Journal of Criminal Law and Criminology

Volume 58 | Issue 3 Article 12

1968

Nonviolent Civil Disobedience and PoliceEnforcement PolicyJ. L. LeGrande

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Recommended CitationJ. L. LeGrande, Nonviolent Civil Disobedience and Police Enforcement Policy, 58 J. Crim. L. Criminology & Police Sci. 393 (1967)

THE JOURNAL OF CRIINn'AL LAw, CRIMINOLOGY AND POLICE SCIENCECopyright C 1067 by Northwestern University School of Law

Vol. 58, No. 3Printed in U.S.A.

POLICE SCIENCE

NONVIOLENT CIVIL DISOBEDIENCE AND POLICE ENFORCEMENT POLICY

J. L. LeGRANDE

J. L. LeGrande is Assistant Professor, School of Police Administration and Public Safety, Michi-gan State University, East Lansing, Michigan. Prior to his joining the university faculty in 1963 hehad served as a Research Associate in the Office of Planning and Research of the St. Louis PoliceDepartment. For three years he served in the Oklahoma City Police Department and upon receivinghis law degree from the University of Oklahoma in 1961 served for one year as a County Attorneyin Oklahoma. Professor LeGrande has published several articles in other professional journalsand is a member of the American Bar Association among other professional organizations.-EDIToR.

The concepts of civil disobedience as a re-ligious, political, and philosophical doctrine arevirtually ageless. Authorities have traced themback as far as the sixth century B.C. Elements ofthese concepts are contained in the Christianteachings of our modem churches. In the processof establishing the United States as a new nation,its founders relied, in part, on the basic ideas ofcivil disobedience. Mahatma Gandhi made ex-tensive use of the technique in India in the earlypart of this century. Martin Luther King, Jr.,and others have, in this decade, adapted andperfected civil disobedience to the point of de-veloping a highly effective means of coercivepressure for social change.

When examining "civil disobedience," one mustimmediately recognize that the formulation of asingle all-encompassing definition of the term isextremely difficult, if not impossible. In reviewingthe voluminous literature on the subject, thestudent of civil disobedience rapidly finds himselfsurrounded by a maze of semantical problems andgrammatical niceties. Like Alice in Wonderland,he often finds that specific terminology has nomore (or no less) meaning than the individualorator intends it to have.' To add further to thisgeneral confusion, a number of articles, pur-porting to examine civil disobedience, haverecently been published in popular police journals.These articles have tended to combine all protestmethods into this category, and without any

In an excellent book, MRnEa, NoN-VIOLENCE, ACHRisTIAN L\ERPRETATION (1966), the author devotes127 pages to defining the concept and delineating itsrange of application.

form of distinction or definition, they denouncesuch actions as "disrespect for law and order."Such conclusions, without at least elementaryanalysis of the philosophies involved, tend tocloud and thoroughly distort the true issues.

For the purposes of police policy formulation,civil disobedience can perhaps be best defined as acourse of illegal conduct undertaken by relativelyhomogeneous or like-minded groups for thepurpose of obtaining redress of alleged grievances.It is activity conducted outside the framework ofrules provided by the established governmentalstructure. The illegal activity is conducted pub-licly in the form of a demonstration whose intentis to illicit sympathetic public support. However, itis important that a dear-cut distinction betweencivil disobedience and other forms of demon-strations be recognized.

Public demonstrations can be divided intothree distinct categories. The first category is thelawful protest denwnstration,, wherein the partici-pants have peacefully joined together and arepublicly protesting an alleged injustice by utilizingtheir constitutionally provided rights of speech,assembly, and petition.

The second category of demonstration isnonviolent civil disobedience. The participant inthis form of demonstration may deliberatelyrefuse to comply with laws he or his group considersunjust. He goes beyond his constitutional rightsin dramatizing the injustice, but he does not useany form of physical violence. For the purposesof formulating police policy, noncooperation,nonresistance, nonviolence, passive resistance,

J. L. LeGRANDE

positive action, nonviolent direct action, andsimilar varieties of nonviolent philosophies maybe included in this classification.

The third category is violent civil disobedience,wherein physical force is utilized indiscriminatelyand in violation of law to accomplish the partici-pants' goal. The ultimate form of this categoryis riot. Violent civil disobedience will not beexamined in this paper.

PUBLIC PROTEST: A METHOD OF SOCIAL REFORM

With the full-scale implementation of thecivil rights movement in the 1950's, an old methodof social reform was given new life in the UnitedStates. Since that time this nation has seen massdemonstrations and public protests of a magnitudeheretofore unknown. The freedoms to speak,assemble, and petition have been utilized in anelaborate fashion-probably well beyond theimagination of the framers of the First Amend-ment to the Federal Constitution.

These methods of voicing dissent were utilizedin the 1950's primarily by racial groups to callpublic attention to alleged discriminatory practicesand to demand their correction. As time progressed,the significant political coercive force of thesemeans became recognized by other groups andorganizations with causes. These groups, formalor informal, began adapting the tactics of thecivil rights organizations to meet their individualpurposes and needs. In recent months, in additionto protest against discriminatory racial practices,the public has seen organized mothers groupsdemanding pedestrian lights at school crossingsand marching in "baby buggy brigades" againsthighway commissions; prospective draftees de-nouncing military conscription and United Statesforeign policy and picketing governmental agen-cies; deer hunters challenging the conservationcommissions' directive allowing the killing ofdoe and carrying placards on the state houselawns; students demanding more academicfreedom and less restrictive rules of conductfrom universities; and a host of other diversifiedcampaigns. We can no longer doubt that virtuallyany group of individuals advocating any changecan adapt the technique of mass assembly andexpect some degree of effective publicity andsuccess. Thus, in little more than a decade thepublic protest has become the fashionable effectivetool to which the public responds. Some authoritieshave speculated that these incidents will increase

in number and in the number of participantsinvolved.2 There can be little doubt, on the basis ofexisting trends, that this prophesy will be correct.

