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Human Rights and Peace Law Docket
1945-1993

Ann Fagan Ginger • Editor
Jim Ginger • Associate Editor

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I. INTERNATIONAL

A. WAR CRIMES TRIALS

PL-184/1.1. U.S. v. Goering 6 FRD 69 (1946); (Trial of Major War Criminals Before Int'l Military Tribunal (IMT), Germany 1947)

1932-45: Defs led Third Reich. 1943: U.S., France, UK, USSR announced they would punish war criminals after Allied victory. 5/8/45: Allies defeated Germany, ending WWII in Europe. 8/7/45: U.S., France, UK, USSR executed London Agreement and Charter setting forth crimes against peace, crimes against humanity, war crimes. 11/14/45: U.S., USSR, UK, France Tribunal indicted 24 Defs pursuant to London Agreement and Charter. Count 1: conspiracy to commit crimes against peace, war crimes, crimes against humanity. Count 2: crimes against peace, including waging wars of aggression in violation of Conventions for Pacific Settlement of Int'l Disputes (1899, 1907); Hague Convention III re Opening of Hostilities (1907); Versailles Treaty (1919); Kellogg-Briand Pact (1928). Count 3: war crimes in violation of int'l conventions, internal penal laws, including murder of civilian population, torture, genocide, deportation of civilian population for slave labor (France-1,408,000; Belgium-190,000; Holland-500,000; USSR-4,978,000), murder of POWs, killing of hostages, plunder of public, private property causing starvation in occupied countries, destruction of works of art, 6,000,000 buildings leaving 25,000,000 homeless, wanton devastation not justified by military necessity, Germanization of occupied territories. Count 4: crimes against humanity including murder, extermination, enslavement, deportation of civilian populations, persecution on political, racial, religious grounds. Defs pleaded not guilty: trial under ex post facto law, unfairly conducted by non-neutrals.

• Tribunal rejected Defs' motions. Judges appointed by signatories of Charter of IMT: Lord Justice Lawrence and Mr Justice Birkett, member and alternate for UK; Francis Biddle and Judge John J Parker, member and alternate for U.S.; M Le Professeur Donneidieu de Vabres and M Le Conseiller R Falco, member and alternate for France; Major General I T Nikitchenko and Lt Col A F Volchkov, member and alternate for USSR. Evidence on both sides consisted of witnesses, documents captured by Allied armies in German Army headquarters, including correspondence to, from Hitler, other members of Third Reich. 11/45-10/46: Trial. Ct found: 3 Defs not guilty; 8 guilty of count 1; 12 guilty of count 2; 16 guilty of count 3; 16 guilty of count 4. Sentences: 12 to death; 3 to life; 2 to 20 yrs; 1 to 15 yrs; 1 to 10 yrs. Soviet members diss: Hess should receive death instead of life in prison, should be finding Hitler's Cabinet, Gen'l Staff, Army High Command to be criminal organizations.

  War Crimes
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PL-464/1.2. UK v. Tesch (Zyklon B Case)

I Law Reports of Trials of War Criminals 93 (London, 1947); II Laws of War: A Documentary History 1284, 1487, 1498

3 Defs-scientists provided prussic acid for use in concentration camps.

• 3/46: Before British Military Tribunal, Defs argued lack of specific knowledge of use of acid in lethal dosages for criminal purposes. 1946: Tribunal convicted Tesch, Weinbacher; acquitted Drosihn: Defs could not plead ignorance of purpose; civilian accessory to violation of laws, customs of war liable as war criminal. Sentence: Death.

  War Crimes
PL-512/1.2. U.S. v. Araki (Tokyo Judgment, Int'l Military Tribunal for Far East (IMTFE)); 4/29/46-11/12/48, IMTFE Vols I, II, (1977); Transcript of Proceedings, 4/29/46-4/16/48, Vols 1-113, pp 1-48, 412; Narrative Summary, 6/14/46-1/12/48, Vols 1-14; IMTFE Prosecution Summation Vols 1-7; IMTFE Defense Summation Vols 1-16; Analysis of Documentary Evidence Vols 1-29; Exhibits Nos 1-3915; habeas corpus pet den 338 US 197 (1948)

1/1/28-9/2/45: Japanese Defs waged aggressive war against Allies — U.S., UK, China, USSR, Australia, N Zealand, Canada, France, Netherlands, India, Philippines — to gain political/economic domination of E Asia, Pacific, Indian Oceans, bordering countries. U.S. Joint Chiefs of Staff ordered Gen'l MacArthur, Supreme Commander for Allied Powers in Japan, to issue IMTFE Charter as exec decree. Allies convened IMTFE, appointed 10 judges from 10 nations. 4/29/46: IMTFE indicted 28 Japanese Defs (highest gov't/military officials 1/28-9/45) on 55 counts under IMTFE Charter; Potsdam Declaration, cl 8; Instrument of Surrender; Cairo Declaration; Covenant of League of Nations; Kellogg-Briand Pact; Convention for Pacific Settlement of Disputes (1899, 1907); Neutrality Pact between USSR, Japan (1941), Arts I, II; domestic laws of countries where crimes committed. Counts 1-36: crimes against peace (conspiring to wage wars of aggression against Asia, China, U.S., USSR, UK, France). Counts 37-52: murdering civilians, military personnel (2,015,000 Chinese, more than 118,442 Filipinos); Defs maiming, ill-treating, murdering POWs, civilian internees, denying food, shelter, medical care, caging, drowning, burying alive (in "rape of Nanking" 260-300,000 Chinese men, women, children died); forcing POWs, civilian internees into slave labor, conducting "death marches" (in Bataan death march thousands died); Defs perpetrated murder, rape, pillage, brigandage, torture on civilian populations (bombing/bayoneting); wanton destruction of towns, villages. Counts 53-55: conventional war crimes, crimes against humanity. 5/6/46: All Defs pleaded not guilty, challenged IMTFE jurisdiction: aggressive war not per se illegal; war is act of nation for which no individual responsible under int'l law; IMTFE Charter "ex post facto"; killings in course of belligerent operations normal incidents of warfare, not illegal except when violate rules of warfare. 5/46: IMTFE dism'd Defs' motion re jurisdiction.

• 6/3/46-1/24/47: Ch Prosecutor Kennan (U.S.), prosecutors from 11

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nations presented evidence: Defs, others conspired to gain control of Japanese gov't, prepared, indoctrinated Japanese "for program of aggressive warfare;" Defs conspired w/ rulers of Nazi Germany, Fascist Italy to secure political, economic domination of world; Defs waged war of aggression against U.S. in bombing Pearl Harbor. 2/24/47-1/12/48: Defs presented evidence: No substantial evidence showing any Def individually, or in concert, engaged in conspiracy; conspiracy law has no application to official actions; offenses or moral standards defined in vague terms — no intent, most Defs charged w/ acts of omission while serving in highest civil/military offices; Defs' acts were acts of Japanese gov't in sovereign capacity; Defs not answerable under body of law, nat'l or int'l; neither Potsdam Declaration nor Japanese Instrument of Surrender established nat'l or int'l law; Kellogg-Briand Pact did not compromise right of self-defense: nation believing war needed for self-defense might be aggressor in fact, but not breaker of treaty; Japan never ratified Geneva Convention re Treatment of POWs; 1907 Hague Convention re opening of hostilities has no application to situations involving war of self-defense because evidence of prosecution shows U.S., UK, USSR engaged in de facto state of war w/ Japan prior to 12/7/41, by economic/military assistance to China during Sino-Japanese hostilities. No int'l law defines crime of murder; no proof any Def committed murder; no precedent that heads of gov'ts of sovereign nations guilty of murder by legal or extra-legal activities on part of armed forces of sovereign nation. No proof Defs knowingly or intentionally committed conventional war crimes against humanity. 11/4/48-12/48: IMTFE, Pres Webb, pronounced judgment: All Defs guilty; sentences: 7 to death; 15 to life; 1 to 20 yrs; 3 died during trial; 1 declared insane. 5 JJ dissented wholly or in part, 2 re nature of punishment. 12/48: Several Defs filed motions for leave to file petitions for writs of habeas corpus w/ USSC. 12/20/48: USSC denied Defs' motions. Sentences carried out.

