Gilligan v. Morgan Brief for the United States as Amicus Curiae

    N o. 71-1553

i t  j&tjrtmt d̂ iu't 4  i t  $itts
October T erm , 1972

J ohn  J .  G illigan, et al., petitioners

v.
Craig M organ, et al.

ON W R IT  OF C E R T IO R A R I TO T H E  U NITED  S T A T E S  COURT OF 
A P P E A LS FO R T H E  S IX T H  C IRCU IT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ERW IN N. GRISWOLD,
Solicitor General, 

HARRINGTON WOOD, Jr.,
A ssistan t A ttorney General, 

ROBERT E. KGPP.
JOSEPH B. SCOTT,

Attorneys,
D epartm ent o f Justice, 

W ashington, D.C. 20530.
ROBERT W. BERRY,

General Counsel,
R. KENLY WEBSTER,

D eputy General Counsel,
WILLIAM C. WOOLDRIDGE,
JAMES S. CAREY,

Attorneys,
D epartm ent of the Arm y,

W ashington, D C. 20310.



I N D E X

Page
Opinion below___________   1
Jurisdiction. _____________________________  1
Statute and regulations involved_____________  2
Questions presented____________    2
Interest of the United States________________  3
Statement------ ----------------------------------------  3
Summary of argument_____________________  4
Argument:

I. Introduction: the statutory and regu­
latory context___________________ 5

A. The National Guard_________  6
B. The role of the Federal Govern­

ment in training the Army 
National Guard___________  9

C. Rules pertaining to the use of
force_______     12

1. Army use-of-force rules __ 13
2. Ohio use-of-force rules__ 14

II. Respondents’ claim—that the training,
weapons, and orders of the Ohio Na­
tional Guard deprive or threaten to 
deprive them of their constitutional
rights—is not justiciable___________ 15

III. Respondents have no standing to main­
tain this suit____________________ 20

A. Respondents have not identified 
a sufficient threat of specific 
future harm to justify invoking
the judicial process________  22

a)
497- 185— 73-------------1



II

Argument—Continued 
III.—Continued

A. —Continued
1. The single incident at

Kent State in May 1970 
does not pose a sufficient 
threat of repetition to 
warrant judicial interven- Page 
tion________________  22

2. Respondents have no
standing for the further 
reason that the Na­
tional Guard practices 
and policies on which 
their case is based no 
longer exist_________ 22

B. Respondents’ suggestion of a
“chilling” effect on their First 
Amendment rights is insub­
stantial_________________  27

Conclusion_______________________________ 28
Appendix A______________________________ 29
Appendix B______________________________ 41

CITATIONS
Cases:

Arrow Transportation Co. v. Southern R. Co.,
372 U.S. 658_______________________  17

Baker v. Carr, 369 U.S. 186_____________  5, 21
Belknap v. Leary, 427 F. 2d 496_______  23, 24, 25
Cottonreader v. Johnson, 252 F. Supp. 492___ 23
Flast v. Cohen, 392 U.S. 83______________  21, 24
Gomez v. Layton, 394 F. 2d 764___________  23
Hague v. C.I.O., 307 U.S. 496____________ 22, 23
Laird v. Tatum, 408 U.S. 1___  5, 17, 21, 25, 27, 28-



I ll

Cases—Continued page
Lankford v. Gelston, 364 F. 2d 197-------------  23
Levitt, Ex parte, 302 U.S. 633-------------------  22
Lewis v. Kugler, 446 F. 2d 1343---------------- 23
Linda R. S. v. Richard I)., No. 71-6078,

decided March 5, 1973________________ 21
McAbee v. Martinez, 291 F. Supp. 77_____  19
Moose Lodge No. 107 v. /m s, 407 U.S. 163___ 21
Orloff v. Willoughby, 345 U.S. 83__________ 19
Poe v. Ulbnan, 367 U.S. 497_____________  22
Schnell v. City of Chicago, 407 F. 2d 1084___ 23
Sierra Club v. Morton, 405 U.S. 727_______  21
Tileston v. Ulhnan, 318 U.S. 44_.__________  24
United States v. Fruehauf, 365 U.S, 146____  17

Constitution and statutes:
United States Constitution:
Article I, Section 8, cl. 15____________ 2, 6
Article I, Section 8, cl. 16____________2, 6, 9
Article III_______________________  21
First Amendment__________________  5, 27

Army Reorganization Act of 1901, 31 Stat.
748_______________________________  7

Dick Act of 1903, 32 Stat. 775___________  7
National Defense Act of 1916, 39 Stat. 166

as amended, now 32 U.S.C. 101, et seq__ 7
10 U.S.C. 511(d)__________________ 10
32 U.S.C. 105_________    8
32 U.S.C. 108____________________  8
32 U.S.C. 109(c)__________________  8
32 U.S.C. 110_____________________ 2, 8
32 U.S.C. 502____________________  8
32 U.S.C. 502(a)(1)________________ 11
32 U.S.C. 502(a)(2)________________ 12
32 U.S.C. 502(d)(3)________________ 11
32 U.S.C. 510(b)(2)________________ 11



IV

Constitution and statutes—Continued 
Ohio Revised Code:

§ 5923.1 (1971 Supp.)_______ _
§ 5923.21_________________ „______
§ 5923.22 (1971 Supp.)______________
§ 5923.28 (1971 Supp.)______________

Miscellaneous:
Army Subject Schedule 19-8, “Control of Civil

Disturbances”_______________________ 10
53 Cong. Rec. 4356____________________  8
Field Manual 19-15, “Civil Disturbances and

Disasters”, dated March 25, 1968_______  13
H. Rep. No. 297, 64th Cong., 1st Sess_____  7
Weiner, Militia Clause of the Constitution, 54 

Harv. L. Rev. 181(1940)______________  7

CO
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J t t  M  Gjmtrf of {ft 1 1 ' n M  S ta te s
October Term , 1972

No. 71-1553
J ohn  J .  Gjlligan, et al., petitioners 

v.
Craig M organ, et al.

ON W R IT  OF C E R T IO R A R I TO T H E  U NITED  S T A T E S  COURT OF 
A P P E A L S  FO R T H E  S IX T H  C IRC U IT

BRIEF FOR TEE UNITED STATES AS AMICUS CURIAE

OPINION BELOW

The opinion of the court of appeals (Pet. App. 11-35) 
is reported sub nom. Morgan v. Rhodes at 456 P. 2d 
608.

JURISDICTION

The judgment of the court of appeals was entered 
on February 15, 1972. On May 15, 1972, Mr. Justice 
Stewart extended the time for filing the petition for 
a writ of certiorari to May 22, 1972. The petition was 
filed on May 20, 1972, and was granted on October 24, 
1972. The jurisdiction of this Court rests on 28 U.S.C. 
1254(1).

(i)



2

STATUTE A M  REGULATION INVOLVED

32 U.S.C. 110 provides:
The President shall prescribe regulations, and 
issue orders, necessary to organize, discipline, 
and govern the National Guard.

The pertinent federal and state regulations are set 
forth in the Appendix, infra pp. 29-45.

QUESTIONS PRESENTED

1. Whether respondents’ claim—that the training, 
weapons, and orders of the Ohio National Guard 
deprives or threatens to deprive them of constitutional 
rights—is justiciable.

2. Whether respondents have standing to bring this 
suit.

INTEREST OF THE UNITED STATES

Pursuant to its authority under Article I, Section 
8, els. 15 and 16 of the Constitution and 32 U.S.C. 110, 
the United States, through the Department of the 
Army, trains members of National Guard units for 
civil disturbance control duties. I t is therefore the 
Army’s training policies and practices which the court 
of appeals has ordered the district court to review. 
Furthermore, while operational decisions, such as the 
kind and amount of force to be used in controlling 
civil disturbances, are left to the states, the Army and 
the State of Ohio now observe the same rules per­
taining to the use of force in civil disturbances. The 
policies and practices of the Army with respect to 
the use of force therefore would be implicated in 
the review the district court has been directed to



3

undertake. Accordingly, the United States has a sub­
stantial interest in this case.

STATEMENT

Respondents, on behalf of themselves and all other 
students at Kent State University, filed a complaint in 
the United States District Court for the Northern 
District of Ohio, seeking declaratory and injunctive 
relief. The complaint, which seeks generally to enjoin 
the Ohio National Guard from suppressing any future 
civil disturbances on the Kent State campus until its 
training and its operating policies have been changed, 
was dismissed by the district court for failure to state 
a claim for which relief could be granted (App. 14). 
The court of appeals App. 22).