THE POLICE DILEMMA

As a result of these activities local policeadministrators have found themselves placed inextremely sensitive positions. They are faced withdecisions that involve the intricate and delicatebalance of public order and safety on one hand andindividual freedoms on the other. Most adminis-trators recognize that absolute freedom will resultin anarchy, but that absolute control will fostertyranny. A new dimension is added to this dilemmaby the practice of civil disobedience-the philos-ophy that "unjust" laws should not be obeyed.Professor Fred Inbau, Northwestern UniversityLaw School, views this problem in even strongerterms:

"With each passing summer it becomes moreand more difficult to distinguish betweenlegitimate social protest and flagrant violationof laws designed to protect persons and property.Puzzling and unpleasant though this choice maybe for us all, for the police, who are professionallyresponsible for the maintenance of law and order,it is a cruel dilemma." 3

The police administrator has very few specificguidelines to utilize in his decision-making process.Very little literature which directly relates to thephilosophy of civil disobedience and the devel-opment of police enforcement policy exists. Con-cerning this dearth of material, George Eastman,a former Director of the National Institute onPolice-Community Relations, commented: "Effec-tive police handling of singular crisis incidentsare numerous but isolated and unrecorded andthere has been little pooling of experiences, goodor bad, which would allow the development ofsound police practices." 4

It is the writer's intent to examine the variousramifications of nonviolent civil disobedience andto develop insights and guidelines for theuse of thepolice administrator faced with such a confron-tation. He does not intend to establish that civildisobedience should be acclaimed or denounced

2 BROwN, THE POLICE AND COMMUNITY CONFLICT 11(New York: National Conference of Christians andJews, n.d.).

3 INBAU, THE THIN BLUE LINE: THE PoUICE/TniEPunLIc 3-4 (Chicago: Kemper Insurance Company,1966).

4 Foreword to CuRY, J. E. AND KING, GLEN D.,RACE TENSION AND THE POLICE (1963).

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POLICE ENFORCEMENT AND NONVIOLENT CIVIL DISOBEDIENCE

as a method of social reform, but only to clarifythe issues involved in an effort to bring about agreater understanding to aid in the formulation ofpolice policy.

TE RIGHT TO DISSENT

As one of its basic precepts, the Americandemocratic system has maintained that if onedoes not agree he may verbalize his disagreementwithout fear of official sanction or vengeance.This right to dissent is legally protected by theBill of Rights and similar state provisions, whichembody prohibitions against interference withfree speech, peaceful assembly, and petition forredress of grievances.

The freedom to speak and to debate all sides ofan issue is a highly cherished and effective weaponof individual liberty. The right to assemble peace-fully with other interested individuals is clearlynecessary to promote a maximum exchange ofideas. The resultant petition for redress is thekey to orderly change within the society. Theexistence and proper utilization of these tools isone of the primary distinctions between a de-mocracy and a totalitarian state. Rather thansuppressing a minority viewpoint, our govern-ment protects and promotes dispute and dissent,regardless of whether the issue is highly contro-versial or unpalatable to the majority. In DeJongev. Oregon, the United States Supreme Court,speaking through Chief Justice Hughes, affirmedthese principles: "It is only through free debateand free exchange of ideas that governmentremains responsive to the will of the people andpeaceful change is effected. The right to speakfreely and promote diversity of ideas and programsis therefore one of the chief distinctions thatsets us apart from totalitarian regimes." 5

However, one does not have carte blancheauthority to utilize these freedoms indiscriminately.One does not have unlimited license to talk.Restrictions have been devised in an effort tobalance the rights of the individual with thecompanion considerations of the public interest.Speech, assembly, and petition, therefore, are sub-ject to regdations. They are rights which must beexercised in such a manner that their use willnot substantially endanger public safety or grosslyinfringe upon the rights of others.

In this context, municipalities and states arepermitted to establish licensing ordinances and

5299 U.S. 353, 365.

statutes, to require parade permits, speech permitsand similar authorizations, so long as the lawcontains clear-cut standards -that eliminate thepersonal discretion of the licensing officer andpreclude discriminatory abuse.6

Regardless of the nature of the topic, a speakermust refrain from certain types of cbnduct. Hecannot attempt to incite the commission of acrime, such as riot, or advocate the violent over-throw of the government. He cannot utilizeclearly obscene language in his presentation. Hecannot employ insults in a way that might person-ally provoke a member of the audience to fight orto commit violence against him. The speakerthus must eliminate any man-to-man insults orcommon fighting words from his presentation

When exercising the freedoms of speech, as-sembly, or petition, the participants cannotcommit a breach of the peace. Interference withthe normal flow of vehicular traffic or pedestrians,and the blocking of fire lanes or the means ofegress and ingress to a business would generally.constitute such a breach.

However, the fact that public inconveniencemay be involved or some unrest may be createdis not sufficient to terminate the protest actions.This was clarified by the United States SupremeCourt through Mr. Justice Douglas:

"... A function of free speech under our systemof government is to invite dispute. It mayindeed best serve its high purpose when itinduces a condition of unrest, creates dis-satisfaction with conditions as they are, or evenstirs people to anger. Speech is often provoc-ative and challenging. It may strike at prejudicesand preconceptions and have profund unsettlingeffects as it presses for acceptance of an idea.That is why freedom of speech, though notabsolute, is nevertheless protected against

.censorship or punishment, unless shown likelyto produce a dear and present danger of serioussubstantive evil that it rises far above publicinconvenience, annoyance or unrest."8

A distinction must be made between nonviolentcivil disobedience and the constitutionally pro-tected rights of speech, assembly, and petition.Both are forms of dissent, methods of protest, and

6 Konigsberg v. State Bar of California, et al., 366U.S. 36 (1961).

7 GERtANN, DAY & GALLATI, INTRODUCTION TOLAW ENFORCEmENT 90 (4th Rev., 1966).

8 Terminiello v. Chicago, 337 U.S. 1 (1949).

J. L. LeGRINDE

means of dramatizing alleged wrongs. Although thepractices of nonviolent civil disobedience generallywill contain elements of these rights, they serveprimarily as a base. Exercise of these freedoms doesnot, however, constitute civil disobedience. Non-

violent civil disobedience occurs when the prac-titioner, utilizing the constitutionally protectedfreedoms as a base, extends his activities until theyconstitute a breach of the peace or the violation of aspecific law.

