Imágenes de páginas
PDF
EPUB

cause property damage or disorder which would constitute a breach of the peace unless the person requesting such permit posts a bond in an amount determined by such officer or employee as will cover the estimated cost of

(1) damage to property; and

(2) equipment and personnel needed to maintain order, excluding such equipment and personnnel as are needed to route traffic and to protect those

parading. SEC. 2. (a) If the conditions of such permit are violated, the issuing officer or employee shall immediately revoke such permit, and the person to whom such permit was issued shall declare such parade at an end and shall actively cooperate in the dispersement of such parade.

(b) Failure by the person to whom such permit is issued to comply with the requirements of subsection (a) shall result in forfeiture of the total amount of the bond.

SEC. 3. The term “parade" includes march, demonstration, or other assemblage.

GOVERNMENT OF THE DISTRICT OF COLUMBIA,

EXECUTIVE OFFICE,

Washington, Md 10, 1968. The Honorable John L. MCMILLAN, Chairman, Committee on the District of Columbia, United States House of Representatives, Washington, D.C.

DEAR MR. MOMILLAN: The Government of the District of Columbia has for report H.R. 16941, 90th Congress, a bill “To authorize an officer or employee of the government of the District of Columbia to require applicants for permits to parade in the District of Columbia to post a bond to cover certain costs of such parade.”

The bill provides that no officer or employee of the District Government shall issue or sign any permit for a parade (a term defined by section 3 of the bill to include marches, demonstrations, or other assemblages) if he determines that the parade may cause property damage or disorder which would constitute a breach of the peace, unless he first requires the applicant for such parade permit to post a bond in an amount determined by the officer or employee to cover the estimated cost of damage to property, and the estimated cost of equipment and personnel needed to maintain order (but not including the cost of such equipment and personnel as may be needed to route traffic and to protect the persons participating in any such parade). Failure to comply with the conditions of the permit will, under the bill, result in its revocation, and in such case the permittee is required to declare the parade at an end and actively cooperate in its disbursement. The failure of the permittee to comply with the last-mentioned requirements will result in the forfeiture of the total amount of the bond which the permittee has posted.

It is the view of the District of Columbia Government that while the object of the bill is to relieve the District government from bearing property damage and other costs arising out of a parade, march, demonstration, or other assemblage, it raises a constitutional question as to whether the bill infringes on the right of peaceable assembly guaranteed by the First Amendment.

The Metropolitan Police Department, the United States Park Police, the Na. tional Park Service, and the General Services Administration are presently the agencies responsible for the issuance of permits for parades, demonstrations, and the like. While these agencies require the filing of an application in writing, and some consultation as to time, place, date, duration, number of persons involved, equipment and facilities, there are no charges made, and the permit form is considered informational, rather than restrictive.

Under the bill, no criteria are provided to guide the government official or employee as to what constitutes “property damage or disorder". The official or employee is thus faced with formulating his personal view as to whether any disorder will occur and the amount of damage that may accrue. The bill provides for no avenue of appeal from the decision of the official or employee if he decides that a bond is required. Failing to post the required bond demanded would prevent the issuance of any permit. The result of the enactment of the bill could be to establish a government official or employee as the arbiter of who is worthy of parading, marching, or demonstrating, and the amount of bond, if any, that it will cost the permittee to parade, march, or demonstrate.

N

In conclusion, while the District of Columbia Government views with interest and attention all proposals for efficiency and economy, it is our view that the bill raises serious constitutional issues in that it would limit the issuance of a parade, march, or demonstration permit to an individual or group desiring to exercise bis or its rights of peaceable assembly, only to those individuals or groups who could post the required bond prior to the parade, march, or demonstration. The Government of the District of Columbia accordingly recommends against the enactment of the bill.

The Government of the District of Columbia has been advised by the Bureau of the Budget that, from the standpoint of the Administration's program, there is no objection to the submission of this report to the Congress. Sincerely yours,

/s/ Thomas W. Fletcher,

THOMAS W. FLETCHER,

Assistant to the Commissioner. For: WALTER E. WASHINGTON,

Commissioner.