  War Crimes
PL-515/1.3. U.S. v. Krupp (Krupp Case)

(U.S. Military Tribunal, Nuremberg); 9 Trials of War Criminals 1327 (1950)

12/43: Under Lex Krupp, Hitler decree, Fried Krupp AG, private co, converted into individually-owned firm of Fried Krupp, in sole ownership of Def-Krupp, who appointed 11 other Defs to management positions w/in co. Since 1943, unincorporated, privately-owned concern owned/controlled directly, as well as through subsidiary holding cos, mines, steel, armament plants, shipyards, machinery factories used in war effort. 1945: After defeat of Nazis, Allied Control Council (U.S., USSR, UK, France) enacted Control Council Law #10. 8/16/47: U.S. filed indictment: Count 1: planning, preparation, initiation, waging aggressive war. Count 2: plunder, spoliation of territories occupied by German armed forces in ruthless way beyond needs of army, in disregard of needs of local economy, Hague Regulations Arts 46-56 (1907), Control Council Law #10, Art II. Count 3: crimes re POWs, slave labor, Hague Rules of Land Warfare. Count 4: common plan/conspiracy to commit crimes against peace. Defs pleaded not

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guilty, asserted necessity defense, filed motion for judgment of not guilty on 1, 4: evidence insufficient as matter of law to warrant judgment.

• 12/9/47-6/9/48: Trial tribunal heard oral testimony of 117 prosecution, defense witnesses, 134 witnesses examined before commrs, prosecution introduced 1,471 docs, defense introduced 2,829 docs. 3/5/48: Tribunal, Daly, Presiding J, granted Defs' motion as to counts 1, 4: prosecution failed to prove case beyond reasonable doubt. 7/48: Tribunal found: 6 Defs guilty on count 2; 10 on count 3. Sentences: 7 to 9-12 yrs; 2 to 6-7 yrs, 1 to 2 yrs.

  War Crimes
PL-514/1.4. U.S. v. Krauch (IG Farben Case)

(U.S. Military Tribunal VI, U.S. Zone of Occupancy, Nuremberg, Case #6); VII, VIII Trials of War Criminals Before Nuremberg Military Tribunals (1952)

5/3/47: U.S. Military Tribunal VI indicted 23 leading German industrialists on 5 counts: Count 1: crimes against peace through planning, preparation, initiation, waging wars of aggression, invasions in other countries. Offenses include: IG Farben allied w/ Hitler, Nazi Party; synchronized activities w/ military planning of German high command; cooperated w/ Hitler to build up military machine violating Versailles Treaty; participated in Germany's 4-yr plan for economic mobilization for war; created, equipped Nazi military machine for war; procured, stockpiled critical war materials (oil, lead, magnesium, etc) for Nazi offenses; participated in weakening enemies; carried on propaganda, intelligence, espionage; Defs participated in plunder, spoliation, slavery, mass murder as part of wars of aggression. Defs violated int'l law, treaties, agreements, assurances, Control Council Law #10, Art II. Count 2: Plunder, spoliation; Defs participated in plunder of public, private property in countries which came under belligerent occupation of Germany; Defs marched w/ Wehrmacht, played major role in Germany's plans for conquest; Defs conceived, initiated, prepared plans for German acquisition of chemical industries in Austria, Czechoslovakia, Poland, Norway, France, Russia, etc. (violated laws, customs of war, int'l treaties, conventions, 1907 Hague Convention, Regs, Arts 45-56, 1131, gen'l principles of criminal law, internal penal laws of countries where crimes committed, Control Council Law No 10, Art II). Count 3: war crimes, crimes against humanity: participating in enslavement, forced labor of civilian population of countries occupied or controlled by Germany, enslavement of concentration camp inmates w/in Germany, use of POWs in illegal labor. Defs charged w/ mistreatment, terrorization, torture, murder of enslaved persons. Count 4: Defs Schneider, Buetefisch, von der Heyde charged w/ membership in criminal org. Count 5: conspiracy to commit crimes against peace. 8/14/47: Defs pleaded not guilty.

• 8/27/47-5/12/48: Defs tried by U.S. military tribunal. Tribunal acquitted (2-1) all Defs on Counts 1, 4, 5; convicted all on Count 2; convicted some, acquitted others on Count 3 (dissenter argued sufficient evidence to convict all Defs for mass murder, slavery). Sentences: 1½ to 8 yrs.

  War Crimes
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PL-191/1.5. U.S. v. Brandt (Medical Case)

(U.S. Military Tribunal I, U.S. Zone of Occupancy, Nuremberg, Case #1, 1947); I, II Trials of War Criminals Before Nuremberg Military Tribunals Under Control Council Law #10 (1949); cert den 333 US 836 (1948); Frontline, PBS series (2/24/87)

1939-45: 23 Defs, including doctors, held key positions in Third Reich. 10/25/46: U.S. indicted Defs on 4 counts: 1) conspiracy to commit war crimes; 2) war crimes; 3) crimes against humanity, including experimentation on concentration camp victims (eg, high-altitude, freezing, mustard gas, poison experiments); 4) membership in criminal org under 1907 Hague Regs, Arts 4-7, 46; 1929 Geneva POW Convention, Arts 2-4; laws, customs of war; gen'l principles of criminal law; internal penal laws of countries in which crimes committed; Control Council Law #10, Art II (1945). Defs argued: not implicated in experiments due to limited powers, specific duties; superior orders freed them from criminal responsibility; participation in experiments was voluntary; medical experiments took place due to military necessity, nat'l emergency; killings justified because victims were spies; experiments were substitutes for punishments previously imposed; experiments furthered medical science.

• 1947: Beals, Presiding J (ChJ, WA Sup Ct), Sebring, J (Associate J, FL Sup Ct), Crawford, J (OK DJ): Ct lacked jurisdiction on Count 1; 7 Defs not guilty; 1 guilty on Count 6; 6 guilty on Counts 2, 3; 9 guilty on Counts 2, 3, 5. Sentences: 7 to death; 5 to life; 3 to 20, 15, 10 years. 16 Defs petitioned Military Gov Clay for clemency; 15 petitioned USSC for writs of habeas corpus, prohibition against proceeding or order nullifying trial. Clay denied pet. 1948: USSC denied cert. U.S. High Commr John McCloy commuted 9 Defs' sentences. Drs Siegfried Ruff, Konrad Schaeffer among those acquitted. 1947: Pentagon brought 4 Defs to U.S. to work on space/high-altitude programs as part of Project Paperclip, under which 400 Nazi scientists brought to U.S. To bypass immigration law barring Nazis, Sec'y of War Patterson, Sec'y of State Acheson, Asst Sec'y of State Gen'l Hildring gave military right to authorize immigration; U.S. military cleaned scientists' records of references to SS, Nazi Party.