Although the complaint (which is set forth at App. 
3-13) is discursive, the court of appeals construed it 
as attempting to state three related causes of action. 
The court unanimously affirmed the dismissal of two 
of those causes of action, and respondents have not 
sought certiorari with respect to those claims. How­
ever, a divided court reversed the dismissal of the 
third cause of action, which the court read as raising 
the following question (Pet. App. 18) :

Was there and is there a pattern of training, 
weaponing and orders in the Ohio National 
Guard which singly or together require or make 
inevitable the use of fatal force in suppressing 
civilian disorders when the total circumstances 
at the critical time are such that nonlethal force 
would suffice to restore order and the use of 
lethal force is not reasonably necessary? [Italics 
omitted.]



4

The court in effect held that this question fairly stated 
a claim that the actions of the Ohio National Guard 
threatened to deprive respondents of life without due 
process of law, that the claim so stated was justiciable, 
and that if the claim were sustained, appropriate 
injunctive relief could be fashioned (Pet. App. 
18- 21).

SUMMARY OF ARGUMENT

For two separate reasons, respondents’ contention— 
that the training, weapons and orders of the Ohio 
National Guard deprives or threatens to deprive them 
of constitutional rights—does not create a justiciable 
controversy: (1) respondents’ complaint does not state 
a justiciable claim and (2) respondents have no stand­
ing to maintain this suit.

1. Respondents seek judicial review of the pro­
piety of the training, weapons and orders of the Na­
tional Guard. That issue lacks the specificity required 
for adjudication and would involve the judiciary in 
inquiries which call for specialized knowledge and 
skills which it does not possess. The determination of 
the proper way in which to prepare members of the 
National Guard for the performance of their military 
duties must be made by the military. Moreover, judi­
cial prescription, through the use of injunctive 
powers, of the manner in which the Guard should 
deal with civilian disorders is singularly inappro­
priate. The military authorities should not be placed 
within the constraint of a judicial order telling them how 
to operate in the midst of the stress, confusion, and 
unexpected crises which characterize civil dis­
turbances.



5

2. Respondents have not shown “a personal stake 
in the outcome of the controversy.” Baker v. Carr, 
369 U.S. 186, 204. Respondents claim that the “rules, 
procedures and operating methods followed by the 
Ohio National Guard” (Br. 2) subject them to a con­
tinuing threat of future deprivations of their con­
stitutional rights. But their claim of future harm is 
wholly speculative. The May 1970 shootings at Kent 
State, tragic as they were, do not by themselves justify 
fears of a recurrence of such incidents. Moreover, 
since that time there have been substantial revisions 
in the rules employed by the Guard with respect to 
the use of force in civil disorders, and these revisions 
eliminate the source of much of respondents’ ex­
pressed concern for the future. Furthermore, respond­
ents’ suggestion that the practices and policies of the 
Guard intimidate them in the exercise of their First 
Amendment rights has no objective basis. According­
ly, respondents fail to show “ specific present objective 
harm or a threat of specific future harm * * * [and 
therefore] * * * on this record the respondents have 
not presented a ease for resolution by the courts.” 
Laird v. Tatum, 408 U.S. 1,14-15.

ARGUMENT

I. INTRODUCTION : THE STATUTORY AND REGULATORY
CONTEXT

The pertinent federal and state statutes and regula­
tions are of crucial importance, and we discuss them 
below in detail, since in our view they deserve more 
emphasis than has been given them by the court below, 
and by the parties and amici here in their briefs.



6

In order that the full setting may be before the 
Court, we will first describe the constitutional basis 
for the National Guard system and the pertinent 
statutes, federal and state, which provide the basic 
structure for the system. We then discuss the federal 
government’s responsibility for training the National 
Guard, and, in particular, the training that guardsmen 
receive for civil disturbance control duty. Finally, in 
connection with the Guard’s civil disturbance control 
responsibilities, we explain the rules observed by the 
Army and the Ohio National Guard with respect to 
the use of force.

A. T H E  NATION AL GUARD

The Army National Guard and Air Force National 
Guard are the “Militia” referred to in Article I, Sec­
tion 8, clauses 15 and 16 of the Constitution:

The Congress shall have Power * * *
To provide for calling forth the Militia to ex­

ecute the Laws of the Union, suppress Insur­
rections and repel Invasions;

To provide for organizing, arming, and dis­
ciplining, the Militia, and for governing such 
Part of them as may be employed in the Serv­
ice of the United States, reserving to the States 
respectively, the Appointment of the Officers, and 
the Authority of training the Militia according to 
the discipline prescribed by Congress; * * *.

In first exercising the militia power, Congress pre­
scribed only the organization and discipline of the 
militia; subsequently, it also supplied arms and equip­



7

ment.1 Since the beginning of this century, when the 
term “ National Guard” came into use, Congress has 
also provided funds for the compensation of militia 
members. The basic structure of the National Guard 
as it is known today was established by the National 
Defense Act of 1916, 39 Stat. 166, et seq., as amended, 
now 32 U.S.C. 101, et seq.

The 1916 Act embodied a fundamental decision to 
use the organized State militia, rather than a standing 
army or national force of volunteer reserves, as a 
basic source of reserve military strength. H. Sep. No. 
297, 64th Cong., 1st Sess., pp. 2-9, 14 (1916). Congress 
not only xirovided for the arming, organization and 
discipline of the National Guard, but authorized the 
use of federal funds for the compensation of its offi­

1 For a comprehensive discussion of the origins of the Na­
tional Guard, see Wiener, The Militia Clause of the Constitution, 
54 Harv. L. Rev. 181 (1940). In the late Eighteenth century the 
militia was “a home-defense force, composed of most able-bodied 
men.” Wiener, supra, 54 Harv. L. Rev. at 182. Most of the nation's 
military problems during the late Eighteenth and early Nine­
teenth centuries were dealt with by the militia and not by a 
standing army. During this time, however, the deficiencies of 
the militia became notorious—for example, many militiamen 
refused to fight outside their own state—and an expansion of 
the regular army gradually took place. The first modern in­
stitutional reforms were introduced by the Army Reorganiza­
tion Act of 1901, 31 Stat. 748, which established a regular army 
“suited to the requirements of the United States as a world 
power” (54 Harv. L. Rev. at 193), and the Dick Act of 1903, 32 
Stat. 775, which “provided for an Organized Militia, to be 
known as the National Guard, which should conform to the 
Regular Army organization, be equipped through federal funds, 
and be trained by Regular Army instructors” (54 Harv. L. Rev. 
at 195).



8

cers if members of the Guard units and their officers 
met federally-prescribed standards. See, e.g., 53 Cong. 
Bee. 4356.

The 1916 Act contemplated that the Rational Guard 
would be both a state militia under the command 
and direction of the state except when called into fed­
eral service, and a reserve component of the national 
armed forces which, when ordered into active federal 
service, would constitute an integral part of the na­
tion’s regular military force. The Act made it clear 
that the states are to retain command and operational 
control over the Rational Guard when it is not in ac­
tive federal service, and that the state retains its tradi­
tional power to use its militia “ within the jurisdiction 
concerned, as its chief executive * * * considers nec­
essary * * 32 TT.S.C. 109(c).

Despite the large measure of autonomy which Con­
gress gave the states, the Act provided that Guard 
units could qualify for federal financial support only 
if they maintained “federal recognition” by partici­
pating in federally-prescribed drills and training and 
by passing inspections designed to assure that their 
members, organizations, training, instruction and 
property meet prescribed federal standards. 32 U.S.C. 
105, 108, 502. The Act empowered the President to 
“prescribe regulations, and issue orders, necessary to 
organize, discipline, and govern the Rational Guard.” 
32 U.S.C. 110.

The laws of Ohio illustrate the dual function which 
the Rational Guard performs. The state recognizes 
that its militia is an integral part of the nation’s



9

overall military program; state law provides that 
“ [t]lie military laws of this state shall conform to all 
laws and regulations of the United States affecting 
the same subject and anything to the contrary shall 
be void so long as the subject matter has been acted on 
by the United States.” Ohio Revised Code, § 5923.28 
(1971 Supp.). On the other hand, the state also pro­
vides that the militia is to exercise its traditional role 
as a residual state police force which can be used in 
times of emergency or exceptional stress to aid in quell­
ing civil disturbances. State law provides that “ [t]he 
organized militia may be ordered by the governor to 
aid the civil authorities to suppress or prevent riot 
or insurrection * * Ohio Revised Code, § 5923.21. 
See, also, Ohio Revised Code, §§ 5923.22, 5923.1 (1971 
Supp.).
B. T H E  HOLE OF T H E  FEDERAL GOVERNMENT IN  T R A IN IN G  T H E  ARMY

NATION AL GUARD

Article I, Section 8, cl. 16 of the Constitution gives 
Congress the power to provide for “organizing, arm­
ing, and disciplining, the Militia” and reserves to the 
states “the Authority of training the militia according 
to the discipline prescribed by Congress.” The con­
gressional prescription of a uniform training regimen, 
or discipline, ensures that—should the need arise—the 
militia can be effectively integrated into the regular 
Army. But while the Constitution contemplates that 
the federal government will prescribe the training pro­
gram, the state, as long as the Guard has not been 
federalized, actually administers the training.