[H.R. 16948, 90th Cong., 2d sess., by Mr. Friedel on May 1, 1968] A BILL To direct the Commissioner of the District of Columbia to remove at the expense

of the District of Columbia buildings destroyed or damaged in riots or other civil disorders Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) in the case of any building in the District of Columbia which the Commissioner of the District of Columbia determines was destroyed or damaged on or after April 4, 1968, as the result of any riot or other civil disorder, the Commissioner of the District of Columbia shall (1) remove any such damaged building (or part thereof) which he determines under the act of March 1, 1899 (D.C. Code, sec. 5–501–5–508), to be unsafe or (2) remove any other building (or part thereof) so damaged if the owner requests to have it removed and (3) remove any materials or other debris from any buildings so destroyed.

(b) The entire cost of any removal of any building (or part thereof) so damaged and debris from any building so destroyed

(1) carried out by the District of Columbia under the Act of March 1,
1899, on or after April 4, 1968,

(2) carried out by the District of Columbia under this Act, or
(3) carried out by the owner on or after April 4, 1968, and before the date

of the enactment of this Act,
shall be borne by the District of Columbia.

[ocr errors]
[ocr errors]

GOVERNMENT OF THE DISTRIOT OF COLUMBIA,

EXECUTIVE OFFICE,

Washington, May 10, 1968.
The Honorable JOHN L. MOMILLAN,
Chairman,
Committee on the District of Columbia,
United States House of Representatives,
Washington, D.O.

DEAR MR. MCMILLAN: The Government of the District of Columbia has for report H.R. 16948, 90th Congress, a bill "To direct the Commissioner of the District of Columbia to remove at the expense of the District of Columbia buildings destroyed or damaged in riots or other civil disorders.”

The bill requires the District, in the case of any building which it determines was destroyed or damaged on or after April 4, 1968, as the result of any riot or other civil disorder, to remove the building or part thereof determined to be unsafe pursuant to the Unsafe Structures Act of March 1, 1899 (D.C. Code, sec. 5_561–5–508). The bill also requires the District to remove any other damaged building or part thereof if the owner asks that it be removed, and, finally, the bill requires the District to reimburse those owners who, at their own expense, removed their damaged buildings in compliance with orders issued by the District pursuant to the Unsafe Structures Act.

The District believes it desirable, for reasons of health and safety of the public, that it be required at its expense to remove damaged buildings or parts of buildings which are unsafe within the meaning of the Unsafe Structures Act, and that the owners of real property damaged in the course of the disorders which began on April 4 should not be required to bear the cost of correcting a condition that was not the result of their own acts of omission or commission. However, with respect to properties which, although damaged, are not unsafe within the meaning of the Unsafe Structures Act, the District is of the view that the owners of any such properties should themselves be required to bear the cost of removing such buildings or parts of buildings if that be the course of action they desire to take.

Accordingly, in the belief that the action which the bill requires be taken by the District will eliminate conditions endangering the health and safety of the public, the District recommends the enactment of H.R. 16948, with the exception of so much thereof as would require the District, at the request of its owner, to tear down and remove a building or part of a building which, while damaged, is not in such condition as to be unsafe. In this connection, the District has reason to believe that a number of buildings which might fall within this category could be restored. The District therefore questions so much of the bill as would require it, upon receiving such a request from a property owner, to tear down and remove a building which could be repaired and restored to productive use.

The District accordingly recommends that the bill be amended by striking clause (2) in both subsection (a) and subsection (b); by striking "any buildings so destroyed” in line 3 on page 2 and inserting in lieu thereof "such unsafe buildings”; and by inserting between lines 12 and 13 on page 2, the following:

“pursuant to a notice received under the Act of March 1, 1899 (D.C. Code,

secs. 5-501 to 5–508),". These amendments would have the effect of eliminating from the bill the mandatory requirement that the District, upon receiving from an owner of damaged property a request that it be torn down, must take such action, and must remove the debris from all razed buildings, regardless of whether they were unsafe.

