Gilligan v. Morgan Brief Amicus Curiae

This item is featured in:

National Guard Deployed: Safeguarding Democracy or Serving Autocracy?

    B nprm t (Burnt uf tty  Intuit Btattu
October Term, 1972 

No. 71-1553

I n  the

J o h n  J. G illig an , Governor of Ohio, et al.,

Petitioners, 
vs.

Craig M organ, et al.

ON PETITIO N  FOR W RIT OF CERTIORARI TO TH E 
UNITED STATES COURT OF APPEALS FOR T H E  SIX TH  CIRCUIT

BRIEF AMICUS CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.

J ack G reenberg  
J ames M. N abrit, III 
C harles S t e p h e n  R alston 
D rew  S. D ays, III

10 Columbus Circle
New York, New York 10019

Attorneys for the NAACP Legal 
Defense and Educational Fund, Inc.



In the

OInurt nf Stairs
October Term, 1972 

No. 71-1553

J ohn  J . G illig an , Governor of Ohio, et al.,

vs.
Petitioners,

Craig M organ, et al.

ON PETITIO N  FOB W BIT OP CEBTIOBABI TO TH E 
UNITED STATES COURT OP APPEALS FOB TH E SIX TH  CIRCUIT

BRIEF AMICUS CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.

Interest of Amicus*

The NAACP Legal Defense and Educational Fund, Inc., 
is a non-profit corporation, incorporated under the laws 
of the State of New York to assist Negroes to secure their 
constitutional rights through the courts. Its charter de­
clares that its purposes include rendering legal aid gratu­
itously to Negroes suffering injustice by reason of race 
who are unable, on account of poverty, to employ legal 
counsel on their own behalf. The charter was approved

* Letters of consent from counsel for the petitioners and respon­
dents in this case have been filed with the Clerk of Court.



2

by a New York Court, authorizing the organization to 
serve as a legal aid society. The NAACP Legal Defense 
and Educational Fund, Inc. (LDF), is independent of other 
organizations and is supported by contributions from the 
public. For many years its attorneys have represented 
parties in this Court and the lower courts, and it has 
participated as amicus curiae in this Court and other 
courts.

LDF has successfully litigated hundreds of suits attack­
ing discriminatory and illegal practices of state, county and 
municipal authorities affecting the lives and liberties of 
blacks and other minorities. Wth few exceptions, LDF 
challenges have rested upon the irreconcilability of such 
practices—often required by statute—with the spirit and 
intent of the Fourteenth Amendment to the Constitution 
and upon the affirmative remedies afforded by Congress 
under the Civil Eights Statutes, specifically, 42 U.S.C. 
§ 1983.**

Over the years, this Court has often pointed out that 
federal court jurisdiction under § 1983 must be given broad 
scope to carry out the purposes for which it was enacted. 
Here, petitioners seek to curtail drastically the scope of 
that important jurisdictional statute. Since the decision of 
the Court in this litigation may affect the scope of § 1983, 
LDF deems it important to bring to the Court’s attention 
some implications of the issues here presented.

** E.g., Smith v. Allwright, 321 U.S. 649 (1944) (voting discrim­
ination) ; Shelly v. Kraemer, 334 U.S. 1 (1948) (restrictive cove­
nants) ; Brown v. Board of Education, 347 U.S. 483 (1954) (school 
segregation); Carter v. Jury Commission, 396 U.S. 320 (1970) 
(jury exclusion); and Haines v. Kerner, 405 U.8. 519 (1972) 
(prisoners’ rights).



3

Introduction
We respectfully submit that this Court should affirm 

the order of the Court of Appeals for the Sixth Circuit 
remanding this issue to the trial court for a hearing on 
the merits. There a record can be made which will illumi­
nate whether the important jurisdictional statute § 1983 
here at issue applies: petitioners may be found—on the 
facts—to be without liability, at which point the case most 
likely will terminate, eliminating need for decision of the 
§ 1983 question. We believe that such a disposition is ap­
propriate here in view of the substantial constitutional 
question presented by this litigation. The extent to which 
federal court consideration and resolution of this question 
may conflict with limitations imposed by the “political 
question” doctrine or may unduly interfere with certain 
basic state responsibilities are not matters which can prop­
erly be determined on the bare record before the Court 
here.

Argument
At the commencement of this litigation, a federal trial 

court was asked to consider and resolve constitutional is­
sues arising out of the May, 1970 confrontation between 
students and Ohio National Guardsmen at Kent State Uni­
versity. The suit had significance not merely because that 
incident had attracted national and world-wide attention. 
What happened at Kent State was but another in a series 
of tragic episodes involving citizens and armed troops. 
The suit raised issues equally relevant to these other con­
frontations. After the Kent State incident, as well as in 
the aftermath of other similar events, investigations iden­
tified inadequate training and overreaction on the part of 
law enforcement officials in the use of lethal weapons—in 
several cases, National Guardsmen—as bearing significant



4

responsibility for the civilian death and injury which re­
sulted.1

One of the objectives of these investigations has been to 
exhort legislative and executive officials to seek means of 
preventing recurrences of such unfortunate incidents. The 
trial court’s refusal to address itself to the issues this suit 
presented may well have been premised upon the view that 
such matters should be dealt with by other branches of 
government. But we submit, where the issues are properly 
framed, federal courts, too, have authority to adjudicate 
litigable matters arising out of these confrontations.