10

In prescribing the training of the national Guard, 
the Army naturally is primarily concerned with insur­
ing that the Guard is qualified to serve as part of the 
Army if called to active federal duty. But the Army 
has also promulgated detailed instructions for civil 
disturbance control training.2 This training program 
is for national Guardsmen as well as members of the 
regular Army.

Members of the Army national Guard receive train­
ing at three stages of their enlistment—an initial tour 
of active duty in the Army; throughout their period 
of service in their national Guard units; and at sum­
mer encampments.

Initially, a person without prior military service 
who enlists in the national Guard must serve on ac­
tive duty with the regular Army for a minimum of 
four months. 10 XT.S.C. 511(d). During this period, the 
guardsman receives his Basic Combat Training 
(“BCT”) and Advanced Individual Training 
(“AIT”), both of which are taken with regular Army 
recruits. The guardsman’s training at this stage of his 
enlistment is governed by regular Army regulations 
and administered by regular Army personnel.

Prior to 1971, this initial training was the same for 
both regular Army and National Guard recruits. In 
that year, however, the Army began to give National 
Guard recruits 16 hours of additional special civil dis­
turbance control training. This special training was 
initiated in recognition of the fact that Guard units

2 See Army Subject Schedule 19-6, “Control of Civil Dis­
turbances,” dated August 9, 1972, a copy of which has been 
lodged with the Court.



11

are more likely to be called to suppress civil disturb­
ances than are regular Army units.3

Individuals with prior military service may enter 
the National Guard without undergoing the active 
duty required of enlistees without prior service. 10 
U.S.C. 510(b)(2). If  such persons completed their 
regular service without having received civil dis­
turbance training, Army regulations require that they 
receive eight hours of individual civil disturbance 
training before they participate in the National 
Guard’s own training program.4

Most of the training a guardsman receives after his 
integration into a National Guard unit is conducted 
by Guard personnel. While each unit of the National 
Guard must assemble for drill and instruction at least 
48 times a year (32 U.S.C. 502(a)(1)) and may not 
receive credit for a drill unless “the training is of 
the type prescribed by the Secretary concerned” (32 
U.S.C. 502(d) (3)), the basic decisions with respect to 
allocation of training times are made by the State 
Adjutants General. Thus, for example, the Army 
requires that whenever a National Guard unit is 
assigned a new civil disturbance mission, it must use 
the earliest available weekend drills to conduct civil 
disturbance training; similarly, all units wdth civil 
disturbance missions are required to conduct annual

3 See paragraph 3c, Appendix XXY, Aux F to “deserve En­
listment Program of 1963,” a copy of which has been lodged in the 
Court.

4 Paragraph 4a, Appendix XV, Aux F  to “Training in Civil 
Disturbance Control Operations,” a copy of which has been lodged 
in the Court.



12

civil disturbance refresher training. In both eases, the 
training must follow federal standards. The com­
mander of the unit, however, is given discretion, with­
in certain limits, to vary the hours devoted to any 
particular subject (e.g., riot control formations).5

Finally, guardsmen receive training during the sum­
mer encampments which all Guard units must par­
ticipate in for at least 15 days each year. 32 U.S.C. 
502(a)(2). Since the annual summer camp training 
is devoted primarily to maintaining the Guard’s com­
bat readiness for its national defense role, civil dis­
turbance training is not conducted at such times unless 
specifically authorized by the Continental Army 
Command.6

C. EXILES PER TA IN IN G  TO T H E  USE OE FORCE

Closely related to the civil disturbance control train­
ing which guardsmen receive are the “use of force” 
rules to which they are subject when in an operational 
or mobilized status. When the Guard is involved in 
civil disturbance control while in federal status, the 
Army’s use-of-force rules govern. More frequently, 
the Guard is in state status when it is called on to 
perform eivil disturbance control duties. In such cir­
cumstances it is subject to the state’s use-of-force 
regulations. While the National Guards of all states, 
including Ohio, have now voluntarily adopted the fed­
eral standards as their own, the Ohio rules at the time

5 See, e.g., paragraphs 2a(2), 3a and 3b, Appendix XV Affix F' 
to “Training in Civil Disturbance Control Operations,” note 4, 
supra.

6 See paragraph 3c, Appendix XV Anx F to “Training in Civil 
Disturbance Control Operations,” note 4, supra.



13

of the Kent State incident (i.e., May 1970) were sub­
stantially different from the federal rules and quite 
different from what they are today.

1. Army Use-of-Force Rules

Since March 1968, Army rules have strictly limited 
the use of force in civil disturbance control operations 
to the minimum necessary to accomplish the mission.7 
The current rules, which are set forth in-Appendix 
A, infra, pp. 29-40, provide detailed limitations on 
the use of deadly force. Such force is authorized only 
where (App. A, infra, p. 31) :

(1) Lesser means have been exhausted or are 
unavailable; and

(2) The risk of death or serious bodily harm 
to innocent persons is not significantly increased 
by its use; and

(3) The purpose of its use is one or more of 
the following:

(a) Self-defense to avoid death or serious 
bodily harm * * *;

(b) Prevention of a crime which involves a 
substantial risk of death or serious bodily harm 
(for example, setting fire to an inhabited dwell­
ing or sniping), including the defense of other 
persons;

(c) Prevention of the destruction of public 
utilities or similar property vital to public 
health or safety; or

(d) Detention or prevention of the escape 
of persons who have committed or attempted

7 See Field Manual 19-15, “Civil Disturbances and Disasters,” 
dated March 25, 1968, a copy of which has been lodged in the 
Court.

497-1S5— 73------ 3



14

to commit one of the serious offenses referred 
to in (a), (b), and (c) above.

The rules further provide with respect to the use 
of live ammunition (App. A, infra, pp. 32-33) :

Task force commanders are authorized to 
have live ammunition issued to personnel under 
their command. Individual soldiers will be in­
structed, however, that they may not load their 
weapons * * * except when authorized by an 
officer or, provided they are not under the di­
rect control and supervision of an officer, when 
the circumstances would justify their use of 
deadly force * * *. Retention of control by an 
officer over the loading of weapons until such 
time as the need for such action is clearly 
established is of critical importance in pre­
venting the unjustified use of deadly force. 
Whenever possible, command and control ar­
rangements should be specifically designed to 
facilitate such careful control of deadly 
weapons.

The rules also provide several other safeguards re­
lating to the use of force and the control of crowds. 
See generally App. A, infra, pp. 29-40.

2. Ohio Use-of-Force Buies

The use-of-force rules of the Ohio Rational Guard 
that were in effect during May 1970 differed substan­
tially from those of the Army. See App. B, infra, pp. 
41-45. The Ohio rules did state that only the mini­
mum force necessary should be used. However, they 
further provided (App. B, infra, p. 44) that “ [i]n any 
instance where human life is endangered by the fore-



15

ible, violent actions of a rioter, or when rioters to 
whom the Riot Act has been read cannot be dispersed 
by any other reasonable means, then shooting is justi­
fied” (emphasis added). Furthermore, contrary to 
the Army rules, the Ohio directive specified that 
guardsmen were to carry loaded rifles. See App. B, 
infra, p. 43.

In December 1970, following the shootings at Kent 
State, the Ohio National Guard issued a new opera­
tions plan which adopted the Army use-of-force rules 
verbatim.8

II. RESPONDENTS' CLAIM— THAT THE TRAINING, WEAPONS, 
AND ORDERS OF THE OHIO NATIONAL GUARD DEPRIVE OR 
THREATEN TO DEPRIVE THEM OF CONSTITUTIONAL 
RIGHTS— IS NOT JUSTICIABLE

Respondents seek a judicial inquiry into and a ju­
dicial determination of the adequacy of the current 
training practices and policies of the Ohio National 
Guard. For reasons which are discussed below (see 
pp. 20-28, infra), we believe that respondents do not 
have standing to litigate those issues. But we further 
believe that the kind of judicial involvement in and 
supervision of military affairs which respondents’ 
complaint would require is beyond the proper sphere 
of judicial action.

