The Commission recommends that each state review its laws on this subject, and make any necessary changes to ensure that individual Guardsmen are protected against legal liability when acting pursuant to the valid orders of their superiors.
Compilation and Distribution of Laws Relating to Disorders
The people have a right to know precisely what the law requires of them during a disorder, and an equal right to know the legal limits of control activities by law enforcement officers. Certain cities, counties, and states have already prepared booklets containing this information, have distributed these booklets to all police departments and other law enforcement agencies, and have made the booklets available to the public at large. We recommend adoption of such a policy.
OFFICE OF THE ATTORNEY GENERAL
Washington, D.C. 20530
EXHIBIT A: LETTER FROM THE ATTORNEY GENERAL TO THE GOVERNORS
Dear Governor:
At the President's request. I am writing you regarding the legal requirements for the use of Federal troops in case of severe domestic violence within your state. The requirements are simple. They arise from the Constitution. So the principles will be clearly in mind, I will briefly outline here the basic considerations of Federal law applicable to such a situation.
The underlying constitutional authority is the duty of the United States under Article IV. Sec. 4. to protect each of the states "on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." This pledge is implemented by Chapter 15 of Title 10 U.S.C. and particularly 10 U.S.C. 331. which derives from an act of Congress passed in 1792.The history of the use of Federal forces at the request of governors in varied circumstances of local violence over more than a century is also instructive.
There are three basic prerequisites to the use of Federal troops in a state in the event of domestic violence:
(1) That a situation of serious "domestic Violence" exists within the state. While this conclusion should be supported with a statement of factual details to the extent feasible under the circumstances, there is no prescribed wording.
(2) That such violence cannot be brought under control by the law enforcement resources available to the governor, including local and State police forces and the National Guard. The judgment required here is that there is a definite need for the assistance of Federal troops. taking into account the remaining time needed to move them into action at the scene of violence.
(3) That the legislature or the governor requests the President to employ the armed forces to bring the violence under control. The element of request by the governor of a State is essential if the legislature cannot be convened. It may be difficult in the context of urban rioting, such as we have seen this summer. to convene the legislature.
These three elements should be expressed in a written communication to the President, which of course may be a telegram. to support his issuance of a proclamation under 10 U. S. C. 334 and commitment of troops to action. In case of extreme emergency, receipt of a written request will not be a prerequisite to Presidential action. However, since it takes several hours to alert and move Federal troops, the few minutes needed to write and dispatch a telegram are not likely to cause any delay.
Upon receiving the request from a governor, the President, under the terms of the statute and the historic practice, must exercise his own judgment as to whether Federal troops will be sent, and as to such questions as timing, size of the force, and federalization of the National Guard.
Preliminary steps, such as alerting the troops, can be taken by the Federal government upon oral communications and prior to the governor's determination that the violence cannot be brought under control without the aid of Federal forces. Even such preliminary steps, however, represent a most serious departure from our traditions of local responsibility for law enforcement. They should not be requested until there is a substantial likelihood that the Federal forces will be needed.
While the formal request must be addressed to the President, all preliminary communications should be with me. When advised by you that serious domestic violence is occurring, I will inform the President and alert the proper military authorities. You can reach me at my office, my home, or through the White House switchboard at any hour.
Enclosed are copies of the relevant constitutional and statutory provisions and a brief summary of past occasions on which a governor has requested Federal military assistance. Your legal counsel, I am sure, keeps you fully advised of requirements of state law as well.
If you have any questions or comments, please let me know.
Sincerely,
Attorney General
Enclosures
THE CONSTITUTION
Article IV, Section 4
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
TITLE 10, UNITED STATES CODE
Chapter 15
§ 331. Federal aid for state governments.
Whenever there is an insurrection in any State against its government, the President may. upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that state, and use such of the armed forces as he considers necessary to suppress the insurrection.
§ 334. Proclamation to disperse.
Whenever the President considers it necessary to use the militia or the armed forces under this chapter. he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.
STATE REQUESTS FOR FEDERAL ASSISTANCE IN SUPPRESSING DOMESTIC VIOLENCE
A Chronological List
1838 -- Buckshot War. The Pennsylvania Governor asked for Federal assistance (based on Const. Art. IV, sec. 4) in restoring order when violence resulted from a bitter political contest. President Van Buren refused on the ground that Federal interference is justified only where domestic violence is such that State authorities have proved inadequate.
1842 -- Dorr Rebellion. Rhode Island Governor King asked for assistance to stop the attempt of Dorr to claim the Governorship. President Tyler replied that the time for Federal interference had not arrived since there was no actual insurrection. Further requests were denied on the ground that the legislature was in session and the Governor therefore was not authorized to apply for aid. The President said he would issue a proclamation if a lawful request was made, but Dorr disbursed his troops and this was not done.
1856 -- San Francisco Vigilance Committee. California Governor requested Federal aid in stopping the Committee from usurping the authority of the State. The Attorney General advised President Pierce that the circumstances did not afford sufficient legal justification for Federal assistance since there was no "actual shock of arms" between insurgents and the State, and the State had not exhausted its powers to deal with the situation. (8 Op. A. G. 8). The President took no action.