The Case for Nonviolent Civil Disobedience

In the light of current events, the -averageAmerican tends to utilize the activities of MartinLuther King. Jr., and his organization as theprimary illustration of nonviolent civil disobediencein action. King's doctrines and teachings are basedprimarily on a distillation of the principles andpractices of Henry David Thoreau and MahatmaGandhi. King, like Gandhi, has added featuresand depths of "universal love" and converted theprinciples te a theological doctrine. King's ap-proach will be used in this paper as a primaryreference point.

The philosophy of nonviolent civil disobedienceis based upcn the conclusion that a government,its laws, the actions of its officials, or the sociallylegitimized practices of its citizens may be "evil."Accordingly, each individual has a right and aduty to evaluate each restriction imposed uponhim and fellow citizens, whether by governmentalaction or by society's informal conduct, to de-termine its moral propriety. While formulatingthis judgment the individual may and should seekthe counsel of others who exercise an influenceon his think.ng, but to be intellectually honest,his primary criterion must be his personal con-science. After his personal decision that an "evil"exists, the *:.dividual is morally obligated to re-sist not only the evil, but the instrumentality re-sponsible for -t.

Thoreau'- position, ably stated in his essay,"Civil Disobedience," is that direct violation ismorally soond without resorting to any otherform of legal redress. Thoreau said:

"Unjust Jaws exist: shall we be content to obeythem, or shall we endeavor to amend them,and obey them until we have succeeded, orshall we transgress them at once? Men generallyunder such a government as this, think thatthey ought to wait until they have persuadedthe majortty to alter them. They think that,if they should resist, the remedy would beworse than the evil.

"As for adopting the ways which the state hasprovided for remedying the evil, I know not

of such ways. They take too much time, and aman's life will be gone. I have other affairs toattend to. I came into this world, not chiefly tomake this a good place to live in, but to live in it,be it good or bad... If (the law) is of such anature that it requires you to be the agent ofinjustice to another, then, I say, break the law." IMartin Luther King, Jr., has adopted Thoreau's

general philosophy, but has disagreed with hisposition concerning the use of the remedies pro-vided by the instrumentalities of government.King says:

"Direct action is not a substitute for workin the courts and the halls of government.Bringing about the passage of a new and broadlaw by a city council, state legislature or theCongress, or pleading cases before the courts ofthe land, does not eliminate the necessity forbringing about the mass dramatization of in-justice in front of a city hall. Indeed, directaction and legal action complement one another;when skillfully employed, each becomes moreeffective." 10King advocates a doctrine of nonviolent direct

action by marches, demonstrations, sit-ins, andsimilar methods, which he fells "dramatize" theinjustices and prick the consciences of the nation'scitizenry. He feels that society must be confrontedwith the problem and that nothing will change inthe social order without the exposure of tensionsand prejudices.

King contends that when one disobeys "im-proper" laws he is in fact showing a respect torthe law. He states:

"I think a law is just which squares with themoral law and I think a law is injust which isout of harmony with the moral laws of theuniverse. Any man who breaks the law that con-science tells him is unjust and willingly acceptsthe penalty by staying in jail to arouse theconscience of the community on the injustice9

THOREAU, in KRUTCH, THOREAU: WALDEN ANDOTHER WRITINGS 92 (1963); Cf. TnOREAU, A PLEA FORCAPTAIN JOHN BROWN.

10 KING, WHY WE CAN'T WAIT 42 (New York: NewAmerican Library of World Literature, Inc., 1964).

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of the law is at that moment expressing thevery highest respect for law." 1

Nonviolent civil disobedients often justifytheir positions by reasoning that governmentderives its authority and power from the consentof the governed, and this places the responsibilityfor evaluating and criticizing the actions of thegovernment upon the individual. Since the main-tenance of a truly democratic society dependsupon free expression of ideas as to what constitutesthe "good of society", the governmental structuremust be effectively appraised of the desires ofits subjects so that it can maintain policies con-sistent with them. To the demonstrating group,nonviolent civil disobedience is regarded as themost expeditious method of communication,after other reasonable means have been exhaustedor have little possibility of being effectige.

King introduces the additional factor of thehigher authority of God into the foregoing tradi-tional argument, when he indicates that an unjustlaw is "out of harmony with the moral laws ofthe universe." Justification for this position canbe found in the Nuremberg and Eichman trials.Many of the defendants in these trials, criminallycharged with their acts of atrocity during the war,offered the defense that they owed an allegiance tothe legally constituted Nazi government and inthe performance of their acts they were executingdirect orders of this government and thus couldnot be held individually accountable. This defensewas adjudged unacceptable to the tribunals whoindicated that the defendants were obligated toexercise their individual conscience and questionthe morality or immorality of the action. That theywere following orders of a constituted governmentdid not serve as a defense. According to the tribu-nals a man's first duties were to humanity, con-science, and God.

There can be little argument that resorting toconscience or the traditional higher authority ofGod is perfectly acceptable in matters of individualmoral and religious behavior. Thus, the conscien-tious or ethical man is highly respected andhonored as long as his conscience keeps him withinthe bounds of the law. A controversy ariseswhen an individual or a minority group appliesthese personal criteria to the actions of the state orsociety in general, and implements their dissatis-

11 MCKEE, King Defends Lawbreaking Tactics, THESTAT JOUnMAL, (Lansing, Michigan), June 20, 1965,page A-13.

factions through civil disobedience. The philosophyof nonviolent civil disobedience justifies theimposition of personal or group conscience onsociety by indicating that the practitioners mustbe willing to freely accept the consequences oftheir acts. They must violate the law openly,in the spotlight of publicity, and must not attemptor desire to avoid legal retribution for theiroffenses. In fact, the imposition of a penalty by thestate adds to their religious veneration and self-sacrifice, and may be instrumental in rallying asympathetic public to the cause. Theoretically,this willingness to accept governmental punitiveaction entailed by his defiance of the law, exoner-ates the nonviolent civil disobedient from thecharge of being an anarchist.