8 See Appendix 2 to Annex C to Oplan Act, a copy of'which 
has been lodged in the Court. By directive dated June 28, 1972, 
a copy of which has also been lodged in the Court, the Ohio Ad­
jutant General in effect incorporated all the amendments made 
to the Army rules up to that date and added further protective 
rules.



16

The court below construed respondents’ complaint 
as alleging that the training, weapons, and orders of 
the Ohio National Guard “make inevitable the use of 
[unnecessary] fatal force in suppressing civilian dis­
orders * * *” (italics omitted; Pet. App. 18). The court 
assumed that appropriate injunctive relief could be 
fashioned if respondents’ claims were upheld. But the 
fashioning of any injunctive relief would require the 
district court itself to determine the training, weapons, 
and orders appropriate for civil disturbance control. 
This is not the kind of determination that courts are 
equipped to make or are expected to make under our 
system of allocation of governmental powers; it is a 
matter which requires the technical skills and infor­
mation that the military authorities possess, and which 
they alone are qualified to decide.

The extent of judicial intervention in military af­
fairs which would be likely to result if this suit could 
be maintained is illustrated by the relief which re­
spondents request—that future use of the Ohio Na­
tional Guard for the control of civil disturbances on 
the Kent State campus be enjoined until the Guard 
has been “ competently trained in techniques of civil­
ian disorder control, * * * provided with the best 
available non-lethal equipment for use in civilian dis­
order control, * * * instructed not to use deadly force 
except in the case of actual self-defense or upon per­
sons who have actually used or threatened the use of 
deadly force and * * * ordered not to carry live ammuni­
tion loaded in their guns when engaged in such control of 
civilian disorders * * *” (App. 11). Respondents thus



17

seek, and the court of appeals apparently has author­
ized, “ a 'broad-scale investigation, conducted by [re­
spondents] as private parties armed with the subpoena 
power of a federal district court and the power of 
cross-examination, to probe into the [National Guard’s 
civil disturbance control techniques] * * * with the dis­
trict court determining at the conclusion of that investi­
gation the extent to which those [techniques] may or 
may not be appropriate * * Laird v. Tatum, 408 
U.S. 1, 14. Such judicial control of the National 
Guard’s training, weapons and orders constitutes a 
“forbidden judicial intrusion into the administrative 
domain. ” Arrow Transportation Go. v. Southern R. Co., 
372 U.S. 658,670.

Furthermore, the broad-scale investigation required 
by respondents’ complaint, as construed by the court 
of appeals, lacks the specificity required for adjudica­
tion. Respondents challenge not merely particular 
rules or activities but the general propriety of the 
Guard’s training, weapons, and orders with respect to 
civil disorders. Justiciability requires “that clear con­
creteness provided when a question emerges precisely 
framed and necessary for decision * * United 
States v. Fruehauf, 365 U.S. 146, 157. Respondents, 
however, seek the kind of comprehensive review ap­
propriate to a legislative committee; this is a task for 
which the judiciary is ill-suited. The courts should not 
be asked to function “as virtually continuing moni­
tors of the wisdom and soundness of Executive ac­
tion * * Laird v. Tatum, supra, 408 U.S. at 15.



18

These considerations concerning the proper alloca­
tion of judicial and executive responsibilities are 
especially telling in the instant case. The inquiries 
in which respondents would involve the judiciary— 
such as whether the Ohio Guard has been “compe­
tently trained in techniques of civilian disorder con­
trol” and “provided with the best available nonlethal 
equipment for use in civilian disorder control”—call 
for the kind of specialized knowledge and skills that 
the judiciary does not possess. For example, what 
standards is the district court to apply in determin­
ing whether members of the Ohio National Guard 
have been “competently trained?” Is the court to 
attempt to evaluate the adequacy of the instruction, 
the caliber of the instructors, and the sufficiency of 
the examination and evaluation made upon completion 
of the training? Presumably the military authorities 
have selected what they consider “the best available” 
equipment for use in civilian disorder control; is the 
district court to make its own independent evaluation, 
on the basis of possibly conflicting expert testimony, 
whether there are other kinds or brands of equipment 
that would be better? Is the district court’s role in 
this inquiry to be the traditional one of reviewing the 
propriety of administrative action—to determine 
whether it is arbitrary and capricious—or is the court 
expected to decide these questions de novo, as if it 
were the military authorities prescribing the Guard 
training? Either standard of inquiry would be inap­
propriate ; the determination of the proper way in 
which to prepare members of the National Guard



19

for the performance of their military duties must be 
made by the military. Cf. McAbee v. Martinez, 291 F. 
Supp. 77 (D. Md.). As this Court noted in Orloff v. 
Willoughby, 345 U.S. 83, 93-94:

* * * [JJudges are not given the task of run­
ning the Army. * * * Orderly government re­
quires that the judiciary be as scrupulous not 
to interfere with legitimate Army matters as 
the Army must be scrupulous not to intervene 
in judicial matters.

Moreover, respondents seek not only judicial con­
trol of the training of the National Guard, but also 
judicial prescription of the precise way in which the 
Guard should operate when dealing with civilian dis­
orders. Thus, respondents seek an injunction prohibit­
ing the Guard from using “ deadly force except in 
the case of actual self-defense or upon persons who 
have actually threatened the use of deadly force.” 
That kind of an injunction, however, would be singu­
larly inappropriate as a device for controlling the 
operations of the National Guard, and could result 
in the very kind of bloodshed and loss of life that 
the respondents apparently are seeking to prevent.

The determination whether to use force, in what 
circumstances and in what amount, can be made only 
in the light of the actual civilian disturbance as it 
exists, and not in advance in a theoretical context. 
The decisions with respect to the appropriate tech­
niques to be employed to control civil disturbances 
must be made on the spot, in the light of the actual 
situation facing the troops, and with the benefit of the 
accumulated experience in dealing with this sensitive



20

problem that only the military authorities, and not 
the courts, can possibly possess.

The use of an injunction to control this aspect of 
the National Guard’s activities would be particularly 
ill-advised. Commanders at the scene of a civil dis­
order might be reluctant to use their best military 
judgment with respect to what is the most suitable 
method of dealing with the situation if there was 
lurking in the background the possibility that a court 
subsequently would conclude that their actions went 
beyond what the injunction permits and therefore 
constituted contempt. The military authorities can­
not properly perform their duties within the con­
straint of a judicial order telling them how to op­
erate—-an order necessarily made without knowledge 
of the specific facts with which the military will be 
confronted when they are called on to act. For the 
Guard to carry out its responsibility for maintaining 
civil order, it must retain operational flexibility. The 
occasions when plans to deal with civil disturbances 
must be put into effect are always full of stress and 
unpredictability. The authority to improvise or re­
formulate plans as necessity requires is essential in 
such circumstances. Judicially imposed limitations 
would seriously interfere with the Guard’s ability to 
control disorders.

III. RESPONDENTS HAVE NO STANDING TO M AINTAIN THIS
SHIT

In order to have standing to challenge the pro­
priety of current National Guard practices and



21

policies, respondents must demonstrate “a personal 
stake in the outcome of the controversy.” Baker v. 
Carr, 369 U.S. 186, 204-.9 There must be “a logical 
nexus between the status asserted and the claim 
sought to be adjudicated * * *” (Blast v. Cohen, 392 
U.S. 83, 102), which can be established only by a show­
ing of “specific present objective harm or a threat of 
specific future harm.” Laird v. Tatum, 408 U.S. 1, 14. 
See, also, Linda B, S. v. Bichard 1)., Ido. 71-6078, 
decided March 5, 1973; Moose Lodge No. 107 v. Irvis, 
407 U.S. 163, 166-167; Sierra Glut) v. Morton, 405 
U.S. 727, 731-732.

Respondents attempt to meet this requirement of “a 
personal stake” by alleging that as a consequence of 
the Guard’s activities at Kent State during May 
1970, they are presently intimidated from exercising 
their “rights of lawful assembly, speech and associa­
tion” (Br. 3) and are threatened with future “dep­
rivations of life and liberty without due process of 
law” (ibid.). But as we shall show, these putative 
injuries are remote and hypothetical; “on this record 
the respondents have not presented a case for resolu­
tion by the courts.” Laird v. Tatum, supra, 408 U.S. at 
15.

