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that further proceedings would amount to a denial of constitutional rights, the State court action must be discontinued.

Finally, the ancient writ of habeas corpus is available to a person illegally held in State custody. This remedy permits a Federal court to review the facts of a case and determine whether a denial of constitutional rights exists requiring the person held in State custody to be released.

Various legal doctrines have developed which place limitations on the use of each of the Federal civil remedies discussed in this chapter. These doctrines are designed to minimize Federal interference with State court proceedings. In recent years, however, the restraints on Federal civil remedies have been relaxed in order to meet the challenge posed by the widespread use of State court proceedings to interfere with Federal rights. Some further modification of the limiting doctrines may be necessary to protect fully Federal rights.

CHAPTER 8.

EXECUTIVE ACTION TO PROTECT THE

EXERCISE OF FEDERAL RIGHTS

INTRODUCTION

The incidents of racial violence described in this report fall largely into two categories. First, there have been situations, such as in Greenwood, Mississippi, and in St. Augustine, Florida, where private violence was directed against individuals as they attempted to exercise specific Federal rights and where law enforcement officers were unwilling or unable to furnish protection. Thus, persons seeking to exercise the right to vote, the right to utilize public accommodations and facilities covered by the Civil Rights Act of 1964, the right to picket peacefully, and the right to travel in interstate commerce have been attacked, sometimes in the presence of law enforcement officers."

The second category is exemplified by the situations in Natchez and McComb, Mississippi. In these communities there have been repeated incidents of violence directed against individuals, not to prevent them from exercising specific Federal rights, but apparently to create a climate of fear and intimidation which would deter Negroes generally from exercising their rights. In these situations as well, law enforcement officers demonstrated unwillingness or inability to prevent or punish violence.

*Other examples of this kind were the Freedom Riders in Montgomery, Alabama, in 1961, 1961 Report of the U.S. Commission on Civil Rights, Justice 29–33 (hereinafter cited as Justice Report]; the attempted voter registration marches in Selma, Alabama, in March 1965, Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965); and the demonstrations, picketing, and attempts to use public accommodations in Bogalusa, Louisiana, in June and July, 1965, Hicks v. Knight, Civil No. 15,727, E.D. La., July 10, 1965.

Demands for Federal Action

The failure of local law enforcement officials to curb racial vio lence has resulted in demands for direct Federal action. The most far-reaching demand has been that the National Government utilize the Armed Forces or United States marshals to supplant local authority. It has also been proposed that the Federal Government intervene in a more limited way by stationing Federal agents in communities to protect persons in the exercise of Federal rights. Protection would be provided by the presence

of Federal agents at the scene of probable violence with the authority to prevent violations of law and to make arrests for violations committed in their presence, by furnishing security to persons know to be in jeopardy, and by surveillance of suspected groups

and persons.

The Response of the Federal Government

Federal intervention has been varied but limited. In five notable instances—at Little Rock, Montgomery, Oxford,4 Tuscaloosa, and Selma --Federal force has been used on a significant scale to avert racial violence by preventive police action. In Montgomery, Selma, Greenwood,o and Bogalusa," the Federal Government has brought or intervened in private suits seeking injunctive orders against police or against extremist groups after

* See Brief of United States, pp. 6–8, Jackson v. Kuhn, 254 F. 2d 555 (8th Cir. 1958) (hereinafter cited as Jackson Brief].

3 See Justice Report 29–33; Marshall, Federalism and Civil Rights 64-67 (1964).

* For the history of the admission of James Meredith to the University of Mississippi, see 7 Race Rel. L. Rep. 739–65 (1962) and Barrett, Integration at Ole Miss (1965).

5 For cases and proclamations involved in the admission of Vivian Malone to the University of Alabama, see 8 Race Rel. L. Rep. 448–58 (1963).

* For cases, proclamations, and accounts of other action relating to the Selma-Montgomery march, see 10 Race Rel. L. Rep. 218–34 (1965).

Small numbers of U.S. marshals also have been used on approximately 30 occasions since 1958, primarily in connection with school or university integration. Interview with Chief Marshal James McShane, August 16, 1965 (hereinafter cited as McShane Interview]. 8 United States v. U.S. Klans, 194 F. Supp. 897 (M.D. Ala. 1961). Williams v. Wallace, 240 F. Supp. 100 (N.D. Ala. 1965). United States v. Sampson, Civil No. GC 6449, N.D. Miss., Sept. 2, 1964.