  War Crimes
PL-516/1.5. U.S. v. List (Hostages Case)

(U.S. Military Tribunal, Nuremberg, 2/48); 11 Trial of War Criminals 1230 (1950)

1946: U.S. Military Tribunal indicted German Defs-Field Marshals List, von Weichs; Gen'ls Rendulic, Kuntze, Foertsch, Boehme, Felmy, Lanz, Dehner, von Leyser, Speidel, von Geitner, commanders of German Mountain Forces, armed forces in SE: war crimes, crimes against humanity under Control Council Law #10. Count 1: killed, tortured 100,000 civilians labelled "partisans", "Communists" in Greece, Albania, Yugoslavia, as retaliation for military attacks on Germans; ordered 100 "hostages" killed for every German soldier killed, 50 "hostages" killed for every German soldier wounded. Count 2:

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Plundered, destroyed cities/farms/villages in Greece, Yugoslavia, Albania, Norway w/ no military necessity. Count 3: Denied enemy troops POW status/rights; executed prisoners; held relatives of soldiers in Greece, Yugoslavia, Italy nat'l armies responsible for members' acts of war. Count 4: Forced labor, slave labor, concentration camps, murder, terrorization of civilian populations of Greece, Yugoslavia, Albania. Acts charged violated 1907 Hague Regs, gen'l criminal law principles, penal laws of countries where crimes committed; Control Council Law #10 declared, recognized, defined acts as crimes. All Defs pleaded not guilty except Boehme, who committed suicide before arraignment.

• 1948: After trial before Wennerstrum, Presiding J: 1) Yugoslavia, Greece were occupied; 2) partisan troops failed to observe laws, customs of war, exercised guerrilla warfare against occupiers, thus not lawful belligerents, not entitled to POW treatment; 3) term "hostage" used inappropriately; 4) Defs' acts were reprisals; military necessity does not justify violation of positive law, thus not valid defense to Defs' arbitrary, excessive reprisals; convicted 8 Defs; sentences: 2 to life, 2 to 20 yrs, 1 each to 15, 12, 10, 7 yrs; acquitted 2 Defs.

  War Crimes
PL-193/1.6. U.S. v. Ohlendorf (Einsatzgruppen Case)

(U.S. Military Tribunal II, U.S. Zone of Occupancy, Nuremberg, Case #9, 1948); IV Trials of War Criminals before Nuremberg Military Tribunals (1946); cert den 336 US 964 (1946)

5/41: 24 Defs held high posts in Einsatzgruppen (special task forces) formed before German attack on USSR to accompany German Army into occupied East to exterminate Jews, gypsies, Soviet officials, others. 7/9/47: U.S. charged Defs on 3 counts. Count 1: crimes against humanity, including murder, extermination, imprisonment, genocide, constituting violations of law of nations, int'l conventions, general principles of criminal law, internal penal laws of countries in which crimes were committed, Control Council Law #10, Art II. Count 2: war crimes including murder, torture of POWs, civilians, wanton destruction not justified by military necessity, violating 1907 Hague Convention #IV Regs, Arts 43, 46; 1929 Geneva POW Convention; laws, customs of war. Count 3: membership in criminal orgs so declared in Control Council Law #10, Art II. Defs argued: superior orders, no means of refusing orders; orders justified because they believed Jews were Nazi enemies, bearers of bolshevism; since Allies killed large numbers of German civilians w/out being charged, Defs also should not be charged; killings constituted death penalties for illegal partisan activities or reprisal measures justified under int'l law; evidence submitted by prosecution inaccurate. 7/31/47: Def Haussmann committed suicide.

• 4/8/48: Mussmanno, Presiding J (Member, U.S. Naval Reserve on military leave from Ct of Common Pleas, Allegheny Co, PA), Speight, J (member, AL bar), Dixon, J, found: all Defs guilty on count 3; 20 guilty on counts 1, 2. Sentences: 14 to death; 2 to life; 3 to 20 yrs; 2 to 10 yrs. 3/4/49: U.S. Military Gov Clay aff'd sentences. 5/2/49: USSC denied Defs' petitions to modify sentences.

  Crimes Against Humanity
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PL-195/1.7. U.S. v. Milch (U.S. Military Tribunal II, U.S. Zone of Occupancy, Nuremberg, Case #2, 1947); II Trials of War Criminals before Nuremberg Military Tribunals 355 (1946); 332 US 789 (1947)

1939-45: Def held top Third Reich posts. 11/13/46: U.S. indicted Def: Count 1: war crimes involving deportation to slave labor of civilian populations of Austria, Czechoslovakia, Italy, Hungary resulting in enslavement, torture, murder of millions; war operations including transportation of arms in course of which murders, other inhumane acts committed, constituting violations of 1907 Hague Regs, Arts 4-7, 46, 52; 1929 Geneva POW Convention, Arts 2-4, 6, 31; laws, customs of war, general principles of criminal law, internal penal laws of countries in which crimes committed, Control Council Law #10, Art II. Count 2: war crimes involving medical experiments on humans resulting in murder, torture, in violation of Hague Regs Arts 4-7, 46; POW Convention, Arts 2-4. Count 3: Crimes against humanity consisting of acts in counts 1, 2. Def argued: lacked knowledge of war crimes due to superior's mistrust in Def; documents submitted as evidence inaccurate.

• 4/16/47: Toms, Presiding J (CJ, Detroit, MI), Phillips, J (NC Super Ct) Musmanno, J (Ct Common Pleas, Allegheny Co, PA) found Def guilty on counts 1, 3; not guilty on 2. Sentence: life. 5/2/47: Military Gov denied Def's petition for clemency. 10/20/47: USSC (4-4) denied habeas petition.

  Crimes Against Humanity
PL-212/1.7. U.S. v. Greifelt (RuSHA Case)

(U.S. Military Tribunal I, U.S. Zone of Occupancy, Nuremberg, Case #8, 1948); IV, V Trials of War Criminals before Nuremberg Military Tribunals 599 (1946)

7/1/47: U.S. indicted 14 leading officials of German Race and Settlement Main Office ("RuSHA"), 3 other SS agencies. Count 1: crimes against humanity involving acts carried out as part of systematic program of genocide including kidnapping children of foreign nat'ls to select for Germanization those considered to be of "racial value", exterminating those born of eastern workers in Germany; compelling abortions on eastern workers; hampering reproduction of enemy nat'ls; executing, imprisoning, Germanizing eastern workers who had sexual intercourse w/ Germans, imprisoning Germans involved; evacuating enemy populations from native lands, resettling land w/ ethnic Germans; compelling nat'ls of other nations to perform work in Germany, become members of German community, join German Armed Forces; persecution, extermination of Jews in violation of 1907 Hague Regs, Arts 4-7, 23, 43, 45-47, 52, 56; laws, customs of war; general principles of criminal law; internal penal laws of countries in which crimes committed; Control Council Law #10, Art II. Count 2: war crimes including plunder of public, private property, murder, extermination, enslavement, deportation, imprisonment, torture; violation of Hague Regs; 1929 POW Convention; other laws in count 1. Count 3: membership in criminal org. Defs argued: acted under

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superior orders; legal concept of genocide had not yet been formulated by authoritative int'l orgs at time of acts, so ex post facto; Poland lost sovereignty to Germany in 1939, therefore German law was legally binding on Defs; contested validity of parts of Hague Regs.