9 This requirement of “a personal stake” is not simply im­
posed as a device for exercising judicial restraint. The juris­
diction of Article I I I  courts rests upon the existence of a 
genuine case or controversy, and standing is necessary to ensure 
“that concrete adverseness” (Baker v. Carr, supra, 369 U.S. at 
204) which is the prerequisite of a case or controversy in the 
constitutional sense. See Linda, R. S. v. Richard D., No. 71-6078,. 
decided March 5,1973 (slip op., p. 3).

497- 185— 73- 4



22

A. RESPONDENTS HAVE NOT ID EN T IFIED  A SU F F IC IE N T  THREAT OF

SPEC IFIC FU TU RE H A R M  TO JU S T IF Y  IN V O K IN G  T H E  JU D IC IA L 
PROCESS

Respondents claim (Br. 22-26) that the “rules, pro­
cedures and operating methods followed by the Ohio 
National Guard” (Br. 2) subject them to a continuing 
threat of future deprivations of their constitutional 
rights. But their claim of future harm is wholly specu­
lative. Respondents base their claim upon the single 
incident at Kent State in May 1970, and ignore the 
substantial revisions that have since been made in 
Guard policy which eliminate much of the source of 
their concern.

1. The single incident at Kent State in May 1970 does 
not pose a sufficient threat of repetition to warrant 
judicial intervention.

Whether respondents have standing to maintain this 
suit depends, in the first instance, not upon the ser­
iousness but upon the likelihood of the asserted pros­
pective injury. I t  is the imminence and probability of 
harm that provides the concreteness necessary to estab­
lish a case or controversy appropriate for judicial 
resolution. Of. Poe v. Ullman, 367 U.S. 497. A litigant 
has no standing to complain about threatened injury 
that is remote or speculative. See Ex parte Levitt, 302 
U.S. 633, 634.

We are not unmindful of those decisions cited by 
respondents which have indicated, following this 
Court’s opinion in Hague v. G.I.O., 307 U.S. 496, 
that courts may appropriately provide “ injunctive 
or declaratory relief based on claims that police or



23

other agencies of state or local government were en­
gaging or had engaged in deprivations of constitu­
tionally secured rights” (Br. 17). See, e.g., Lewis v. 
Kugler, 446 F. 2d 1343 (HA. 3) ; Schnett v. City of 
Chicago, 407 F. 2d 1084 (C.A. 7) ; Gomez v. Layton, 
394 F. 2d 764 (C.A. D.C.). However, as the Second Cir­
cuit has pointed out, “ [t]he very statement of [the 
facts] of these eases shows their inapplicability to a 
situation involving a single although grave failure by 
the police to discharge their responsibilities, followed 
by speedy criticism and the taking of corrective 
measures * * Belknap v. Leary, 427 F. 2d 496, 
499 (C.A. 2).10

In Hague itself, city authorities had, over a long 
period of time, directed an active and pervasive pro­
gram of harassment against the plaintiffs, and had

10 Belknap was an action under 42 U.S.C. 1983 to restrain 
New York City police from failing to accord anti-war pro­
testers protection against physical assaults by counter-protesters 
at future demonstrations. Plaintiffs pointed to one previous 
demonstration where authorities were allegedly negligent in 
failing to protect them from such assaults. The court con­
trasted this single dereliction by police, which it concluded was 
an inadequate basis to justify injunctive relief, with the facts 
in cases like 0ottonreader v. Johnson, 252 F. Supp. 492 (M.D. 
Ala.) and Lankford v. Gelston, 364 F. 2d 197 (C.A. 4), upon 
both of which respondents rely. The court noted (427 F. 2d at 
499) that in Cottonreader “the defendants, including the Mayor 
and Chief of Police, over a period of months had themselves 
intimidated and harassed the plaintiffs as well as permitting other 
citizens to intimidate, threaten and assault them,” and that 
Lankford involved “an instance of large scale police violation 
of the Fourth Amendment which * * * ‘on a smaller scale has 
routinely attended efforts to apprehend persons accused of seri­
ous crime’ ” {ibid.) .



24

expressed their intent to continue such activities in­
definitely. In the present ease, on the other hand, there 
is no allegation of a continuing policy and practice of 
interfering with the exercise and enjoyment of con­
stitutional rights. Standing is predicated solely upon 
a single, although momentous, tragic incident. But 
that event, by itself, does not pose a sufficient “ threat 
of specific future harm. ’ ’11

Since respondents’ claim of future injury is wholly 
speculative, even as students at Kent State they have 
no greater standing to challenge the propriety of cur­
rent National Guard training, weapons, and orders 
than do any other residents of Ohio. And mere status 
as a resident does not confer standing to sue. Of. 
Tileston v. Tillman, 318 IT.S. 44.12

2. Respondents have no standing for the further rea­
son that the National Guard practices and policies on 
which their case is based no longer exist

In Belknap v. Leary, supra, the Second Circuit, in 
addition to pointing out that only a single incident of

11 Respondents’ allegation of past injury does not confer 
standing here. This case does not involve an inquiry into the 
adequacy of the training or the propriety of the weapons and 
orders of the National Guard units involved in the shootings at 
Kent State. Cf. Scheuer v. Rhodes, petition for a writ of cer­
tiorari pending, No. 72-914. Respondents instead seek an in­
vestigation into current practices and policies and request 
prospective relief. Past injury is irrelevant to a “personal 
stake” in the granting of prospective relief, in the absence of 
a showing that recurrence of the injury is likely.

12 Respondents do not allege standing as taxpayers, but 
since this case does not involve the spending power such an 
allegation would in any event be unavailing. Flast v. Cohen, 
392 U.S. 83.



25

unlawful police action had been alleged, emphasized 
(427 F. 2d at 499) that corrective measures were taken 
by the city shortly after the incident giving rise to the 
litigation occurred. Similarly, in Laird v. Tatum, 
supra, this Court noted (408 U.S. at 8) that “the 
Army’s review of the needs of its domestic intelligence 
activities has indeed been a continuing one and. * * * 
those activities have since been significantly reduced.” 
Thus in both eases the existence of recently introduced 
corrective measures was a significant factor supporting 
the conclusion that judicial intervention was unwar­
ranted.

In this case, also, there have been significant changes 
in official policies and practices (see pp. 12-15 
supra), and these changes further illustrate the specu­
lative nature of respondents’ allegations of future 
harm. For example, respondents assert (Br. 4):

The conditions alleged to be casually related to 
the deprivations include failure adequately to 
provide Ohio National Guard troops with spe­
cialized civil disorder training or with adequate 
equipment to respond to civilian disorders with 
non-deadly force, causing troops to carry live 
bullets in their guns and failing to properly in­
struct troops as to the legal limits on their use 
of deadly force.

According to respondents (Br. 2-3), because there 
has been “a continuation of the same rules, proce­
dures and operating methods followed by the Ohio 
National Guard, [there is] * * * a substantial threat 
of repetition of similar acts * * * [in the future].” Re­
spondents, however, ignore the substantial changes



26

that have been made in the policies and practices that 
they condemn.

As indicated above (p. 10, supra), mandatory “spe­
cialized civil disorder training” has since 1971 been 
required for all new National Guard enlistees; the 
training is given by regular Army personnel while 
the guardsman is serving his initial tour of active 
duty. This training includes separate instruction in 
such subjects as “stress training,” “campus and open 
area operation,” “riot control agents and munitions,” 
and “individual responsibilities and standards of con­
duct.” 13 After his initial training, the guardsman re­
ceives regular refresher courses in civilian disorder 
training. See pp. 11-12, supra.

Respondents have stressed the Ohio National 
Guard’s policies with respect to the use of force. But 
this is the area where the most dramatic changes in 
state policy have occurred. At the time of the Kent 
State shootings, the Ohio National Guard’s operations 
plan provided that “when rioters to whom the Riot 
Act has been read cannot be dispersed by any other rea­
sonable means, then shooting is justified,” and that dur­
ing riot control duty “ [rjifles will be carried with a 
round in the chamber in a safe position.” See p. 15, 
supra. Neither of these directives is in effect today. As 
we have shown (p. 15, supra), Ohio has adopted ver­
batim the regular Army’s use-of-force rules, which 
prohibit the carrying of loaded weapons and carefully 
delineate and restrict the situations where use of dead­
ly force may be employed.