The philosophy of nonviolent civil disobediencecan be summarized by the following basic tenets:

1. Governmental laws and societal practicesmay be evil.2. Every individual has the right and duty toevaluate laws and practices in order to establishtheir moral propriety.3. After determining that laws or practices areevil or unjust, an individual is morally obligatedto resist their imposition.4. When the traditional legal remedies havebeen exhausted or are ineffective, the individualmust employ disobedient behavior to dramatizethe injustice before society.5. The violation or disobedience must be publicand nonviolent.6. The individual must be willing to accept thelegal penalities or social criticisms that followas consequences of his acts.There is little doubt that it requires a highly

motivated and self-sacrificing individual topractice nonviolent civil disobedience under theseconditions honestly. In all probability there areonly a few individuals who have accepted andembraced by practice this theoretical, theologicalphilosophy of nonviolence. In fact, King acknowl-edges this by saying:

"The concept of nonviolence has spread on amass scale in the United States as'an instru-ment of change in the field of race relations.To date, only a relatively few practitioners ofnonviolent direct action have been committedto its philosophy. The great mass have used itpragmatically as a tactical weapon withoutbeing ready to live it." 12

12 KiNG, op. cit. supra note 10 at p. 152.

19671

J. L. LeGRANDE

The Case Against Civil Disobedience

To explore the negative implications of thephilosophy of nonviolent civil disobedienceanalytically, we must view it in a context muchbroader than the current civil rights movements.There is little doubt that those advocating theconcept perceive it as an effective method ofsocial reform to be extended to virtually everyarea of human endeavor.

Utilizing the precedents established by thecivil rights demonstrations and the Viet Namprotests, a practitioner of nonviolence, using thecriterion of personal conscience, could theoretically,unlawfully enter into Cape Kennedy and obstructthe firing of a spacecraft, block the launching of aPolaris submarine, obtain and publish military andgovernmental secrets, refuse to pay his income taxbecause of moral objections to the war on poverty,refuse to send his children to school, ignore amunicipal trash burning ordinance, or similarlyoppose virtually any law established by con-stituted authority.

Viewing the philosophy of nonviolent civildisobedience in this frame of reference, the op-ponents of the concept raise the following argu-ments.

INDEPENDENT ACTION RESULTS IN ANARCHY

In a true democracy, personal or minoritygroup judgments are respected. An individual ora minority group has an inherent right to reviewgovernmental action and determine whether it iscompatible with their personal or moral beliefs.However, upon finding a conflict with theirbeliefs, they should not unilaterally undertake toviolate the law, but should resort to legally pro-vided remedies.

According to its opponents, the philosophy'sinnate fallacy is that personal or minority groupjudgment is substituted for lawful determination.The philosophy must assume that each individualor group possesses a high degree of selfless integrity.It must assume that they are thoroughly familiarwith all the facts and circumstances that neces-sitated the enactment of the particular law. Itmust assume that the group objectively evaluatedall the complex factors bearing on the issues,without regard for selfish motives or desires.It must assume that they recognize that alllaws are a form of compromise, that they are theresult of extensive debate in the various com-mittees of the legislature, serious consideration of

chief executives and their staffs, and the scrutinyof a conscientious judicial system, all of whombrought their collective best judgments to theproblem. It must assume that the group's judg-ment is at least comparable to the collectivejudgments of the governmental system. Theopponent concludes that such individuals orgroups are rare.

Charles E. Whittaker, retired Justice of theUnited States Supreme Court, indicated thatthe practice of obeying "good" laws and violating"bad" laws "simply advocates violation of thelaws they [the disobedients] do not like, or in otherwords, the taking of the law into their own hands... No group of men can be permitted, in a govern-ment of laws, to take the law into its own hands.This is anarchy, which always results in chaos." 13

CIVIL DISOBEDIENCE WEAKENS THE

FouNDATIONS OF DEMOCRACY

Throughout history there is no record of asociety or group of men who have lived togetherany appreciable length of time without restrictions,regulations, or some form of law. Civilized manhas found it necessary to establish and to imposesanctions on himself and his fellow man in order toprovide personal security and to protect life,property, and civil rights. An elementary analysisof any legal system will readily disclose that,without law, effective law enforcement, andactive public support, civil rights are virtuallyuseless.

The opponents of nonviolent civil disobedienceindicate that in human society the unrestrainedexpressions of personal or homogeneous groupimpulses cannot be tolerated. Every citizen mustaccept restrictions for the common good. Theyargue that, since in civilized societies, man, bynecessity, had explicitly defined restrictions in aformal legal code and established both the machin-ery for enforcement and the procedures for orderlychange, no person or group may be permitted todisregard or violate the law because such actionsresult not only in a deterioration of the respectand effectiveness of the legal system, but alsoin a threat to the foundation of the freedom ofevery citizen under the system. Whittaker be-lieves that history clearly indicates that the first

13 WHITTAKER, The Dangers of Mass Disobedience,TnE READERS DIGEST 121-124 (Dec., 1965).

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POLICE ENFORCEMENT AND NONVIOLENT CIVIL DISOBEDIENCE

evidence of each society's decay appeared in thetoleration of disobedience of its laws.14

Justice Hugo Black of the United States SupremeCourt expressed the following opinion concerningthe practice:

"It is an unhappy circumstance, in my judg-ment, that the group which more than anyother has need of a government of equal lawsand equal justice, is now encouraged to believethat the best way for it to advance its cause,which is a worthy one, is by taking the law intoits own hands..."15United States Senator Robert C. Byrd felt that

civil disobedience could not be tolerated by society.He said, "Our country cannot stand firm uponlaws that are manipulated like Clay." 16