• 3/10/48: Wyatt, Presiding J (Assoc J, GA Sup Ct), O'Connell, J (Associate J, MA Sup Ct), Crawford, J (OK DJ): 13 Defs guilty on count 3; 7 guilty on counts 1, 2; 1 not guilty. Sentences: 2 Defs to 25 yrs; 1 to 20 yrs; 3 to 15 yrs; 1 to 10 yrs; 5 to time served. U.S. Military Gov Clay aff'd all sentences. 5/2/49: USSC denied writ of habeas corpus to 6 Defs.

  Crimes Against Humanity
PL-465/1.8. U.S. v. Flick (U.S. Military Tribunal, Nuremberg, 1948); II Laws of War: A Documentary History 1284, 1487

2/48: Defs-German industrial leaders indicted on 5 counts: participation in Third Reich slave-labor program; spoliation of public, private property in occupied territories; crimes against humanity; knowledge of Himmler's criminal activities; contributing to/membership in SS. Defs argued int'l law outside work, interest, knowledge of private individuals.

• Tribunal convicted 3; acquitted 3: int'l law binds every citizen just as does municipal law; criminal acts by Gov't official are criminal when done by private individual; Gov't crime differs only in magnitude, not quality. Sentences: 2½-7 yrs.

  Crimes Against Humanity
PL-466/1.8. U.S. v. Weizsaeker (Ministries Case)

(U.S. Military Tribunal, Nuremberg, 1948); 14 Trial of War Criminals, 308 (1952); II Laws of War: A Documentary History 1248, 1487, 1498

11/18/47: Indictment filed against 19 Defs-officials in Foreign Ministry, other branches of Nazi Gov't: 8 counts of crimes against peace, crimes against humanity, participating in common plan, conspiracy to commit crimes against peace. 1/7/48: Presentation of evidence.

• Tribunal convicted Defs on 1-5 of 8 counts: liability extends to lower officials who aided in implementation of Nazi policies w/ knowledge of their nature. Sentences: 4-20 yrs.

  Crimes Against Humanity
PL-196/1.8. UK v. Killinger (Dulag Luft Trial)

(British Military Ct for Trials of War Crimes at Wuppertal, 1945); IX War Crimes Trials, Dulag Luft Trial (1952)

1943-45: Defs-Commandant, Chief Interrogator, officer in charge of admr, 2 ordinary interrogators at Third Reich's Dulag Luft POW camp in Germany. Prosecution alleged Defs extracted information from Allied airmen by torture. 11/26/45: Britain indicted Defs: crimes against laws of war, including 1929 Geneva Convention, Arts 2, 5. Defs argued: not culpable for crimes committed under superiors' orders; argued prosecution's evidence inaccurate.

• Judgment by 3 British military officials: 3 Defs guilty; 2 not guilty. Sentences: 2 to 5 yrs; 1 to 1 yr.

  War Crimes
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PL-198/1.9. UK v. Zuess (Natzweiler Trial)

(British Military Ct for Trials of War Crimes at Wuppertal); V War Crimes Trials, Natzweiler Trial (1949)

4/6/44: 4 female British POWs at Natzweiler concentration camp in Alsace, w/out h'g or trial, killed by injection of poison, immediately cremated. 5/29/46: Britain indicted 9 Defs-camp officials: war crimes, crimes against humanity under 1945 London Agreement and Charter, 1907 Hague Regs. Defs argued: not present at executions, no knowledge of crimes; acts were lawful execution of spies.

• Judgment by 3 British military officials: 6 guilty, 3 not guilty. Sentences: 1 to death; 1 to life; 1 to 13 yrs; 1 to 10 yrs; 1 to 5 yrs; 1 to 4 yrs.

See Killinger, PL-196/1.8

  War Crimes
PL-211/1.9. UK v. von Falkenhorst (British Military Ct for Trial of War Crimes at Brunswick, 1946); VI War Crimes Trials, The Falkenhorst Trial (1949)

1940-44: Def-Commander in Chief of German armed forces in Norway. 10/26/42: Def followed orders to: refuse to quarter Allied military personnel, kill them after capture. Britain indicted Def: 9 charges of ordering prisoners to be killed, specific cases in which prisoners killed in violation of laws, customs of war as found in int'l laws, laws of individual nations. Def argued he acted under superior orders.

• Judgment by 3 British military officials: Def guilty of 7 charges, acquitted of 2. Sentence: death.

  War Crimes
PL-513/1.9. Yamashita v. Styer (Appeal of Tomoyuki Yamashita before USSC)

327 US 1 (1946); IV, B UN War Crimes Comm, Law Reports of Trials of War Criminals 75-96

10/9/44-9/2/45: Def-Commanding Gen'l, 14th Army Group, Imperial Japanese Army, Philippines. 9/3/45: Def surrendered, became POW of U.S. Armed Forces in Philippines. 9/25/45: U.S. Army Lt Gen'l Wilhelm Styer charged Def, while commander of armed forces of Japan at war w/ U.S./allies, for unlawfully disregarding/failing to discharge duty as commander to control operations of members of command, permitting brutal atrocities against people of U.S./allies, particularly Philippines, violating laws of war: 1) starvation, execution/massacre w/out trial, maladministration of civilian internees/POWs; 2) torture, rape, murder, mass execution of over 25,000 Filipino men, women, children, including members of religious orders, by starvation, beheading, bayoneting, clubbing, hanging, burning alive, destruction by explosives; 3) burning/demolition w/out adequate military necessity of large numbers of homes, businesses, hospitals, religious, educational institutions. 10/8/45: Def pleaded not guilty; moved to dismiss for failure to state violation of laws of war.

• 10/29-12/7/45: Military commn-5 U.S. Army officers appointed by Styer tried Def. 12/7/45: Commn found Def guilty, sentence: death by

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hanging. 11/28/45: Def filed petitions for habeas corpus/prohibition to Philippines Sup Ct: detention unlawful, military commn w/out jurisdiction because: 1) no military commn could lawfully be convened after cessation of hostilities between armed forces of U.S., Japan; 2) failed to charge Def w/ violation of law of war; 3) order governing procedure/commn's rulings permitted admission in evidence of depositions, affidavits, hearsay, opinion evidence in violation of Arts of War 25, 38 (10 USC §§1496, 1509), Geneva Convention (47 Stat 2021), 5th Amdt due process; 4) failed to give advance notice of trial to neutral power representing Japan's interests as belligerent required by Geneva Convention Art 60. 11/28/45: Philippine Sup Ct denied petitions: jurisdiction limited to inquiry re military commn's jurisdiction to put Pet on trial; found jurisdiction. 12/17/45: Writs forwarded, reviewed by USSC. 2/4/46: USSC aff'd (6-2), Stone, ChJ: denied cert: 1) U.S. Cong recognized "military commission" appointed by military command as appropriate tribunal for trial/punishment of offenses of law of war (1917 Espionage Act, 50 USC §38; Arts of War §§2, 12, 15, 10 USC §§1473, 1483, 1486; U.S. Const, Art 1, §8, cl 10; 317 US 1); 2) such tribunals not cts whose rulings subject to review by USSC ( 17 L Ed 589; 179 US 126; supra); 3) end of hostilities does not preclude trial of offenders before military commn, at least until peace officially recognized by treaty: Art of War 15, 10 USC §1486; U.S. Const, Art 1, §8, cl 10; 4) Commanding gen'l had affirmative duty to take measures to protect POWs from violations of law of war while Japanese forces occupied Philippines: Annex to 1907 4th Hague Convention, Arts 1, 43; 10th Hague Convention, Art 19. Rutledge, Murphy, JJ, diss: 1) Def denied protection of 5th Amdt due process, charged w/ legally unrecognized war crime; 2) Def given insufficient time to prepare; 3) Commn's findings did not prove Def had knowledge of widespread atrocities, crimes; 4) U.S. violated Geneva Convention Art 60 by not notifying neutral power representing Japan's interests as belligerent in advance of trial. 2/23/46: U.S. hanged Def in Manila, Philippines.