Here the issue is justiciable and within the jurisdiction 
of the courts of the United States. For, law enforcement 
officials may not inflict summary punishment upon persons 
charged with illegal acts. An accused is entitled to be 
tried, convicted and sentenced by a lawful tribunal, having 
been accorded at each stage all protections encompassed by 
“due process”. Screws v. United, States, 325 U.S. 91 (1941). 
Excessive force by law enforcement officials under normal 
circumstances constitutes “summary punishment” violative 
of the Constitution. Monroe v. Pape, 365 U.S. 365 U.S. 
365 U.S. 167 (1961). Persons aggrieved by actions of law 
enforcement officials may seek injunctive relief against 
future infringement. Hague v. C.I.O., 307 U.S. 496 (1939).

If, as the complaint herein alleges, (1) innocent students 
were killed or injured by Ohio National Guardsmen, (2) 
they were killed as a direct consequence of failure by state

1 President’s National Advisory Commission on Civil Disorders, 
Report, pp. 323-326 (Bantam Ed., 1968) (Disturbances in Detroit, 
Newark and other cities in 1967) ; President’s Commission on 
Campus Unrest, Report, pp. 149-183 (Arno Press Ed., 1970) (Kent 
State and Jackson State in 1970); Nelson and Bass, The Orange­
burg Massacre (1970), pp. 76-98 (South Carolina State in 1968) ; 
and The Washington Post, December 15, 1972, p. 1 (Southern 
University, Baton Rouge in 1972).



5

civil and military authorities to train and arm the guards­
men properly, and (3) that failure is of a continuing nature 
which creates a reasonable likelihood that such conduct will 
be repeated in the future, then constitutional violations 
have occurred and are occurring which demand federal 
court rectification. The fact that the violations occurred 
and are likely to occur again under martial law conditions 
does not mean that they cease to be acts litig’able in fed­
eral court. Martial law cannot suspend constitutional pro­
hibitions against the infliction of summary punishment. 
See Ex Parte Milligan, 71 U.S. 2 (1886).

Where, as here, the complaint raises constitutional 
issues not manifestly insubstantial or frivolous, mere 
invocation of “political question” or “comity” doctrines 
should not close federal court doors to consideration of 
the merits of the controversy. They are not talismanic 
phrases sufficient to “obscure the need for case-by-case 
inquiry” or to preclude the court from, engaging in a 
“delicate exercise in constitutional interpretation”, Baker 
v. Carr, 369 TT.S. 186, 211 (1962) before declining to act.2

IVe hope that this Court will not cut off resort under 
§ 1983 to a federal forum by persons aggrieved by state 
action; we believe that this case surely presents no occa­
sion to do so. That would thwart the intent of Congress 
“to provide at least indirect federal control over the un­
constitutional actions of state officials” which state agencies 
might not exercise “by reason of prejudice, passion, ne­
glect, intolerance or otherwise”. District of Columbia v. 
Carter, 41 U.S.L.W. 4127, 4130 (January 9, 1973). Rather,

E.g., in this case, claimed conflict with the federal executive 
and legislative branches may turn out not to exist, Regulations 
relating to riot control may be adequate, but perhaps were not 
followed by the state defendants. Therefore, federal court resolu­
tion would not interfere with the powers of coordinate branches 
but, instead, vindicate the exercise of such authority.



6

we urge that this Court reaffirm the responsibility of fed­
eral trial courts “to give due respect to a suitor’s choice 
of a federal forum for the hearing and decision of his 
federal constitutional claims.” Zwichler v. Koota, 389' U.S. 
241, 248 (1969).3

CONCLUSION

For the foregoing reasons, the judgment of the Court 
of Appeals for the Sixth Circuit should be affirmed.

Respectfully submitted,

J ack Greenberg  
J ames M. N abrit, III 
Charles S t e p h e n  R alston 
D rew  S. D ays, III

10 Columbus Circle
New York, New York 10019

Attorneys for the NAAGP Legal 
Defense and Educational Fund, Inc.

3 Such a reaffirmation is eminently desirable in view of the recent 
decision by the Court of Appeals for the Sixth Circuit in Krause v. 
Rhodes, No. 71-1623 (6th Cir., Nov. 17, 1972) petition for cert, 
filed sub nom., Scheur v. Rhodes, 72-914 (41 U.S.L.W. 3377, Janu­
ary 9, 1973), for it appears to hold that federal court review of the 
Kent State incident by way of traditional § 1983 damage actions is 
foreclosed as well. That ruling, when read in conjunction with the 
trial court’s decision here, seems to leave truly aggrieved persons 
out of court under § 1983 no matter what relief is being sought.



MEILEN PRESS INC. —  N. Y. C. 219