J. Edgar Hoover, Director of the F.B.I., hasgenerally agreed with these views. He commented:

"Civil disobedience and the unwillingness ofmany to resolve their difference by establishedlegal means will surely lead to the destruction ofthe institutions which protect their freedom... It is folly to hold that a utopia of individual

rights will rise from the destruction of respectfor the law." 17

CiviL DISOBEDIENCE WILL INCREASETHE PROBLEM OF CRIME

Some authorities contend that an indirectresidual effect of nonviolence is an increase inthe crime problem in the country. This theory isgiven credance by the fact that nonviolent civildisobedience tends to applaud the violation -oflaw and breeds a general disrespect for constitutedauthority. Hoover states:

"To my mind there are two frightening aspectsto civil disobedience. One, sowing contemptfor law and order and promoting pride in lawbreaking among the nation's youth can onlyresult in an acceleration of our serious crimeproblem... Secondly, where is the line to bedrawn against the snowball effect of civildisobedience? Willfully disobeying misdemeanorstatutes today and committing felonies to-

14 Ibid.15 Justice Black Dissents in Sit-In Case, Urges Ex-

ainialion, Tim STATE JOURNAL, (Lansing, Michigan),February 24, 1966, p. F-7.

16BYRD, Police Brutality or Public Britalify, TnEPOLICE CIIEF 8-10 (Feb., 1966).

7 Hoovxiz, Message From the Director, F. B. I. LAWENFORCEMENT BULLETIN 2 (Nov. 1965). Also seeMessage Front the Director, F. B. I. LAW Ex oRcmEm TBULLETIN 2-3 (May, 1965).

morrow is a logical regression from a governmentof laws to an anarchist society." IsMany other leading police administrators

agree with Director Hoover's views."

CIVIL DISOBEDIENCE GROUpS ARE SUSCEPTIBLETO SUBVERSIVE INFILTRATION

Another contention frequently raised as animportant collateral issue is the possibility ofinfiltration of civil disobedience organizations bysubversive groups whose purpose is convertingthe organization's "legitimate" goals to their ownuses. There have been a number of direct ac-cusations that communists are active in. civilrights organizations. Other commentators haveindicated that there is a definite attempt toinfiltrate the organizations. There can be littledoubt that there is no definite assurance againstsuch an event.2 0

CiviL DISOBEDIENCE ENCROACHES UPON THERIGHTS OF OTHERS

Our system of administering justice is based onthe principle of equitably balancing the rightsand duties of the individuals involved in a con-troversy. The legal system does not permit acitizen to exercise "his rights" freely, when thatexercise unduly interferes with the rights of others.When an impasse is reached between who has thegreater right or to what degree each right may beexercised, an adjudication should be made by thecourts to determine who has the overridinginterest or where an equitable line of compromisemight be drawn. Thus, in theory, the law doesnot permit an individual to abuse another'srights in the exercise of his own.

Opponents point out that the practices of non-violence, in many instances, have amountedspecifically to this abuse. Many sit-ins are plannedso that they do economic damage to the proprietor.The major Birmingham, Alabama demonstrationswere strategically timed to interfere with theEaster buying season and thus brought strongeconomic pressures on the businessmen of thecommunity,2' resulting in a loss of profits and aninterference with their rights to engage in privateenterprise. Accordingly, in a vast majority of

'8 Ibid.19 Cf. Here's Hfow Crimne Problemis Look To Enforce-ten Officials, F. B. I. LAW ENFORCEMENr BULLETIN

18-29 (Dec. 1966).20 S.OUSEN, The Colnttnnists are Infillrating the Cizil

Rights Movement, LAw AND ORDER 10 (Feb. 1966).21 KING, op. cit. supra note 10.

J. L. LeGRAXDE

cases, the civil disobedient, through his illegalaction, interferes at least to some degree with thelegal rights of others.

LEGAL REMEDIES ARE AN ADEQUATE ALTERNATIVE

TO CIVIL DISOBEDIENCE

All discrimination, public or private, whichviolates the United States Constitution is redress-able in the court system. Congress has enactedsweeping pieces of civil rights legislation. (Pro-ponents of non-violence indicate this occurredas a result of their actions.) Intricate detailedprocedures have been established to assureadequate enforcement of this law. Legal assistance,through the United States Attorny General'sOffice, is available on request. The legal system ofthe United States today is clearly in an excellentposition to breathe life into Cicero's axiom of"where there is a wrong, there is a remedy."

There can be no doubt that the legal system istime consuming and that it cannot immediatelycorrect social situations that have developedover a period of decades. But to many there islittle question that its remedies are just and sureand serve as an adequate alternative to chaoticsocial effect engendered by civil disobedience.

Morris I. Leibman, an attorney and chairmanof one of the American Bar Association's majorcommittees, stated this position as follows:

"... The concept of righteous civil disobedienceis incompatible with the American legal systemand society, which more than any other pro-vides for orderly change. I cannot accept theright to disobey when the law is not static andeffective channels for change are constantlyavailable." 2

The case against non-violent civil disobediencehas been summarized in a statement made byLewis F. Powell, former President of th- AmericanBar Association:

"However successful the techniques of dis-obedience and coercion may be in the shortrun and whatever the justification, they areself-defeating and imperil individual freedom inthe long run. An ordered society cannot exist ifevery man may determine which laws he willobey and if techniques of coercion supplantdue process." 2

. LEIBMAN, Civil Disobedience: A Threat to Our LawSociety, A. B. A. J. 645 (1965).