U.S.-Solicitor Gen'l J Howard McGrath; Pet-Capt A Frank Reel, JAGD

  War Crimes
PL-511/1.10. Supreme Soviet of USSR v Otozoo (Materials on Former Servicemen of Japanese Army charged w/ Manufacturing/Employing Bacteriological Weapons, Moscow, 1950)

1934: Following secret order by Emperor Hirohito, Japan's General Staff/Ministry for War set up 2 units for manufacture of bacteriological weapons for Kwantung Army to carry out goal of creating "Greater East Asia Co-Prosperity Sphere," including China, Soviet Far East, Netherlands, India, Afghanistan, Australia, New Zealand, Philippines, etc. 1934-1945: 12 Defs (including high officials, doctors, veterinarians) participated in production of bacteriological weapons for use in warfare, chiefly against USSR: bred germs of plague, cholera, gas gangrene, anthrax, typhoid, paratyphoid, etc; conducted inhuman experiments on Chinese, Soviet POWs; shot or injected male/female

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POWs w/ lethal bacteria, potassium cyanide. Army Detachments manufactured bacteria bombs, walking sticks, fountain pens to disperse in USSR, China. 1945: Defs sprayed/bombed lethal germs, released fleas, rodents, other animals infected w/ germs into inhabited localities, wells, crops, livestock in China, areas contiguous to USSR causing plague, cholera, other epidemics to kill millions of civilians, troops. 12/16/49: Presidium, Supreme Soviet, USSR indicted 12 Defs-Kwantung Army members, under Decree Art 1: supervising production of bacteriological weapons for use against USSR, other states; allowing/engaging in criminal bacteriological experiments on people; active bacteriological warfare against China, bacteriological sabotage against USSR.

• 12/25-30/49: Primorye Military Area Military Tribunal tried Defs. All 12 Defs pleaded guilty; some expressed remorse; some said following superior orders. Judgment: guilty; sentences to labor correction camps: 4 Defs to 25 yrs; 2 to 20 yrs; 4 to 10-18 yrs; 2 to 2-3 yrs.

  War Crimes
PL-517a/1.11. USSR v. Fedorenko (Crimean Regional Ct, Simferopol, Ukraine); (USSR Supreme Soviet)

1942-43: Def-guard, Treblinka concentration camp. 1949: Def entered U.S. 1970: Def became U.S. citizen. 6/28/79: 5th Cir revoked citizenship. 1/21/81: USSC (7-2) Marshall, J, aff'd revocation. 12/19/84: USSC, Brennan, Stevens, JJ, rejected appeals. 12/21/84: U.S. deported Def to USSR, arrested: treason.

• 6/10/86: Regional Ct trial commenced. 6/19/86: Tyutyunnik, J: Def guilty of treason, voluntarily aiding Nazi forces during WWII, participating in mass execution of civilians; sentence: death. Def applied for mercy. Ukrainian presidium, Supreme Soviet denied. Presidium, USSR Supreme Soviet denied. 7/27/87: Def executed by firing squad.

See PL-517/42.6

  War Crimes
PL-518/1.11. France v. Alois Brunner (Paris Ct 1954); (Marseilles Ct 1954)

1940s: Austrian Adolf Eichmann ordered, carried out deportation to concentration camps of 130,000 Jews from France, Austria, Greece, Czechoslovakia. World Jewish Cong charged Def-Austrian: acting under Eichmann's command.

• 1954: Paris, Marseilles Cts tried Def in absentia; convicted; sentence: death. 1983: Germany asked Syria to extradite Def; Syria denied Def in Syria. 12/17/88: French Foreign Ministry sent request for extradition to Syria: Def living there under false name. 7/18/91: French J Jean-Pierre Getti signed legal request for Syria to aid in identification of Def. 8/91: Germany, France agreed jointly to seek extradition of Def. Syria continued to deny Def's presence. 9/12/91: European Parliament passed resolution (219-0, 1 abstention) suggesting 12 EC Gov'ts launch joint initiative to persuade Syria to expel Def. Pending.

Roland Weyl, Paris, France

  War Crimes
- 2.1 -
B. UNITED NATIONS
1. INTERNATIONAL TREATIES

PL-370/2.1. United Nations Charter (TS 993, 59 Stat 1031 (1945), 3 Bevans 1153)

6/26/45: 51 nations signed at San Francisco Charter establishing United Nations, including: Art 2.1) Sovereign equality of all nations; Art 2.3) All members to settle disputes by peaceful means; Art 2.4) All members to refrain from threat/use of force in int'l relations; Arts 9-22) General Assembly; Art 19) Members cannot vote in UNGA if 2 yrs in arrears in contributions; Arts 23-32) Security Council; Arts 33-38) Pacific settlement of disputes; Arts 39-51) Action re threats to peace/acts of aggression; Art 51) right of self-defense against armed attack; Art 55) UN shall promote: a) higher standards of living, full employment; b) solutions of int'l economic, social, health problems, int'l cultural/education cooperation; c) human rights for all w/out distinction as to race, sex, language, religion; Arts 61-72) Economic & Social Council; Art 71) Economic & Social Council to consult w/ NGOs; Arts 73-74) Int'l Trusteeship System; Arts 75-91) Trusteeship Council; Arts 91-96) Int'l Ct of Justice; all members ipso facto parties to Stat of ICJ; Arts 97-101) Secretariat.

• 10/24/45: Entered into force. 1993: 179 signatories.

  UN Charter
PL-364/2.1. Genocide Convention (Convention on the Prevention and Punishment of the Crime of Genocide)

78 UNTS 277 (1948)

3 nations introduced resolution declaring genocide a crime under int'l law: whether committed in peace or war, committing acts w/ intent to destroy "national, ethnic, racial or religious group" by killing, causing serious bodily/mental harm, inflicting conditions to cause its physical destruction, preventing births, or forcibly transferring its children; including conspiracy, direct/public incitement, attempt, complicity.

• 12/9/48: UNGA unanimously endorsed Convention. 1/12/61: Entered into force. 1993: 109 signatories, including U.S.

See PL-365/50.5

  Genocide
PL-96/2.1. International Convenant on Economic, Social and Cultural Rights 993 UNTS 3, GA Res 2200, 21 UN GAOR Supp No 16, at 49, UN Doc A/6316 (1966)

12/16/66: UNGA adopted Covenant providing: Parties to recognize right to earn a living, to form trade unions, to social security and social insurance, to family not to be hungry, to physical and mental health, to education and cultural life, etc. Verification: Each party must submit progress reports to UN Sec'y-Gen'l, to be reviewed by Economic and Social Council. Int'l action (conventions, recommendations, technical assistance, regional meetings) may be used to

- 2.2 -
further such rights. Duration: Unlimited.