The District estimates that the cost of demolishing and removing unsafe damaged buildings or parts thereof will be approximately $300,000, of which $100,000 is presently available from funds of the District and the balance of which would be covered by a demolition grant presently being processed through the Department of Housing and Urban Development.

If the bill be amended in the manner suggested in this report, so as to limit its effect to the removal, for reasons of health and safety, of buildings or parts of buildings so damaged as to be unsafe, without at the same time requiring the District also to remove damaged buildings or parts of buildings which are not unsafe, then the District would strongly favor the enactment of the bill.

The Government of the District of Columbia has been advised by the Bureau of the Budget that, from the standpoint of the Administration's program, there is no objection to the submission of this report to the Congress. Sincerely yours,

/s/ Thomas W. Fletcher,

THOMAS W. FLETCHER,

Assistant to the Commissioner

(For Walter E. Washington, Commissioner). Mr. WHITENER. At this time we will ask our distinguished colleague from Maryland, Congressman Samuel N. Friedel, if he would like to come around and give us the benefit of his testimony.

STATEMENT OF HON. SAMUEL N. FRIEDEL, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MARYLAND Mr. FRIEDEL. Chairman Whitener and distinguished members of the subcommittee:

I wish to precede my remarks on the pending bill by thanking the members of this subcommittee and your chairman of the full Committee on the District of Columbia, Mr. McMillan, for the considera

of

tion and prompt response to my request for a hearing on my bill, H.R. 16948.

As all of you know many business establishments here in the District were totally destroyed during the recent riot. A goodly number of the men and women who owned these businesses have lost their sole means of earning a living; some have lost their entire life savings; some have recouped a portion of their loss through insurance; few, if any, have been or will be completely reimbursed for their losses.

To add to this already calamitous situation, it was recently brought to my attention that the District of Columbia law requires that these same unfortunate people remove the rubble and debris left from their burned out and looted businesses at their own expense. To me this was the straw that broke the camel's back.

It seems unreasonable and unfair to add to the already heavy burdens of those businessmen whose businesses have been wiped out and whose property has been totally destroyed by arsonists, the expense of removing the rubble. Surely they cannot be held responsible for the

riots and fires which destroyed their property. But since the District the government is responsible for maintaining law and order and for

preventing and suppressing riots, looting and burning, then it seems only fair and reasonable to me that the District government should bear the cost of removing the resultant debris.

Before introducing H.R. 16948, I spoke with the Corporation Counsel of the District of Columbia, Mr. Charles T. Duncan, and he indicated that he, too, agrees that the businessmen should not be held liable for the removal of the rubble left by the riots; and that, further, he would favor this kind of legislation.

While I am not an attorney, it is my understanding that there is ample legal precedent for such legislation and, in fact, many states now have statutes which impose liability on a municipality for damage or personal injury by riots and mob violence; and, further, that the constitutionality of such statutes has been upheld by the Supreme Court of the United States. In order to assist the committee in its deliberation, I am submitting for the record copies of several Law Review articles dealing with this subject.

In conclusion I wish, once again, to thank the committee for its promptness in scheduling this bill for a hearing and urge that you take fast and favorable action for the relief of both the City of Washington and its unfortunate businessmen who desperately need whatever help we can give them.

[ocr errors]

Thank you.

(The documents referred to follow :)

[blocks in formation]

(By Robert E. Jaffe and Gary W. Dubin) The authors discuss the concept of imposing liability on a municipality for damage and injury caused by riots and mob violence, and conclude that this trend will continue with the enactment of more statutes and the evolvement of more case law creating such liability even in the absence of statutes. Mr. Jaffe is a member of the law firm of Garber, Gutfeld & Jaffe, Cleveland, Ohio. Mr. Dubin is an associate in the same firm. This article originally appeared in the July 1966 Cleveland Bar A88ociation Journal.

Within Recent Times newspaper headlines have carried titles such as "Another Riot Breaks Out In Watts." Underneath the headlines the story begins:

“As usually has been the case in these racial outbursts, Tuesday night's violence was neither organized nor planned."