23 POWELL, The President's Anmual Address: TheState of the Legal Profession, A. B. A. J. 821 (1965).

The Police Administrator and Non-Violent Civil Disobedience

The police administrator should have a thoroughunderstanding of the concepts of civil disobedienceand the general arguments for and against itspractice. He should be able to discuss analyticallythe various components and issues involved.However, in his official capacity, the policeadministrator should not become involved inrendering moral judgments concerning the pro-priety of such actions. He should not be activelyengaged in advancing or repressing the cause ofthe protest. The police philosophy in such mattersshould show an understanding of the social conflict,but should be concerned primarily with the main-tenance of civil order and public safety, while atthe same time assuring that maximum lawfulexpression of the individual is permitted.

In dealing with non-violent civil disobediencethe police are confronted with a mass of humanity,who, for the most part, is not using force in theirviolation of the law, and who is not attempting toavoid the consequences of police action. Facedwith this type of incident, the police adminis-trator's first step would appear to be a re-evalu-ation of the traditional police role of "enforcingthe law."

There is a common stereotype of police asministerial officers who mechanically performenforcement tasks which have been legislativelydictated. Their function is too often viewed asnothing more than the gathering of evidenceconcerning a criminal act and making an arrestwhenever sufficient evidence exists. Police them-

selves tend to reinforce this conception by denyingthat they exercise discretion and by a generalfailure of police administrators to specify thecriteria upon which their officers base their de-cisions to arrest, etc. Contrary to this belief,the police officer today has broad discretionary

powers in deciding whether or not to arrest. Inindividual cases, decisions not to make an arrestare made routinely by officers because of thenature of the offense, the circumstances of itscommission, or a multiplicity of other factors.2 4

Generally, department policy requires the officerto arrest only in cases of serious misdemeanors or

felony violations. In other cases, the police officer,utilizing his own personal judgment, may choose

24 Cf. SKOLNICK, JUSTICE WITHOUT TRIAL: LAW

ENFORCEMENT IN DEMOCRATIC SOCIETY (1966); andLAFAvE, ARREST, THE DECISIOx TO TAKE A SUSPECTINTO CUSTODY (1965).

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POLICE EXFORCEMENT AND NONVIOLENT CIVIL DISOBEDIENCE

to (1) ignore the offense, (2) warn the violatorverbally, (3) issue the violator a written warning,(4) issue the violator a summons which requires acourt appearance or direct payment of fine, or(5) physically arrest the violator and confine himuntil a proper bond is posted.

No one can argue that police officers shouldexercise power outside the boundaries defined bythe legislature, such as making an arrest for an actor omission not defined as a crime. The debatablepoint is whether police officers may exercisediscretion within the boundaries, and thus notmake an arrest for an act or omission that thelegislature has defined as a crime. Opponents ofthe use of police discretion hold fast to the positionthat police functions are ministerial and that therule of law requires a freedom from the exercise ofany arbitrary power. They indicate that thediscretion to forego an arrest and thus thwartpunishment is just as arbitrary as exercisingpower against acts which the legislature has notdeemed improper.

The acceptance of the philosophy that the policefunction is solely ministerial requires that onesubscribe to a policy of complete enforcement ofall criminal law. This complete enforcementimplies that police are required to enforce allcriminal laws and city ordinances at all timesagainst all violators regardless of the circum-stances. It devoids the officer of any authority toignore violations or to warn offenders. It relegatesthe police officer to mechanically enforcing thelaw with the coldness of a computer. Such en-forcement policy, aside from being impossible toexecute because of limited resources, would beintolerable to the public and restrict the individu-al's activity at virtually every quarter. It mustbe recognized that the goals of the police may beaccomplished by means other than the applicationof a strict enforcement policy. As Herman Gold-stein, former executive assistant to the super-intendent of the Chicago Police Department,points out:

"Discretion is often -exercised by the police in asincere effort to accomplish a social good. Thisis a sort of humanitarian gesture in which thepolice achieve the desired objective withoutfull imposition of the coldness and harshnessof the criminal process." 25

25 GOLDSTEmN, Full Enforcement vs. Police DiscretionNot to Involve the Criminal Process, Address before theNinth Annual National Institute on Police and Com-munity Relations, Michigan State University, May,1963, Mimeographed, p. 5.

For the most part, police administrators through-out the country have stood fast with the view thatthey do not exercise discretion and that theirresponsibility is the enforcement of the law underconditions established by statute and ordinance.Commenting on this situation, Goldstein says:

"What is the position of the average policeadministrator in these deliberations? He ismost likely to support the view--somewhathesitatingly-that he is committed to a policyof full enforcement. It is, after all, the policymost commonly enunciated by police agencies.In contrast, the mere suggestion that a policeadministrator exercises discretion in fulfillinghis job may be taken as an affront--an attackupon the objective and sacrosanct nature of hisjob-that of enforcing the law without fearor favor. Here too, there is a little hesitation-an awareness -that discretion must be and isexercised. But like planned parenthood, it maybe something you practice; it is not somethingyou admit or even discuss." 2

Finding 'themselves in the dilemna that Gold-stein aptly analyzed, most police administratorshave reacted with the traditional policy statementof full law enforcement against non-violent civildisobedients.. The police pattern most widelyaccepted and acclaimed is one of strict enforce-ment with all parties treated equally under thelaw. An example of this policy is the guidelinesutilized by the New York City Police Department:

The Police Position on Preserving the Pitblic Peace

1. The police are the representatives of thegovernment of laws, not men.

2. The police have a sworn duty to enforcethe laws-impartially, objectively, and equally.3. The police are aware of the significance of

the surge for equal rights. They recognize andrespect the right of the people to express theirviews on matters of public concern.4. The police will protect the rights of all

to peacefully assemble and petition. They willbrook no interference with these rights byanyone. Their impartial role is clear and set bylaw.