13 See Army Subject Schedule 19-6, note 2, supra.



27

In view of these changes in state practice and policy, 
there is no basis for any substantial claim that the 
conditions that gave rise to the Kent State shootings 
are likely to be repeated. For this reason respondents’ 
claim lacks the adverseness and immediacy that is 
necessary before courts may properly act.
B . r e s p o n d e n t s ’ SUGGESTION o r  a  “ c h i l l i n g ”  e f f e c t  o n  t h e ir

FIR ST A M EN D M EN T RIGHTS IS IN SU BSTA N TIA L

Respondents suggest that they are presently suffer­
ing injury because the practices and policies of the 
Ohio National Guard intimidate them in the exercise 
of their First Amendment rights.14 This ‘‘chilling 
effect argument typically is made where, as in Laird 
v. Tatum, supra, the executive activity allegedly giving 
rise to the putative chill is ongoing and not merely 
potential. Here, of course, there is no ongoing event 
or program which respondents will inevitably con­
front; they allege merely that such an event {i.e., the 
recalling of the National Guard to the Kent State 
campus) may occur at some unspecified time in the 
future. Thus any “chilling” effect stems only from 
present fears of uncertain harm at some indefinite time 
in the future. Since, as we have shown, respondents can­
not show a threat of specific future harm here, a fortiori 
any claim of present First Amendment deprivation must 
fall as well.

This case has strong overtones because it arises out 
of a great national tragedy. I t involves, however, an 
area which is particularly inappropriate for judicial

14 While respondents do not here expressly assert a “chilling” 
effect, that claim appears to be implicit in their contentions 
when viewed as a whole. See, e.g., App. 6; Br. 2-3.



28

supervision and control: the operations of the mili­
tary. I t is our position that courts should not inter­
vene in this sensitive area unless the plaintiffs have 
clearly shown that they are likely to undergo specific 
injury from the practices they challenge. Cf Laird v. 
Tatum, supra. The respondents have not made such a 
showing.

CONCLUSION

For the foregoing reasons, the judgment of the court 
of appeals should be reversed, with directions that the 
complaint be dismissed.

Respectfully submitted.
E rwin R . Griswold,

Solicitor General, 
H arlington W ood, Jr., 
Assistant Attorney General. 
R obert E . K opp,
J oseph B . S cott,

Attorney
R obert W . B erry,

General Counsel.
R . K enly W ebster,

Deputy General Counsel.
W illiam  C. W ooldridge,
J ames S. Carey,

Attorneys,
Department of the Army.

M arch 1973.



APPENDIX A

Paragraphs 4-11, 4—12, and 5-9 of Army Field 
Manual 19-15, “ Civil Disturbances,” dated March 22, 
1972, provide:
4-11. General.

a. Operations by Federal forces will not be author­
ized until the President is advised by the highest offi­
cials of the State that the situation cannot be con­
trolled with the non-Federal resources available. The 
task force commander’s mission is to help restore law 
and order and to help maintain it until such time as 
State and local forces can control the situation with­
out Federal assistance. In performing this mission, the 
task force commander may find it necessary to partici­
pate actively not only in quelling the disturbance but 
also in helping to detain those responsible for it. Task 
force commanders are authorized and directed to pro­
vide such active participation, subject to the restraints 
on the use of force set forth herein.

1). The primary rule which governs the actions of 
Federal forces in assisting State and local authorities 
to restore law and order is that a task force com­
mander must at all. times use only the minimum force 
required to accomplish his mission. This paramount 
principle should control both the selection of appro­
priate operational techniques and tactics and the 
choice of options for arming the troops (para 5-9). 
Pursuant to this principle, the use of deadly force; 
i.e., live ammunition or any other type of physical 
force likely to cause death or serious bodily harm, is 
authorized only under extreme circumstances where

(m



30

certain specific criteria are met (para 4-126). To em­
phasize limitations on use of firepower and to restrict 
automatic fire, commanders will insure that rifles with 
only a safe or semiautomatic selection capability, or 
rifles modified to have only a safe or semiautomatic 
selection capability, will be used as the basic weapon 
for troops in a civil disturbance area.

c. All personnel, prior to participation in civil dis­
turbance operations, will be briefed as to—

(1) The specific mission of the unit.
(2) Rules governing the application of force as they 

apply to the specific situation.
(3) A psychological orientation on the local situa­

tion, specifically addressing types of abuse which mili­
tary personnel may be expected to receive and the 
proper response to these types of abuse.
4-12. Use of Noncleadly and Deadly Force.

a. Task force commanders are authorized to use 
nondeadly force to control the disturbance, to prevent 
crimes, and to apprehend or detain persons who have 
committed crimes; but the degree of force used must 
be no greater than that reasonably necessary under 
the circumstances. The use of deadly force, however, 
in effect invokes the power of summary execution 
and can therefore be justified only by extreme neces­
sity. Accordingly, its use is not authorized for the 
purpose of preventing activities which do not pose a 
significant risk of death or serious bodily harm (e.g., 
curfew violations or looting). I f  a mission cannot 
be accomplished 'without the use of deadly force, but 
deadly force is not permitted under the guidelines 
authorizing its use, accomplishment of the mission 
must be delayed until sufficient nondeadly force can 
be brought to bear. The commander should report 
the situation and seek instructions from higher au­



31

thority. All the requirements of b, below, must be 
met in every case in which deadly force is employed.

b. The use of deadly force is authorized only where 
all three of the following circumstances are present:

(1) Lesser means have been exhausted or are un­
available; and

(2) The risk of death or serious bodily harm to 
innocent persons is not significantly increased by its 
use; and

(3) The purpose of its use is one or more of the 
following:

(a) Self-defense to avoid death or serious bodily 
harm (c, below);

(&) Prevention of a crime which involves a sub­
stantial risk of death or serious bodily harm (for ex­
ample, setting fire to an inhabited dwelling or snip­
ing) , including the defense of other persons;

(c) Prevention of the destruction of public utilities 
or similar property vital to public health or safety; or

(d) Detention or prevention of the escape of per­
sons who have committed or attempted to commit 
one of the serious offenses referred to in (a), (b), 
and (c) above.

c. Every soldier has the right under the law to 
use reasonably necessary force to defend himself 
against violent and dangerous personal attack. The 
limitations described in this paragraph are not in­
tended to infringe this right but to prevent the unau­
thorized or indiscriminate firing of weapons and 
the unauthorized or indiscriminate use of other types 
of deadly force.

d. In addition, the following policies regarding the 
use of deadly force will be observed:

(1) When firing ammunition, the marksman should, 
if possible, aim to wound rather than to kill.



32

(2) When possible, the use of deadly force should 
be preceded by a clear warning to the individual or 
group that use of such force is contemplated or immi­
nent.

(3) Warning shots are not to be employed. Such 
firing constitutes a hazard to innocent persons and 
can create the mistaken impression on the part of citi­
zens or fellow law enforcement personnel that sniping 
is widespread.

(4) Even when its use is authorized pursuant to 
Ik  above, deadly force must be employed only with 
great selectivity and precision against the particular 
threat which justifies its use. For example, the receipt 
of sniper fire—however deadly—from an unknown 
location can never justify “returning the fire” against 
any or all persons who may be visible on the street 
or in nearby buildings. Such an indiscriminate re­
sponse is far too likely to result in casualties among 
innocent bystanders or fellow law enforcement per­
sonnel; the appropriate response is to take cover and 
attempt to locate the source of the fire so that the 
threat can be neutralized in accordance with e, below.

e. Task force commanders are authorized to have 
live ammunition issued to personnel under their com­
mand. Individual soldiers will be instructed, however, 
that they may not load their weapons (place a round 
in the chamber) except when authorized by an officer 
or, provided they are not under the direct control and 
supervision of an officer, when the circumstances 
would justify their use of deadly force pursuant to b, 
above. Retention of control by an officer over the load­
ing of weapons until such time as the need for such 
action is clearly established is of critical importance in 
preventing the unjustified use of deadly force. When­
ever possible, command and control arrangements



33

should be specifically designed to facilitate such care­
ful control of deadly weapons.

/. The presence of loaded weapons in tense situa­
tions may invite the application of deadly force in re­
sponse to provocations which while subject to censure, 
are not sufficient to justify its use; and it increases the 
hazard that the improper discharge of a weapon by 
one or more individuals will lead others to a reflex 
response on the mistaken assumption that an order to 
fire has been given. Officers should be clearly in­
structed, therefore, that they have a personal obliga­
tion to withhold permission for loading until circum­
stances indicate a high probability that deadly force 
will be imminently necessary and justified pursuant to 
the criteria set forth in b, above. Strong command 
supervision must be exercised to assure that the load­
ing of weapons is not authorized in a routine, prema­
ture, or blanket manner.

g. Task force commanders should at all times exer­
cise positive control over the use of weapons. The in­
dividual soldier will be instructed that he may not 
fire his weapon except when authorized by an officer, 
or provided he is not under the direct control and 
supervision of an officer, when the circumstances, 
would justify his use of deadly force pursuant to b, 
above. He must not only be thoroughly acquainted 
with the prerequisites for the use of deadly force, 
therefore, but he must also realize that whenever his 
unit is operating under the immediate command and 
control of an officer, that commander will determine 
whether the firing of live ammunition is necessary.

h. Task force commanders may at their discretion 
delegate the authority to authorize the use of deadly 
force, provided that such delegation is not inconsistent 
with this paragraph and that the person to whom such

497—1Su— 73------- 2



34

delegation is made understands the constraints upon 
the use of deadly force set forth in b, above.