1873 -- New Orleans unrest -- Lawlessness due to racial problems and also political uncertainty as to proper occupants of political office resulted in violence. Louisiana Governor asked for Federal help. President Grant issued a proclamation ordering the insurgents to disperse. Failure to heed the proclamation and increased disturbance resulted in a further proclamation and dispatch of two regiments.
1876 -- South Carolina riots. Riots resulted from an altercation between the XU Klux Klan and Negro state militia. The President Issued a proclamation in response to a call for Federal intervention and troops were stationed at 70 places in the state to secure the peace during the election. (This action culminated in enactment of Posse Comitatus Act of 1878.)
1877 -- Railroad Strike riots. Upon request for Federal intervention, President Hayes issued proclamations with respect to West Virginia, Maryland, Pennsylvania and Illinois to restore order. The Ohio Governor asked for and received Federal arms but did not request troops. Indiana asked the President to authorize the commandant at the U.S. arsenal to aid the state. On the ground that the request was incorrectly made, the Governor was informed that Federal troops would be used only to protect U.S. property. Michigan, Wisconsin and California also made requests for help but the situation in those states did not become critical.
1892 -- Idaho's Coeur D'Alene mining disturbances. During a seven year period, Presidents Harrison, Cleveland and McKinley furnished Federal assistance which was requested by Idaho Governors.
1894 -- Coxey's Army of unemployed. President Cleveland instructed the army to assist Montana in handling violence of a Coxeyite contingent in Montana, at the Governor's request. However, the President did not issue a formal proclamation.
1903 -- Colorado mining strike disturbance. President Theodore Roosevelt denied assistance to the Colorado Governor who made two requests for "such aid as I may call for," but promised that the Federal Government would act when a request was made in a manner "contemplated by law," explaining that under HR. 5297 there must be shown an insurrection against the State and inability of the State to control it.
1907 -- Nevada mining disturbance. In response to an urgent request from the Governor, President Roosevelt ordered troops to assist. Later, a President's investigating committee found there was no warrant for the assertion that the civil authority of the state had collapsed. After the President threatened withdrawal of the troops, the Governor convened the legislature, which asked that Federal troops remain for a short period until the state Police could be organized and equipped to handle the situation.
1914 -- Colorado coal strike. At the request of the Governor, President Wilson sent troops to stop rioting, but only after considerable negotiation and exploring of avenues of peaceful resolution by Government representatives failed.
1919 -- Race riots in Washington, D.C. and Omaha; Gary steel strike. On the theory that the service by the National Guard in the war left the States without adequate protection against internal disorders, the Secretary of War instructed commanders of the departments to respond to state requests for assistance. The use of Federal troops in 1919was without a proclamation or other formalities.
1921 -- West Virginia coal mine warfare. President Harding was requested by the Governor to intervene. The President stated that he was not justified in using Federal military forces until he was assured the State had exhausted all its resources. A subsequent outburst of violence resulted in a Proclamation and order to dispatch Federal troops. The troops met no resistance and disarmed the miners.
1932 -- The Bonus Army. Needy veterans who came to Washington to seek veterans' bonus legislation were housed in tents, shacks, and government buildings which were being demolished. The Treasury Department attempted to repossess a government building in order to continue demolition, resulting in a clash between the veterans and police. The District Commissioners asked the President for assistance and the army moved in, cleared the buildings and destroyed the shacks. No proclamation was issued.
1943 -- Detroit race riots. The Governor advised that the State was unable to suppress domestic violence, the President issued a proclamation and Federal troops were dispatched.
1967 -- Detroit riots. The most recent incident, of course, was the dispatch of Federal troops to Detroit on July 24, 1967 at the request of the Governor. President Johnson issued a proclamation and Executive order pursuant to Chapter 15 of Title 10, U.S. Code.
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Notes:
1. This recommendation was previously made to the FCC In a letter from the Commission, a copy of which is Included In the Appendix. The FCC has taken steps to make additional frequencies available.
2. This recommendation was previously made in a letter to the Department of Justice, a copy of which is included In the Appendix.
3. "Social Control of Escalated Riots," by Morris Janowitz, Professor and Chairman of the Department of Sociology at the University of Chicago. (Paper prepared for the University of Chicago Center for Policy Studies' Conference on Short-Term and Emergency Measures to Avoid Urban Violence.)
4. For this portion of the report the Commission has relied heavily on a study prepared for the Commission by the Public Administration Service of Chicago, Illinois, and on data provided by a survey of police departments done for the Commission by the International Association of Chiefs of Police.
5. In preparing this section, the Commission has relied upon a study of youth groups prepared for the Commission by the Administration of Justice Unit of the University Research Corporation.
6. Sections 332 and 333 of Title 10, U.S. Code, provide for use of federal troops to deal with violence, or the threat of violence, which primarily obstructs enforcement of federal laws, or infringes on rights secured by the Constitution. Examples of such use include the Whiskey Rebellion in Washington's time, nullification and secession before the Civil War, opposition to Reconstruction acts after the Civil War and, in the past decade, defiance of federal court orders in civil rights matters. In instances of this sort, initiative for use of federal troops rests with the President rather than with a state governor.
7. The present text of Section 331 is set forth in Exhibit A.
8. In preparing this section we have relied upon a study prepared for the Commission by the National League of Cities.