Smoldering frustration, a rock through a car window, a policeman called to the scene suddenly scuffling, looting and even killings. In many cities of the nation this chain of events has been repeated, spontaneous and deadly, without plan or program.

From Elizabethport, New Jersey, according to The Associated Press, came the story late in August of 1965 that large groups of youths drove through a section of Elizabethport in the early morning, hurling gasoline bombs, stones and bottles. They tossed firebombs through four store windows creating fires which were quickly extinguished. The rioters stoned the firemen when they attempted to save the burning property.

Throughout the incident, people clustered in small groups along the sevenblock strip of the main business district and the city police were hampered in their attempts to disburse these groups because they were outnumbered.

The first Watts riots which took place early in August of 1965 were, according to reports, a series of riots amounting almost to insurrection for a period of virtually six days when a small segment of the population estimated by officials to be not more than 1 per cent of the inhabitants of the city caused 34 deaths and 45 million dollars damage to private property. Eighty-five police officers, a large number of city firemen and 757 civilians were injured. Property stolen by looters exceeded the value of 200 thousand dollars.

In New York City the shooting of a young Negro boy by a police officer triggered off a riot in Harlem.

Nor are these incidents restricted to civil rights episodes. From throughout the United States have come stories of a growing tendency on the part of youths in many areas of the land to gather together in large numbers in small resort communities and villages with insufficient police personnel and equipment to control them. In these instances the youthful mobs may even outnumber the local population. Thrown stones and empty bottles, wielded weapons of all types, have resulted in store windows being smashed, buildings being set on fire, and other extensive damage throughout the affected communities.

Locally, here in Cleveland, Ohio, during the construction of a school in the Lakeview area, extensive rioting and public commotion took place resulting in the death of a minister, the demolishing of many stores, extensive property damage throughout the area, and even complete loss of businesses. These examples illustrate that we are living in a tense, heated, explosive atmosphere especially so in view of the unrest of the Negro in his quest for complete and equal civil rights—the results of which have been extensive property damage, personal injury and loss of life as a direct result of rioting and mob violence and civil disobedience.

This article is addressed to the concept of the liability of a municipality for damage and injury caused by these riots and mob violence, and attempts to point out how the law has evolved and what we can expect in the future.

The protection by a community of life and property within its boundaries has traditionally been considered a governmental function rather than proprietary; therefore the traditional theory of immunity has gone with it. Up to now, all authorities have indicated that there is no common-law right to recovery on the part of the injured, but by statute some states have already ended this immunity on the part of the municipality.

The common-law rule that a municipality is not liable for damages resulting from mob violence or riots is founded on the traditional notions of sovereign immunity which shield the local government from liability for failures which are peculiarly governmental. Therefore, in the absence of a statute abrogating this immunity, an injured citizen had no action against a municipality no matter how derelict it had been in maintaining order. Many states now have statutes which impose liability on a municipality for damage or personal injury by riots and mob violence. The constitutionality of such statutes has been upheld by the

152 A.L.R. 562 (1928) ; 38 Am. Jur., Municipal Corporations Sec. 652 (1961).

Conn. Gen. Stat. Rev. Sec. 7-108 ( 1958); Ill. Ann. Stat. Ch. 24 Sec. 1-4-8 (1965); Kan. Gen. Stat Ann Sec 12-201 (1949): Ky Rev Stat. Ann. Sec. 411–100 (1963); La. Ref. Stat. Sec. 33 : 5065 (1950): Me, Rev. Stat. Ann. Ch. 136, Sec. 8 (1954), Md. Ann. Code Art. 82, Secs. 1-3 (1957): Mass. Ann. Laws Ch. 269, Sec. 8 (1956); Mo. Rev. Stat. Secs. 537.140-160 (1959); Mont. Rev. Codes Ann. Sec. 11-1503 (1947); N.H. Rev. Stat. Ann, Sec. 31 : 53 (1955); N.J. Stat. Ann. Secs. 2A : 48–1 to 48–7 (1952) ; N.Y. Munic. Law Sec.

« AnteriorContinuar »