5. The police will also protect the rights of thepeople to pursue their lives and lawful occu-pations free from illegal interferences.6. The police will take appropriate action under

law when the rights of anyone are obstructed.7. It must be clearly understood that sit-

6 Ibid. p. 2.

J. L. LeGRANDE

downs or other acts which prohibit the safe andpeaceful movements of persons and vehicles in

the public streets, and prevent access to build-ings are a violation of law and those who use

these unlawful means to gain their ends are

subject to arrest.8. It must be clearlv' understood that police

not only have the duty but the obligation to

meet illegal action with legal action to thedegree necessary to restore and maintain law

and order.9. It must be clearly understood that the

police will not allow themselves to placed in

the false position of 'aggressors'. The policeare aware of-and trained to assume--their

full responsibilities; they expect others to

remember and recognize they also have respon-

sibilities.10. The police will serve the public peace by

every legal means. They expect public co-operation, compliance, and understanding.n

Others have stated the full enforcement positionin much stronger terms:

"The racial demonstrators on the move in the

streets are seeking to go to jail .... To arrestthem is the only honorable thing to do.... The

policeman has a sworn duty to perform. When

he is aware that a law is being violated, he musttake the necessary action to stop it.... If the

law is on the books, he is sworn to enfoice it." 21

The foregoing philosophy of strict enforcement,although perhaps somewhat idealistic and inflexi-

ble, is perfectly legal. Those administrators adopt-ing this policy have acted well within the scope of

non-violation of individual constitutional rights.The majority of police administrators across the

nation attempt to face these problems in a legally-

oriented manner. However, others have increasedthe complexity of the situation through their owninappropriate action. The United States Com-

mission on Civil Rights in a report to the President

stated:"...The Commission's investigation disclosedthat local officials in a number of Southerncommunities suppressed constitutionally pro-tected public protests by arrest and prosecution.

... Local officials in communities studied by the

.-, The New York Municipal Training Council Bulle-tin, July-August, 1965. The same policy statement wasadopted by the Chester, Pennsylvania Police Depart-ment, see STAHL, SUSSMAN, AND BLOOMFIELD (Editors),TuE COMMUNITY AND RACIAL TENsIoN 37 (1966).2

8 TOWLER, TnE POLICE ROLE IN RACIAL CONFLICTS

3, 109-110 (1964).

Commission in Mississippi, Alabama, Florida,and Georgia did not permit persons to exercise

the right to assemble peaceably to make knowntheir grievances. Civil Rights demonstrators

were repeatedly arrested, dispersed or left un-

protected before angry crowds, without regard

for the right to public protest assured by the

Constitution." 29

That some police departments deprive indi-viduals of their constitutional rights reflects upon

the entire police profession. Reports of such actionsare highly disturbing to the progressive chief of

police who has conscientiously attempted to de-velop a legally constituted, community-orientedenforcement policy. He realizes that because of

relatively isolated, but highly publicized acts inanother city he and his men will share the brandof "gestapo" and receive at least the residual ef-fects of charges of police brutality and suppression.A respect for law and law enforcement cannot exist

in this type of atmosphere. It further alienates the

protesting group from the police and in additionprojects a bad general image of the police acrossthe nation and a bad image of the nation around

the world.A relatively small group of police administrators

has avoided both the illegal tactics referred to inthe Civil Rights Commission's report and therather inflexible strict enforcement policies of thetraditional school. They have experimented to

determine if free expression, public order, and"social good" can exist concurrently without re-pressive police action. These administrators havefollowed a policy of extreme tolerance, fully co-

operating with lawful demonstrations and ignoringminor misdemeanor offenses committed by civil dis-

obedients; they take specific arrest and enforce-ment actions only when public danger is involved.

The police administrators of the Metropolitan

Police Department of St. Louis, Missouri, haveutilized this approach with excellent success.Despite the fact that St. Louis has experienced ap-proximately 170 demonstrations since 1963, veryfew arrests have been made. One of the demon-

strations took place in the downtown area during

the 5:00 p.m. rush hour. Instead of making massarrests the police rerouted traffic. Their policy has

been that unless there is serious difficulty no arrestswill be made. The following statements appeared

29 United States Commission on Civil Rights, LawEnforcement: A Report on Equal Protection in the Soul/,Washington, D.C.: U.S. Government Printing Office,1965, pp. 173-175.

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POLICE ENFORCEMENT AND NONVIOLENT CIVIL DISOBEDIENCE

in an unpublished administrative order of the St.Louis department:

"It is the policy of the Department regardingracial demonstrations that no direct police ac-tions will be taken in the absence of violence,orders of the court or emergency situationswherein life or property is endangered....Generally in such instances the officers assignedto the scene will be plain clothes personnel....In the absence of violence or emergency, no ac-tion will be taken unless warrants are issued.Under these conditions the officer shall only ob-serve and report existing conditions." 8 0

Such a policy does not imply an apathy or lackof preparations for an event that might occur. Aslong as the demonstration remained legal or in thenonviolent civil disobedience category and by-standers remained orderly, no uniformed officerappeared on the scene; to an uninformed observerit would appear that no police action was present.But if the demonstration went beyond these per-missive stages or non-demonstrators became dis-orderly, a task force organization was available totake immediate action to meet whatever difficultyarose.

This philosophy was again practically demon-strated during the Republican Convention at theCow Palace. Concerning the numerous "lie-ins"and traffic blockage by civil rights groups, ChiefJoseph Kimble, San Carlos, California Police De-partment states:

"We had decided to consider all this as similarto the conditions at a football game, whererooters are not necessarily arrested because theytear down the goal posts. We treated it the sameway-no arrests. Finally as the ground gotcolder ... the demonstrators arose and went

home." 31

There is a growing movement outside the policecircle for an implementation of the practices usedby the police in St. Louis and San Carlos. AllenKnight Chambers, President of the NAACP LegalDefense and Education Fund, Inc., indicated thatin some instances the absolute right of the publicto free passage in streets and other thoroughfaresmight be suspended if the results would permit aneffective demonstration along peaceful lines 2 J.

30Metropolitan Police Department, St. Louis, Mis-souri, Supplemnent One to Administratie Order One (Un-published, 1963).

31 K- LEa, Patience and Planning, The Key to Con-trolling Demonstrations, LAW AND ORDER 72 (Sept.1965).

n STAHL, SUSSMAN, AND BLOOMFiELD, op. cit. supranote 27 at p. 75.