• 1/3/76: entered into force. 1993: 124 signatories; pending before U.S. Senate since 1977.

  Human Rights
PL-97/2.2. International Covenant on Civil and Political Rights 999 UNTS 171, GA Res 2200, 21 UN GAOR Supp No 16, at 52, UN Doc A/6316 (1966)

12/16/66: UNGA adopted Covenant providing: Parties to recognize right to live, not to be held in slavery, to liberty, to leave/enter one's own country, to freedom of thought and opinion, not to have war or racial hatred propaganda, to a family/marriage/children, equality w/ in marriage, etc. Verification: elected 18-member Human Rights Comm of experts reviews initial reports of signatory nations, subsequent 5-yr reports; dialogues w/ reporting gov'ts. Each signatory may report on another party's failure to fulfill Covenant obligations; if not dealt w/ satisfactorily, Comm will deal w/ issue w/in 12 mths; if solution not reached, Conciliation Commn can be appointed. Duration: Unlimited, amdts approved by 2/3 of signatories.

• 3/23/76: entered into force. 1993: 122 signatories, including U.S.

See PL-98/2.2; PL-97a/51.3

  Human Rights
PL-98/2.2. First Optional Protocol to International Covenant on Civil and Political Rights 999 UNTS 171, GA Res 2200, 21 UN GAOR Supp No 16, at 59, UN Doc A/6316 (1966)

12/16/66: 13 nations signed at New York. Parties agreed to enable UN Human Rights Comm to receive, consider communications from individuals claiming to be victims of violations of any rights set forth in (PL-97/2.2). Parties agree Comm shall accept only written communications re States Parties to both Covenant and Protocol, by identified individuals who have exhausted all available domestic remedies; Comm will notify State Party alleged to be in violation of Covenant that state shall submit written explanation of charges w/in 6 mths. Comm to hold closed meetings re individual submissions, forward finding to both State Party, individual concerned.

• 3/23/76: entered into force. 1993: 74 signatories, not including U.S.

  Human Rights
PL-99/2.2. International Convention on the Elimination of All Forms of Racial Discrimination 660 UNTS 195, GA Res 2106 A (XX) (1966)

12/21/65: Parties agreed to condemn racial discrimination, eliminate barriers between races, condemn racial segregation, condemn supremacist propaganda; to uphold civil, economic, social/cultural rights. Verification: elected Comm on Elimination of Racial Discrimination to be formed to review all reports from parties. Where Comm unable to reach agreement between parties, ad hoc Conciliation Comm to be formed, expenditures of which covered by parties

- 2.3 -
in dispute. Duration: unlimited.

• 1/4/69: entered into force. 1993: 137 signatories; pending before U.S Senate.

  Racial Discrimination
PL-100/2.3. International Convention on Suppression and Punishment of Crime of Apartheid 1015 UNTS 243, GA Res 3068, 28 UN GAOR Supp No 30, at 75, UN Doc A/9030 (1973)

11/30/73: 20 nations signed at New York. Parties agreed to declare apartheid as crime against humanity; condemn murder, illegal arrest, infliction on members of racial group; agreed to condemn persecution of persons opposed to apartheid. Verification: Commn on Human Rights to transmit copies of petitions, prepare lists of parties violating Convention. All unresolved disputes to be brought before ICJ. Duration: Unlimited, revision allowed.

• 7/18/76: entered into force. 1993: 97 signatories, not including U.S.

  Apartheid
PL-102/2.3. Convention on Elimination of All Forms of Discrimination Against Women 1249 UNTS 13, GA Res 34/180, 34 UN GAOR Supp No 46, at 193, UN Doc A/34/46 (1979)

12/18/79: Parties agreed to condemn discrimination against women in all forms, to eliminate discrimination in political/public life; w/in field of education including reduction of female student drop-out rates; removal of discrimination in employment giving women equal right to social security, health protection, right to paid maternity leave; equality in field of health care; agreed to acknowledge non-monetarized work of women in rural sector; right to enjoy adequate housing, sanitation, water; parties to provide equity before law, w/in family, including same rights as men to choose family name, occupation. Verification: Reports to be submitted to Comm on Elimination of Discrimination Against Women, meeting 2 weeks/yr. Comm to report annually to UNGA. Duration: Unlimited.

• 9/3/81: entered into force. 1993: 125 signatories; pending before U.S. Senate since 1980.

  Gender Discrimination
PL-101/2.3. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Annex GA Res 46 (XXXIX 1984)), 23 ILM 1027 (1984); as modified 24 ILM 535 (1985)

1975: UNGA adopted Declaration on Protection Against Torture. 1986: UNGA debated Convention provisions: no one shall be subjected to torture or cruel, inhuman or degrading treatment. Convention defined torture as any act by which severe pain, physical or mental suffering is intentionally inflicted for purposes of obtaining confession, punishing, or intimidating, inflicted by or at instigation of/with consent or acquiescence of public official/person acting in official capacity; specifically rejected state or threat of war, internal political instability or public emergency as justifications of

- 2.4 -
torture. Convention forbade states from extraditing person to state where he would likely be subject to torture. Called for states to take into custody any person accused of torture, to make torture criminal offense, to extradite persons accused of torture, to provide right to compensation for victims of torture. Called for states to institute law enforcement education, systematic review, investigation, right to complain as methods of preventing torture/all other forms of cruel, inhuman, degrading treatment. Established elected UN Comm Against Torture to review measures taken by parties to Convention, consider communications from individuals who have exhausted domestic remedies.

• 10/10/84: UNGA adopted by consensus. 6/26/87: entered into force. 10/27/90: U.S. Senate moved to consent to ratification. 1993: 76 signatories.

  Torture
PL-103/2.4. Convention on Rights of the Child (GA Res 44/25), 28 ILM 1448 (1989); corrected 29 ILM 1340 (1990); 32 ILM 1469 (1993)

11/20/89: UNGA adopted Convention w/out vote. 1/26/90: 61 countries signed at UN. Parties agree to protect civil, political, economic, social, cultural rights of children under 18, except where applicable law confers majority earlier. Parties recognize child's right to name, nationality, education, care by parents, protection against illicit transfer, sexual or economic exploitation; freedom to express views in all matters affecting children, freedom of religion, association, leisure; access to media, health care, social security programs. Parties agree to ensure adoption policies protecting interests of child; grant refugees protection/humanitarian assistance; provide care to mentally/physically disabled; establish laws, institutions applicable to children w/in penal system. Rights to be accorded in nondiscriminatory manner, taking into account rights, duties of parents/guardians as well as local custom. Parties must submit regular reports to 10-member Comm on Rights of Child. First report due 2 yrs following entry into force for Party, every 5 yrs thereafter.

• 9/2/90: Entered into force. Fall/90: U.S. Sen approved non-binding resolution urging Pres to sign. 4/91: U.S. Sens Dole (R-KS), Lugar (R-IN), Hatfield (R-OR), circulated letter expressing concern U.S. sole major Western democracy not to sign. 6/23/93: 143 signatories, not including U.S.

