Civil Disturbance, Justifiable Homicide, and Military Law

• Author: By Major Charies R. Murray
• Pages: 03

Recent civil disorders have illvstrated the grim dangers

of the use of federal tioops to restrain their fellow ezti-zem. In addition to his more obviozla di,@eulties, the soldier on riot duty is faced with a variety of ill-defined legel rules to gosern hzs w e of nodethal end lethal force.The author ezaminrs the state of the law in this highly sensitive area with an eye taurd defining the defenses a soldier may offer at a court-martial. Particular em-phasis is given to the defemes of obedience to orders, mistake oi iact and mistake oi law

1. INTRODUCTION

   The modern involvement of the United States Army in curbing domestic disorders began with the dispatch of federal troops to Detroit in 1967. The foilawing year saw thousands af US. soldiers deployed to the riot-torn streets of Chicago, Baltimore, and Washington, D.C. As recently as Map 1971 federal troops were on duty in Washington, D.C., in connneetion with anti-war demonstrations.l During the same years the deaths of students at Kent State from Ohio rational Guard gunfire? and the unfolding of the My Lai "incident" hare separately focused public concern an domestic disturbance and the responsibility of the soldier for the use of iethai force

   Having flonn into Andrew Air Force Base during the April 1968 disturbances in the Satian's Capital as the judge advocate of a provisional brigade of federal troops, the importance of the

   ~

   Thie article was updated from a thesis presented to The Judge Advocate General's School. U.S. Army. Charlotrerrdle, V~rgmla. whlle the author was a member of the Seventeenth Adraneed Course. The opiniana and e ~ n e l u ~ l ~ n ~ presented herein are those of rhe author and do not necessarily iepmsent the views of The Judge Advocate General's Sehml OT m y other governmental agency

   * * J A W U S Army. Office of the Judge Advocate, Umted Stares Army,

   Europe and Sevenih .Army, Germany, B.A., 1958. miversiiy of Florida: I.L.B.. 1961, Duke Dnneriity, member of the bar of the United States Su.preme Court, U.S. Covit of hlllilary Appealb, and the Supreme Court of F 1 o T I d a

   I TLME. 7 \lay 1971, at 13-15.

   This article will not examine the Ilablities of 6afmnal Guardsmen acting I" "on-federal rdea Howeier. many of che conclviionn drawn may have reiwanee to Stsfe Guardsmen.

   Army's role in ciwl dmurbance matters has been of more than theoretical interest. Fortunately, no serious criminal action has yet been bioueht against an active duty Army person for acts arising during aril disturbances., The times, however, do not yet indicate a return to domestx tranquility and contingency planning on the part of the military continues: At some future date a Staff judge advocate ma) be confronted with B situation in-mlving the killing of civil,ans by members of his organization an civil drstuibance dutyome of the consequences arising from to lethal force in a civil disturbance. Although piimanly limiter' to the homicide offenses, the legal principles involved should he equally applicable to lesser assault offenses. Purther, while I t ,i recognized that prosecution in nonmilitary foia 1s possible poblems will be evaluated primarily in terms of court-martial proceedings under the Uniform Code of Military Justice.' Cinl damage wits and criminal offenses against property nili be left for exaluatian by others

   Per contact by the author twth varmd staff indge adroeares of pre-viously depioyeu he!d commrnda and personnel aithin the Office of The Judge Adiacats General. Department of the Arm).

   a Xofe. for example. the exi;!e-ce of the United Stares A ~ m y Directorate for khlitary Srppart, Ofice of tbe Chief of Staff of the Arm)

   'The soldier *,ha commits a, act of homicide during ciwl dirturbancr duty miehf be prosecuted in the mate courts or federal district eaurtr. Soldiers brought before state ccurts may aeek removal to a federal distrier court baaed on B claim of haiirp m e d under c d m of federal authority %.hehen the alleged crime took place 25 U.SC. 3 144% (1964) applies to both eriminsl and c i j i i retians. Sre Terne~~ee

   1 Darii, 100 U.S. 257 (18801, upholding the eonitifunonaiiry of such a removal statute The Supreme Cavrr in \Viiiingham 7. Ilorgan 395 r.8 102 (18691. has established that the test for re-.mai under th:i statute 18 broader than the teet for official immunity. The aoidier may ais? seek B federal court determination that the atate IS aithaur iuriadiction u, der the theory of executive mmunitp. Thir

   under 28 U.SC. S 114?a (1961) and

   JUSTIFIABLE HOMICIDE

   Throughout the article extensive use will be made of state criminal law precedents. Secessity demands such investigation as many of the areas studied have not been examined by military courts. In resolving such questions of first impression the military courts would undoubtedly drav an the available civilian precedents.

   11. BACKGROUSD A. HISTORICAL CSE OF FEDERAL TROOPS TO SUPPRESS CIVIL DISORDERS

   It is in keeping with this country's tradition of civilian control over the military that the military has generally been restricted from exercising authority or responsibility in the realm of civil order and discipline. Yet in spite of this fact there is a long historical precedent for the use of the military to restore intetnai order. The use of federai troops in suppressing civil disorder and enforcing federal law is nearly a8 aid as the Cnited States itself.