Griffin Crump, Executive Director of the India-napolis Human Rights Commission, approves thesuspension or waiver of technical laws protectingthe public's right to use sidewalks, streets, andother thoroughfares.33 Eric M. Mann, Field Secre-tary of the Congress of Racial Equality, feels thatpolice departments should evaluate the laws theyare to enforce and at least give the protestors thebenefit of the doubt.34

There appears to be growing legal precedent forsuch a police policy. Two Supreme court caseshave indicated that "a non-forcible attempt togain admittance or remain in a place of public ac-comodation in defiance of a policy of segregationis immune from prosecution by state authorities." 35

Opponents of the foregoing philosophy will raisethe argument that "passive law enforcement" inresponse to passive or non-violent demonstrationsrequires the police administrator to forsake hisoath and cast aside the responsibility of the policeto "enforce the law." It must be clearly recognizedthat enforcement is a prime police duty but thereare other police goals of equal or overriding im-portance. One such goal is the maintainance ofpublic safety. In a demonstration, as a practicalmatter, it must be recognized that feelings andperhaps tempers are relatively high. If the group ispermitted to release its emotions through rela-tively harmless singing, chanting, and speechesduring the course of the "lie-ins," "sit-ins," etc.,the end result may be nothing more than publicinconvenience. However, if the police take mas-sive repressive action prior to the demonstrationor extensive enforcement action during its tenure,they may well furnish the spark that may ignite apotentially volatile situation. When this occurs,enforcement and public inconvenience are nolonger the primary issues. The administrator nowmay be responsible for controlling a major violentdisturbance that endangers the public, not onlyduring initial stages, but also one which leavesresidual ill-will which may flare up again at anytime. Faced with these alternatives, the responsibleadministrators should choose to establish a pas-sive enforcement policy and permit a degree ofpublic inconvenience, in order to prevent the pub-lic from being endangered through a hazardousincident stimulated by police activity.

Professor Frank Remington of the University ofWisconsin ably pointed out the fallacies of police

w Ibid.1 Ibid. p. 203.3-Hamm v. City of Little Rock, Luper v. Arkansas,

379 U.S. 306, (1964).

J. L. LeGRANDE

adherance to the philosophy of strict enforcementin cases. Ie said:

"Police insistencc that their responsibility is tofully enforce the law is to perpetuate a mythwhich -is impossible of achievement and wouldbe undesirable if it could be achieved. At timestis may be an understandable public relationsposition, but has seriously adverse consequences

for police if they fail to recognize that theirs isa responsibility for the development of an ade-quate and fair law enforcement program withinlegal limits." 31'6REMINGTON, Social Changes, The La:,, and The

Common Good, PAPERS PRESENTED AT THE TENTH

ANNUAL INSTITUTE ON POLICE AND COMUNITY RELA-TIONS, East Lansing, Michigan: Michigan State Uni-versity, 1964, p. H-11, (Mimeographed).

Conclusion

The enforcement function is an extension of theexecutive branch of government and directly sub-jected to ihe supervision and control of the citymanager, the city council, the town board, thecommission, the alderman, or a similar executiveauthority. In such a position the police frequentlyfind themselves enforcing the broad policies of thecommunity adlministration and thus maintainingor attempting to maintain the status quo. Theprotesting'group is rebelling against the status quo,and consequently protestors' interest and policeinterest come into direct conflict.

When this situation exists, the police quite fre-quently become one of the targets of the protestors'attack. Unwittingly, by reacting in a traditionalmanner, the police contribute more to the problemthan to its solution. Although acts of non-violentcivil disobedience may appear to be spontaneous orpoorly organized, quite often they have been de-veloped with the same care and skill a militarygeneral utilizes in planning and executing a majormaneuver. Many non-violent campaigns includeprovisions for a transportation corp, legal opinionson the existing city codes, data on bail bond situ-ations and financial assistance in reserve for nec-essary bail bond contingencies, workshops andtraining sessions for participants, meticulous sur-veys of main streets, march routes, means ofegress and ingress of picketing sites, and completelayouts of business establishments, and selectionof primary and secondary targetsY

Included in the strategy is a desire to be arrested.Mass arrests serve the general puposes of the move-ment and add to the amount of publicity for thecause, and often against the police. If the policeare "brutal" in their action, their action serves tofurther martyr the "victim" and possibly invoke

37 KiXG, op. cit. supra note 10, at p. 55-56.

additional sympathy. For the disobedient, goingto jail is no disgrace, but actually is considered a"badge of honor." 1 Concerning mass arrest poli-cies, William Miller comments:

"Officials who imagined that they were main-taining law and order may see themselves castin the role of oppressors and find the image un-comfortable... Going to jail potentially raisesthe question whether the offense at issue is sovital to the existence of the opponent's way oflife that its whole system of law enforcementmust be made to hinge on it." 9Mahatma Gandhi pressed the point even

stronger by indicating, "Civil disobedience thenemphatically means our desire to surrender to asingle unarmed policeman. Our triumph consistsin thousands being led to the prisons like lambsto the slaughter house." 40

Time M11agazine in rather picturesque language,perhaps indicated the proper direction for law en-forcement by the following analysis:

"Whenever one of the Rev. Dr. Martin LutherKing's non-violent civil rights drives is met bywhite non-violence, the result is something likedriving a tack into a marshmallow: there is verylittle impact." 4aAlthough traditionally the police have not been

a revolutionary or innovating social force, thecompetent administrator, utilizing and adaptinghis discretionary authority and being a practicingsocial scientist, can take action to minimize thedegrading repercussions of an ineptly policed dein-onstration where elements of non-violent civil dis-obedience are involved.

3 0 Ibid. p. 30.a9 MILLER, op. cit. Supra note 1, at pp. 153-154.40 GANDIII, 'A. K., NoN-VIOLENT RESISTANCE 172

(1961).41 Ciil Rights, TIME MAGAZINE, February 19, 1965,

p. 23.

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