Hicks v. Knight, supra note 1; United States v. Original Knights of the K.K.K., Civil No. 15,793, E.D. La., July 19, 1965.

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violence had occurred and local law enforcement officials failed to prevent or contain it.12 The Federal Government also took direct action in some areas where there was substantial violence, such as Mississippi, Alabama, and Georgia, by increasing the “Federal presence,” usually by dispatching large numbers of FBI agents. 18 But severe self-limitations have been imposed on the scope

of Federal protective action. Except where court orders have been previously obtained, the Department of Justice will not directly protect persons exercising Federal rights." Nor will FBI agents or United States marshals arrest persons for offenses committed in their presence or perform patrolling or other preventive duties in communities where there has been substantial racial violence.15

The reluctance to provide more extensive Federal protection has been justified on a number of grounds. The Department of Justice has claimed that providing a protective Federal force in the absence of a court order would raise the deepest constitutional issues; that the use of such force would represent an unwarranted departure from the principles of Federalism leading to the creation of a national police force operating in situations not limited in time or place; that local authorities would be discouraged from assuming their responsibilities; and that at present there are not enough properly trained personnel (marshals and FBI agents) for such duties.

This chapter will first analyze the legal and historical precedents which define the scope of the President's authority to use Federal

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12 The legal authority that formed the basis of these actions is discussed in Chapter 7, supra.

18 FBI Appropriation 1966, 23 (FBI reprint of testimony of J. Edgar Hoover, Director, Federal Bureau of Investigation, before the House Subcommittee on Appropriations, March

4, 1965). Conferences with Assistant Attorney General John Doar, Department of Justice, Washington, D.C., August 12 and October 5, 1965 (hereinafter cited as Department of Justice Conferences).

Memorandum, “Handling of Civil Rights Investigations by the FBI,” August 18, 1965, and Supplement, October 7, 1965, from the Federal Bureau of Investigation to the U.S. Commission on Civil Rights. (Hereinafter cited as FBI Memo.] For a full discussion of this policy, see pp. 160-62, infra.

Department of Justice Conferences. See generally Marshall, op. cit. supra note 3.

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officers to protect persons exercising constitutional rights in situations where local officials are unwilling or unable to provide pro tection. This analysis will consider the extent to which the limitations on Federal action expressed by the Department of Justice are limitations of policy and not legal power. The chapter will conclude with an analysis of the policy considerations relating to the use of Federal officers in particular situations."?

LEGAL AUTHORITY The Constitution directs the President to “take care that the laws be faithfully executed.” 18 One constituent of this mandate is the power to use force to carry out the laws and to prevent their violation. Presidents have exercised this authority since the first days of our Nation. Although the Supreme Court has held that in certain situations a President has exceeded his authority,to it has never done so with respect to Presidential use of force to execute the laws.20 In the only cases in which that issue has been faced by the Court, it has stated that the only limitation on the President in this area is that he act with "honest devotion to the public interests” 21 and out of a sense of “high responsibility.”

In 1879 it was argued in the Supreme Court of the United States that when Federal marshals sought to enforce Federal election laws, their conduct infringed upon the prerogatives of the States. In rejecting the argument, Justice Bradley, writing for the Court, expressed what has become a definitive statement of Federal authority:

It is argued that the preservation of peace and good order

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The chapter does not consider the use of Federal force to quell domestic disorder pursuant to the request of a State. See U.S. Const. art. iv, § 4, 10 U.S.C. § 331 (1964).

18 U.S. Const. art II, § 2.

19 See Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) and Duncan v. Kahanamaku, 327 U.S. 304 (1946), holding that the Constitution prohibited the suspension of habeas corpus during the Civil War and the Second World War; and Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), holding that the emergency strike procedures of the Taft-Hartley Act barred Presidential seizure of certain steel mills during the Korean War.

20 See Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 500–01 (1857), where the Supreme Court suggested that it was without power to challenge any Presidential action because of the unenforceability of any order it might issue.

Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32 (1827). 22 Luther v. Borden, 48 U.S. (7 How.) 1, 44 (1849).

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