   The earliest instance of employment of federal troops in the domestic sphere was the Khiskey Rebellion of 1794. Large nombers of individuals in western Pennsylvania had refused to pay 8 federai excise tax on whiskey expressing their refusal in forming into mobs, mistreating federal tax officials and damaging govelnment property. President Washingtan responded by dispatching the militia of several states to the troubled areas. The rebellion collapsed before the troops Two more recent occcasians of federal troops being dispatched to enforce federal la%. were Little Rock, Arkansas, in 1957 and the University of Mississippi in 1962:

   The furnishing of federal troops to assist a state in suppressing internal disorder is also not new to this country There have been many requests by various ztates for such assistance and an sixteen

   civil dinturbaneea. ejen thoveh cawed out in B erimmsl manner. wauid be service-connected Certainly, in most ins fa nee^ m accused would argue on the merits that his aefmni were not only legal, but mose out af the prfarm. ance of his official duties. and hence. were m v x e connected. The issue wiii probably m s e only ~n a situation where the accused. thourh perenf for civil disrurbanee duty, was clearly acting in a pTi\ate capacity at the time of the alleged affenae. Whether mere presence st a geographx locatm, due to military duliee. would be suffieien: to show S ~ T Y L C ~

   eannectm is unknown"Sei B. RICH, THE PRESIDEYIS AbD ClrlL DISORDER, 2-20 (1841)[hereinafrer cited as RICH].

   .See Pres Prae lo. 3,204: 22 Fed. Reg. 7628 (1951). Exec. Order No 10. 730: 22 Fed. Reg. 7628 (1917), Pres. Proe. 3,497; 21 Fed. Reg 9681 (1962), Exec. Order No. 11.053: 27 Fed. Reg. 9681 (19621.

   occasions they have been granted.' In 1874 the Governor of Lauisiana requested and received federal trww to restore order in Nev Orleans after mob8 of over 10,000 persons compelled the sur-render of the local police and were joined by the state militia in an orgy of racial violence." Two yeam later the Ku Klux Klan riots occurred in several counties of South Carolina Again, federal troops were dispatched at state request.'( The Railroad Strike Riots of 187i generated various state requests for help. Federal

   Maryland;' and Pennsylvania" n restoring order. Next came the Idaho Mining Riots when, at state request, federal troops sere dispatched on three different occasions: 1892, 1894, and During that same period, federal troops were also used in 1894 at Montana's request to suppress a 600 man portion of Coxey'a Army a-hich had stolen a train to aid them in their march to Washington, D.C Mining riots in Sevada (1901),'- Colorado (1914) .' and !Vest Virginia (1921) Ip also occasioned state re-quests far aid and dispatch of federal troops. In 1943 race riots rocked Detroit and federal troops \

   " Exsmpien of when state reqvesta for federal troops were refused are the Buckshot Var, Pennsylrania, 1838: Dan Rebeillan, Rhade Island, 1842: SsnF~ancimo Vigilance Committee. 1656: Chicago Rsilroad Riots, 1877. See RICH ac 6l-j4. 64-56. 56-71. and 79-80, rerpedlrely. Conversely, federal troops were ured I" Chlcaga ~n 1893 durxnZ the Pullman rtnke mer the objection of the I l h n a ~

   Governor Id. ar 91-104. 'See FEDERAL

   AID IN DOMESTIC DISTIRBAXCEP, 5. Doe. No 19, 67th Cong .

   Zd Sesr. 120-139 (1922) [hereinafter cited 81 FEDERAL

   Am].

   '"Id. 156-57.

   ' RICE at 72-66.

   FEDERAL AID st 164-65

   ' FEDERAL AID at 164-61. F E D m L AID at 16670

   ' FEOERU.

   Am at 190-91, 199-200.210-13

   JUSTIFIABLE HOMICIDE

   2. LEGAL BASIS FOR EMPLOYMENT OF

      FEDERAL TROOPS

      The United States Constitution's preambie sets forth as one of its basic purposes: '' . . insure domestic Tranquility. . . ."

      Article IV of the Constitution provides that "The United States shali guarantee to every State . . . a Republican Form of Government, and shall protect each of them . . , against domestic sidenee." The XIV amendment of the constitution prohibits any state from depriying "any person of life, liberty, or property, without due process of iaw" or denying "any person within its jurisdiction the equal protection of the lams." To implement these guarantees Congress 1s charged nith providing for the gen-eral welfare of the United States and far d i n g the militia to execute the law of the Union and to suppress insurrections.gs The President, in turn, IS responsible for the execution of the law"* and is the Commander-in-Chief of the Army, the Navy, and the Militia when called into federal service.*"

      Within the constitutional framework Congress established the rules under which federal troops might...