* * * * *
5-9. Techniques for Crowd Control.

There are numerous techniques designed to provide 
the commander with flexibility of action in accom­
plishing crowd control. He must select a combination 
of techniques which will produce the desired results 
within the framework of the selected crowd control 
option. The most common techniques appropriate for 
military usage are discussed below:

a. Observation. This consists of the deployment of 
individuals or teams to the periphery of a crowd for 
the purpose of monitoring its activity. I t  includes 
gathering information on crowd size, location, mood, 
and reporting on the developing situation. This tech­
nique includes posting individuals on strategic roof­
tops and other high terrain overlooking the crowd. 
This latter measure provides additional security to con­
trol force personnel should they be committed to other 
crowd control operations. Such a team may be com­
posed of an expert marksman, a radio operator, and 
an observer equipped with binoculars. Care must be 
taken to assure that committed control forces are 
aware of the locations of such teams to preclude their 
being mistaken for sniper elements.

b. Communication of Interest and Intent. In certain 
situations effective communication with crowd and 
mob leaders and participants may enable the com­
mander to control the situation without resort to more 
severe actions. When planned and organized demon­
strations, marches or rallies within the disturbed area 
are announced, the control force commander in co­
ordination with local authorities should meet with 
organizers of the activity in order to communicate the



35

interest of the control forces. The following matters, 
as appropriate, should be discussed:

(1) Parade or demonstration permits.
(2) Location of demonstration and routes of march.
(3) Time limits for the activity.
(4) Provision of marshals by activity organizers.
(5) Prevention of violence.
(6) Safety of all concerned.
The task force commander and local authorities 

should also communicate to the activity organizers 
their intent to cope with violence, unlawful actions 
and violations of restrictions imposed on the activity. 
I t  is intended that, by this communication between 
activity organizers and control force personnel, the 
demonstration, rally or parade will occur without in­
cident through the mutual cooperation of all con­
cerned. The intentions of control forces will not be 
effective if delivered as an ultimatum. A limited, be­
grudging dialogue with activity organizers reduces the 
opportunity for authorities to learn the plans of the 
demonstrators. I t must be remembered that, if this 
communication is not effected, the activity organizers 
might well hold the demonstration in defiance of local 
authorities, thereby creating a potential for violence 
that might not have existed if this technique had been 
employed.

c. Selection of Force Options.
(1) The commitment of Federal military forces 

must be viewed as a drastic last resort. Their role, 
therefore, should never be greater than is absolutely 
necessary under the particular circumstances which 
prevail. This does not mean, however, that the number 
of troops employed should be minimized. To the con­
trary, the degree of force required to control a dis­
turbance is frequently inversely proportionate to the 
number of available personnel. Doubts concerning the



36

number of troops required, therefore, should normally 
be resolved in favor of large numbers since the pres­
ence of such large numbers may prevent the develop­
ment of situations in which the use of deadly force is 
necessary. A large reserve of troops should be main­
tained during civil disturbance operations. The knowl­
edge that a large reserve force is available builds mo­
rale among military and law enforcement personnel and 
contributes toward preventing overreaction to pro­
vocative acts by disorderly persons.

(2) In  selecting an operational approach to a civil 
disturbance situation, the commander and his staff 
must adhere scrupulously to the “minimum necessary 
force” principle ; for example, riot control formations 
or riot control agents should not be used if saturation 
of the area with manpower would suffice.

(3) Every effort should be made to avoid appearing 
as an alien invading force and to present the image 
of a restrained and well-disciplined force whose sole 
purpose is to assist in restoration of law and order 
with a minimum loss of life and property and due 
respect for those citizens whose involvement may be 
purely accidental. Further, while riot control person­
nel should be visible, tactics or force concentrations 
which might tend to excite rather than to calm should 
l)e avoided where possible.

(4) The measures described in (a) through (g), 
below, may be applied in any order as deemed ap­
propriate by the responsible commander so long as 
their application is consonant with paragraph 4-12, 
and otherwise in keeping with the situation as it exists.

(a) Proclamation. A public proclamation is con­
sidered an excellent medium to make known to a crowd 
the intentions of the control force commander. In 
some instances, such a proclamation makes further 
action unnecessary. A proclamation puts the popula­



37

tion on. notice that the situation demands extraordi­
nary military measures, prepares the people to accept 
military presence, tends to inspire respect from law­
less elements and supports law-abiding elements, gives 
psychological aid to the military forces attempting to 
restore order, and indicates to all concerned the 
gravity with which the situation is viewed.

(&) Show of force. A show of force is effective in 
various situations in civil disturbance control opera­
tions. When a crowd has assembled in an area, march­
ing a well-equipped, highly-disciplined control force 
into view may he all the force that is needed to per­
suade them to disperse and retire peaceably to their 
homes. When persons are scattered throughout the 
disturbance area in small groups, a show of force may 
take the form of motor marches of troops throughout 
the area, saturation patrolling, and the manning of 
static posts, or similar measures.

(c) Employment of riot control formations. Riot 
control formations are used to disperse massed mobs 
which do not react to orders of the control force 
instructing them to disperse and retire peaceably to 
their homes. The employment of such formations is 
part of the show of force and has a strong psycho­
logical effect on any crowd. While the use of fixed 
bayonets can add considerably to this effect, the dan­
ger of intentional or accidental injury to nonviolent 
participants or fellow law enforcement personnel 
precludes such use in situations where troops are in 
contact with a nonviolent crowd.

(d) Employment of water. Water from a firehose 
may be effective in moving small groups on a narrow 
front such as a street or in defending a barricade or 
roadblock. Personnel applying water should be pro­
tected by riflemen and in some instances by shields.



38

In tlie use of water, the factors discussed below should 
be considered.

1. Water may be employed as a flat trajectory 
weapon utilizing pressure, or as a high trajectory 
weapon employing water as rainfall. The latter is 
highly effective during cold weather.

2. The use of a large water tank (750 to 1,000 gal­
lons) and a powerful water pump mounted on a truck 
with a high pressure hose and nozzle capable of 
searching and traversing will enable troops to employ 
water as they advance. By having at least two such 
water trucks, one can be held in reserve for use when 
required.

5. In using water, as with other measures of force, 
certain restraints must be applied. Using water on 
innocent bystanders such as women and children 
should be avoided; avenues of escape must be pro­
vided; and the more severe use, flat trajectory appli­
cation, should be used only when necessary.

4. Since the fire departments normally are asso­
ciated with lifesaving practices rather than main­
tenance of law and order, consideration should be 
given to maintaining this image of the fire depart­
ments through the use of other than fire department 
equipment when using water for riot control and 
crowd dispersal.

(e) Employment of riot control agents. Riot con­
trol agents are extremely useful in civil disturbance 
control operations because they offer a humane and 
effective method of reducing resistance and lessen 
the requirements for the application of more severe 
measures of force. Task force commanders are au­
thorized to delegate the authority to use riot control 
agents and other forms of nondeadly force at their 
discretion.



39

(/) Fire by selected marksmen. Fire by selected 
marksmen may be necessary under certain circum­
stances. Marksmen should be preselected and desig­
nated in each squad. Selected marksmen should be 
specifically trained and thoroughly instructed. They 
may be placed on vehicles, in buildings, or elsewhere 
as required.

(g) Full firepower. The most severe measure of 
force that can be applied by troops is that of available 
unit firepower with the intent of producing exten­
sive casualties. This extreme measure would be used 
as a last resort only after all other measures have 
failed or obviously would be impractical, and the 
consequence of failure to completey subdue the riot 
would be imminent overthrow of the government, con­
tinued mass casualties, or similar grievous conditions. 
I t  has never been used by Federal troops in this cen­
tury. See primary rule for use of force and restric­
tion on use of automatic fire in paragraph 4-11&.
. (5) The normal reflex action of the well-trained 
combat soldier to sniper fire is to respond with an 
overwhelming mass of fire power. In a civil dis­
turbance situation, this tactic endangers innocent 
people more than snipers. The preferred tactic is to 
enter the building from which the fire originates. 
Darkening the street in order to gain protection from 
sniper fire is counterproductive. The following gen­
eral approach should be emphasized in dealing with 
snipers:

(a) Surround the building in which the sniper is 
concealed and gain access, using armored vehicles if 
necessary and available.