  Children
PL-93/2.4. Biological Weapons Convention (Convention on Prohibition of Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction)

(UN Res 2826 (XXVI 1972)); 26 UST 583, TIAS 8062, 11 ILM 309 (1972)

4/10/72: 111 countries (including U.S., USSR) signed at Washington, London, Moscow. Parties agreed not to develop, produce, stockpile or acquire biological agents, toxins "of types and in quantities that have no justification for prophylactic, protective, and other peaceful

- 2.5 -
purposes", as well as weapons, means of delivery. Enforcement: All such material to be destroyed w/in 9 mths of convention's entry into force; complaints of breach of obligations to be taken up w/ UNSC. Geneva Protocol obligations not to be lessened by agreements compiled at this convention. Duration: unlimited.

• 3/26/75: entered into force. 1993: 130 signatories.

  Arms Limitation
PL-82/2.5. Geneva Protocol (Protocol for Prohibition of Use in War of Asphyxiating, Poisonous or Other Gases, of Bacteriological Methods of Warfare)

26 UST 571, TIAS 8061, 94 UNTS 65 (1925)

6/17/25: 126 nations signed at Geneva protocol prohibiting use of asphyxiating, poisonous, other gases; all analogous liquids, materials or devices, in situations of war. Extension: parties agree to extend prohibition to bacteriological methods of warfare. Duration: unlimited.

• 2/8/28: Entered into force. 4/10/75: Entered into force for U.S. 1987: 126 signatories.

  Chemical Weapons
PL-524/2.5. Geneva Convention Re Treatment of Prisoners of War 6 UST 3316, TIAS 3364, 75 UNTS 135 (1949); 101 Cong Rec 8537 (7/6/55)

8/12/49: 146 nations signed at Geneva. Parties defined POW as member of armed forces, resistance group, nonmilitary personnel accompanying armed forces, crews of merchant marine/civil aircraft, who has fallen into power of enemy. Parties agreed to treat POWs humanely: POWs need only give name, rank, serial number, date of birth; detaining power: 1) shall allow POWs to retain possession of personal effects, articles of personal protection; 2) shall immediately evacuate POWs to camps safe from combat zone; 3) may use labor of physically fit POWs; 4) must allow POWs to write to Central POW agency, family, w/in 1 week of capture; 5) shall allow POWs to send/receive mail. Duration: unlimited.

• 2/2/56: entered into force for U.S. 1993: 176 signatories.

  Prisoners of War
PL-525/2.5. Geneva Convention Re Protection of Civilian Persons in Time of War 6 UST 3516, TIAS 3365, 75 UNTS 287 (1949)

8/12/49: 145 nations signed at Geneva. Parties agreed to protect civilians in wartime, defined protected civilians as persons having had no participation in hostile activities who have fallen into hands of occupying power. Parties agreed any party to conflict may propose establishment of neutral/safety zones intended to protect wounded, sick, civilians. Protected persons entitled to humane treatment: to leave territory at beginning of conflict unless departure goes against best interest of state; occupying power shall not: withhold/change benefit of Convention, forcibly transfer protected persons unless evacuation necessary for security of population; encourage civilians to participate in armed auxiliary forces; intentionally destroy private/public property unless done by military operations. Occupying power shall assist institutions responsible for

- 2.6 -
care/education of students. Convention applies at beginning of conflict, ends at close of military operations. Duration: unlimited.

• 10/21/50: entered into force. 2/2/56: entered into force for U.S. 1993: 176 signatories.

  Civilians
PL-86/2.6. Antarctic Treaty 12 UST 794, TIAS 4780, 402 UNTS 71 (1961)

12/1/59: 12 countries (including U.S., USSR) signed at Washington: Antarctica shall be used for peaceful purposes only, any measures of military nature prohibited in area south of 60° S Latitude, including all ice shelves. Exclusions: Treaty does not prevent use of military personnel, equipment for scientific research or other peaceful purposes, or carrying out aerial inspections in Antarctica; rights of states under int'l law re high seas not affected. Enforcement: Any dispute not resolved by two contracting parties involved referred to ICJ for settlement. Duration: Conference to be called in 30 yrs to review operations of treaty if any parties request it.

• 6/23/61: Entered into force. 1987: 19 signatories. 1991: Parties requested conf. 10/7-18/91: Review meeting held to discuss: need for more scientific research, improvement of monitoring research facilities, control of tourism in area. Parties agreed to convene annually instead of biennially. 11/92: meeting in Venice, Italy to discuss permanent secretariat. 1993: 44 signatories.

  Arms Limitation
PL-87/2.6. Limited Test Ban Treaty (Banning Nuclear Weapons Tests in Atmosphere, Outer Space, Under Water)

14 UST 1313, TIAS 5433, 480 UNTS 43, 2 ILM 883 (1963)

8/5/63: 108 countries signed at Moscow (U.S., USSR, UK original parties, 15 signed but did not ratify). Preamble: Parties "seek to achieve banning of all nuclear test explosions, including ... underground." Art II: Each party undertakes to prohibit nuclear weapons tests "or any other nuclear explosion" in atmosphere, outer space, under water; to prohibit nuclear explosions in environment if they cause "radioactive debris to be present outside territorial limits of the state whose jurisdiction or control the explosions were conducted," but does not specifically ban nuclear tests underground. If 1/3 of signatories request Comprehensive Test Ban Amdt Conf, U.S., USSR, UK must convene Conf at which treaty can be changed to Comprehensive Test Ban Treaty. Duration: unlimited; withdrawals permitted on 3 mths notice if extraordinary events related to subject matter of treaty have jeopardized supreme interests of nation.

• 10/10/63: Entered into force. 116 nations signed treaty. 7/89: 41st country requested Amdt Conf to amend from Limited to Comprehensive Test Ban Treaty. 1/7/91: 96 of 118 signatory nations met at UN; proponents sought to convince U.S., USSR, UK to make this amdt; USSR supported; U.S., UK announced intention to veto. France, China did not attend: testing nations, have not signed treaty. 1/18/91: Parties voted to continue Conf (75-2, 19 abstentions). Issue pending.

  Nuclear Test Ban
- 2.7 -
PL-88/2.7. Outer Space Treaty (Treaty On Principles Governing Activities of States in Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies)

18 UST 2410, TIAS 6347, 610 UNTS 205, 6 ILM 386 (1967)

1/27/67: 89 countries (including U.S., USSR) signed at Washington, London, Moscow. Parties agreed to restrict military activity in outer space; not to place in orbit around earth any objects carrying nuclear weapons, other weapons of mass destruction; nor install such weapons on celestial bodies, station such weapons in outer space; to use moon, other celestial bodies for peaceful purposes only. Exclusion: use of military personnel for scientific research, other peaceful purposes not prohibited. Enforcement: questions on use, exploration of outer space to be resolved by parties to treaty; parties conducting activities in outer space agree to inform UN Sec'y-Gen'l, public, int'l scientific community re nature, conduct, locations, results of activities. Duration: Unlimited; parties may withdraw on one yr notice.

• 10/10/67: Entered into force, including U.S. 1993: 122 nations are parties.