(&) Illuminate the area during darkness.
(c) Employ agent OS initially, if feasible, rather 

than small arms fire. If CS is not successful, then 
use well-aimed fire by expert marksmen. The number



40

of rounds should be kept to a minimum to reduce the 
hazard to innocent persons.

(6) Consistent with the controlling principle that 
he must use only the minimum force necessary to ac­
complish his mission, the commander may select any 
one of the following options for arming his troops:

Bayonet Ammunition
scabbard Bayonet magazine clip Chamber

A t sling 
A t port. 
At port. 
At port. 
At port.

1 See (4)(c) above.
2 See paragraph 4—12f and g.

Rifles, if capable of automatic fire, must be modified to prevent automatic operation.
Troops may be armed with riot baton in lieu of rifles.

While each of the above options represents an esca­
lation in the level of force, they are not sequential in 
the sense that a commander must initially select the 
first option, or proceed from one to another in any 
particular order. So long as the option selected is 
appropriate considering the existing threat, the mini- 
ramn necessary force principle is not violated.

On belt................ In scabbard_______  In pouch or be lt... Empty.
On belt--------------- In scabbard........ In pouch or be lt... Empty.
On belt--------------- Fixed i ---------------- In pouch or be lt... Empty.
On belt............... Fixed i ---------------- In weapon1 2_ Empty.
On belt--------------- Fixed i ---------------- In weapon2.Round Chambered.



A P P E N D IX  B

As of May 1970, Ohio use-of-force rules, Annex P to 
OPLAN 2, provided:

1. Purpose: To provide commanders with informa­
tion which must be disseminated to National Guard 
troops engaged in civil disturbances immediately prior 
to their employment. The information contained in 
paragraph 4 through 8 of this Annex will be read ver­
batim to troops by an officer of the unit.

2. Situation Briefing: In each instance when Na­
tional Guard troops are to be employed, the com­
mander will advise all troops of the following:

a. General situation.
b. Units to be employed and the command struc­

ture.
c. Passes, badges or other identification means to 

be honored permitting non-military personnel in the 
area.

d. Officers and key NCO’s will maintain a record 
(by journal, log or diary) of orders or directives re­
ceived and issued, resulting actions and any unusual 
incidents. Entries should include time, date and names.

3. Mission: The commander will state the mission of 
the organization and the portion for which his unit is 
responsible or the manner in which the company will 
be employed in carrying out the overall mission.

4. Individual Responsibility: As a member of this 
unit and the Ohio National Guard, you have a most 
serious and demanding individual responsibility. You 
are about to serve on one of the most difficult and un­
pleasant tasks that a soldier may be assigned. lie-

(41)



42

gardless of the actions and taunts of the rioters, you 
must remain the well-disciplined soldier. In short, you 
must look like a soldier, act like a soldier and remain 
fair and impartial under all circumstances.

5. Relationship With Civil Population: Our purpose 
is to restore and preserve peace among fellow citizens 
most of whom are friendly, but who will tolerate mili­
tary control only to the extent necessary as the result 
of this emergency. When you display fairness and im­
partiality, scrupulously protect life and property, and 
exercise soldierly restraint under all conditions, you 
merit the respect and secure the cooperation of the 
civilian population. The temptation to use high handed 
methods may be great, but you must remain calm and 
retain your good judgment in order that you may act 
wisely regardless of personal feelings or beliefs. Do 
not fraternize with civilians or discuss with them at 
any time the circumstances of the military action.

6. Rules of Engagement: In any action that you are 
required to take, use only the minimum force neces­
sary. When the Riot Act has been read within hear­
ing, it is unlawful for any group of three or more 
people to remain unlawfully or riotously assembled 
and you may use necessary and proper means to dis­
perse or apprehend them. Keeping groups from as­
sembling prevents crowds which may become unruly 
and take mob action. Your use of force should be in 
the sequence listed below:

a. Issue a military request to disperse.
(1) Insure that an avenue of dispersal is available.
(2) Allow ample time for them to obey the order.
(3) Remain in area for sufficient time to prevent 

re-assembly.
b. Riot formations—show of force. Instructions in 

6.a, (1) (2) (3) above apply.
c. Simple physical force, if feasible.



43

d. Rifle butt and bayonet: I f  people do not respond 
to request, direction and order, and if simple physical 
force is not feasible, you have the rifle butt and bay­
onet which may be used in that order, using only such 
force as is necessary.

e. Chemicals. If people fail to respond to requests or 
orders, and riot formation and rifle butts or bayonets 
prove ineffective, chemicals (baseball grenades or 
jumping grenades) will be used on order when avail­
able. When large demands for chemicals are required 
a chemical squad will be dispatched to assist you upon 
request.

f. Weapons. When all other means have failed or 
chemicals are not readily available, you are armed 
with the rifle and have been issued live ammunition. 
The following rules apply in the use of firearms:

(1) Rifles will be carried with a round in the cham­
ber in the safe position. Exercise care and be safety 
minded at all times.

(2) Indiscriminate firing of weapons is forbidden. 
Only single aimed shot at confirmed targets will be em­
ployed. Potential targets are:

(a) Sniper—(Determined by his firing upon, or in 
the direction of friendly forces or civilians) will be 
fired upon when clearly observed and it is determined 
that an attempt to apprehend would be hazardous or 
other means of neutralization are impractical.

(b) Arsonist—(Determined by acts of fire-setting of 
inhabited building or structure) will be fired on if 
there is apparent necessity and all other means of 
preventing the crime are first exhausted. That is, the 
arsonist on being ordered to halt during an attempt to 
apprehend, and failure to obey such order, where there 
is no other reasonable alternative, to prevent the 
escape of a felon from the scene of his felony.



44

(c) Other—In any instance where human life is en­
dangered by the forcible, violent actions of a rioter, or 
when rioters to whom the Riot Act has been read can­
not be dispersed by any other reasonable means, then 
shooting is justified.

(3) Pull automatic weapons such as machine guns 
will be employed in riot control operations for their 
psychological effect. Such weapons will not be carried 
with a round in the chamber, but will be in a safe or 
half load position.

(4) When chemicals are employed and/or weapons 
fired, the report form issued to you with your ammu­
nition will be completed and immediately brought to 
the company headquarters or reported by radio or 
telephone to me.

(Phone Nos. Unit Commanders)

g. Looters. Looters will be apprehended by using 
the minimum force necessary. Firing at looters will 
be undertaken only when directed by competent au­
thority (i.e. when properly directed thru the entire 
chain of command).

7. Miscellaneous:
a. You will follow commands and orders of military 

commanders only—never those of civilian or police 
authorities.

b. Individual soldiers will not discuss operations 
with newsmen or others but refer them to an officer 
who will then direct them to the appropriate informa­
tion source.

c. Actual search of persons, vehicles or buildings 
will be conducted by civilian police unless an emer­
gency exists.

d. All law violators who are apprehended will be 
turned over to civil authorities.



45

e. The following items will be particularly stressed 
in all preemployment briefings:

(1) No individual passes will be issued to troops 
during the civil disturbance operation.

(^) Personnel will not be permitted in bars or simi­
lar establishments except in the most strict sense of line 
of duty.

(3) Loaded weapons will not be carried into any 
commercial establishments except when specifically 
committed to the civil disturbance mission.
8, Summary:

a. The Riot Act has been read within hearing in the
City o f ---------------- You are here to restore law and
order. The civilian population will judge you and the 
entire Rational Guard on your appearance and con­
duct. Act as a soldier and you will be obeyed. I f  force 
is necessary, use only that force which is necessary.

b. If  there is absolute or apparent necessity and all 
other means of preventing the crimes of murder (such 
as sniper fire), robbery burglary, rape or arson (fire 
bombing of inhabited building or structure) have been 
exhausted, then life may be taken to prevent these 
forcible and atrocious crimes.

c. When the Riot Act has been read within hearing 
and you are engaged in dispersing or apprehending 
rioters, using necessary and proper means, then you 
are declared by Ohio Statute (RC 3761.15) to be guilt­
less if any of the persons unlawfully or violently as­
sembled is killed, maimed or otherwise injured in con­
sequence of resisting.

d. Use common sense and do only what is necessary 
to do and can be justified afterwards. Obey your 
orders! This is duty in time of public danger, which 
gives courts-martial full active duty punishing au­
thority.

U .S . GOVERNMENT PRINTING OFFICE: 1973