  Arms Limitation
PL-90/2.7. Non-Proliferation Treaty (Treaty on Non-Proliferation of Nuclear Weapons)

21 UST 483, TIAS 6839, 729 UNTS 161, 7 ILM 811 (1968)

7/1/68: 97 countries (including U.S., USSR) signed at Washington, London, Moscow. Each nuclear weapon State Party undertakes: not to transfer to any recipient nuclear weapons/explosive devices directly or indirectly; not to receive transfer of nuclear weapons/explosive devices directly or indirectly; peaceful nuclear activities of states that have not already developed nuclear weapons will not be diverted to weapons making. Verification: In accordance w/ Statute of Int'l Atomic Energy Agency, its safeguards system, through negotiation of agreements w/in 180 days from original entry into force. Promotes peaceful uses of nuclear energy w/ potential benefits of peaceful application for nuclear technology being made available to non-nuclear parties. Enforcement: 5 yrs after entry into force, conference held in Geneva to review operation of treaty; every 5 yrs thereafter, majority of parties may convene w/ objective of reviewing operation of treaty. Duration: 25 yrs after entry into force, parties shall convene to decide if treaty should continue indefinitely or be extended for additional fixed period(s).

• 3/5/70: Entered into force. 1975: Conference held in Geneva. 1993: 166 signatories. 4/95: UN NPT Review & Extension Conference.

See PL-553/50.1

  Arms Limitation
PL-91/2.7. Seabed Arms Control Treaty (Treaty on Prohibition of Emplacement of Nuclear Weapons, Other Weapons of Mass Destruction on Seabed, Ocean Floor and Subsoil)

23 UST 701, TIAS 7337, 10 ILM 146 (1972)

2/11/71: 87 countries signed at Washington, London, Moscow. Prohibits parties from emplacing nuclear weapons, weapons of mass destruction on seabed, ocean floor beyond 12-mile coastal zone.

- 2.8 -
Verification: questioning Party to consult w/ Party giving rise to doubts; if doubts persist, questioning Party to notify all Parties, seek cooperation on inspections. If questions remain, Party may refer matter to UNSC, which may act in accordance w/ UN Charter (PL-370/2.1). Extension: Parties to continue negotiations for prevention of arms race in regions covered by treaty, and for disarmament.

• 5/18/72: entered into force for U.S. 1977, 1983, 1989: Review conferences concluded each 5 yrs of treaty. 1990-96: UN Sec'y-Gen'l to report at regular intervals on potential impact of technological developments on treaty, verification of compliance. 1993: 97 signatories. 1996 or 1997: Next review conference.

  Arms Limitation
- 3.1 -
2. SECURITY COUNCIL RESOLUTIONS

PL-501/3.1. Resolution on Namibia (League of Nations); (UNSC Res 435, 1978); Constitutional Principles, UNSC Doc on Namibia, S/15287, Annex

1919: League of Nations entrusted former German colony of SW Africa (Namibia) to S Africa as Mandate Territory; S Africa pledged to prepare Namibia for self-determination. S Africa imposed apartheid system on Namibia. 1966: UN revoked Namibia Mandate, declared S African occupation illegal.

• 1978: S Africa agreed to administer independence process under UN Transitional Assistance Group (UNTAG) supervision; UNSC Res 435 outlined independence plan; listed conditions for elections: cessation of hostilities, repeal of repressive/discriminatory laws, repatriation of Namibian refugees/exiles, release of political prisoners; UN Special Rep to supervise, certify voter registration, election; restriction of S African/SW African Peoples Org (SWAPO) troops to bases, withdrawal of most S African troops, demobilization of citizen, paramilitary forces; free speech, movement, press during transitional period. 1982: Constitutional Principles for Namibia issued. 1988: Angolan, Cuban troops defeated S African military at Cuito Cuanavale. 1989: S Africa agreed to implementation. UN entrusted admr of registration, election to S African colonial Gov't; reduced UNTAG peacekeeping force from 7600 to 4500. 4/1/89: Implementation began w/ only 1000 UNTAG troops present; w/in 1 week 300 SWAPO soldiers killed, many executed after surrendering. Gov't repealed many security laws, left intact Proclamation AG 8 of 1980 (divided Namibia into white/non-white areas); introduced Public Gathering Act restricting meetings. 41,000 Namibian refugees repatriated. S Africa retained unilateral claim to Walvis Bay (Namibia's only port), authority to grant/withhold observers' visas. 6/89: S Africa published draft election law w/ violations of secrecy: traceable ballots, illiterate voters (60%) to be assisted by Gov't officials; corrected, released final law 3 weeks before election. Multinat'l Commn on Independence observed registration, election. 11/89: Election of Constituent Assembly took place: 97% turnout; SWAPO won 41 of 72 seats (less than 2/3 required for ratifying Const); Democratic Turnhalle Alliance (S Africa-backed) won 21 seats; 5 smaller parties split remainder. Assembly began process of drafting Const, moving toward full independence.

  Namibian Independence
PL-521/3.1. Resolution 660 on Iraq's Invasion of Kuwait (UNSC Res 660, 1990)

8/2/90: Iraq invaded Kuwait. U.S. proposed Res to UNSC: breach of int'l peace due to invasion under Arts 39, 40 (PL-370/2.1); UNSC condemns invasion, demands Iraq "withdraw immediately and unconditionally" all forces to positions as of 8/1/90; calls on Iraq, Kuwait to begin intensive negotiations for resolution of situation; decides to meet as necessary re further steps to ensure compliance.

- 3.2 -

• 8/2/90: UNSC adopted Res (14-0); Yemen abstained. 8/7/90: Pres Bush ordered 50,000 troops to Saudi Arabia over following mth.

See PL-521a/3.2, PL-521b/3.3, PL-521c/3.3, PL-521d/3.4; PL-522/9.1, PL-522a/9.1, PL-522b/9.1; PL-523/10.1

  Gulf War
PL-521a/3.2. Resolutions 661-677 re Iraq's Continuing Occupation of Kuwait (UNSC Resolutions 661-677, 1990)

8/2/90: Iraq invaded Kuwait, announced annexation of territory. (See PL-521/3.1). 8/6/90: UNSC considered Res 661: acting under Chap 7 (PL-370/2.1): Iraq failed to comply w/ Res 660, usurped legitimate gov't of Kuwait; imposed mandatory sanctions against Iraq to secure Iraq's withdrawal from Kuwait. Sanctions require all states to prevent: 1) import of all products originating in Iraq, Kuwait; 2) sale/supply by their nat'ls, from their territories of products to Iraq, Kuwait, not including supplies intended for medical purposes, food in humanitarian circumstances; 3) availability of economic resources to Iraqi Gov't, commercial, public undertakings in Iraq, Kuwait. Res also created UNSC Comm to report on progress, implementation of sanctions.

• 8/6/90: UNSC adopted Res 661 (13-0-2), Cuba, Yemen abstaining. 8/9/90: UNSC unanimously adopted Res 662: annexation of Kuwait invalid. 8/18/90: UNSC unanimously adopted Res 664 demanding safe passage from Kuwait, Iraq of third-country nat'ls, rescission by Iraq of orders to close diplomatic, consular missions in Kuwait. 8/25/90: UNSC adopted Res 665 (13-0-2), Cuba, Yemen abstaining, calling on states to engage in naval embargo to support sanctions imposed on Iraq under Res 661. 9/13/90: UNSC adopted Res 666 (13-2-0), Cuba, Yemen voting against, calling for assessment of food supply in Iraq, Kuwait for humanitarian purposes, noting Res 661 does not relate to medical supplies. 9/13/90: Iraqi troops occupied residence of French ambassador in Kuwait City, raided other Western missions in Kuwait. 9/13/90: UNSC unanimously adopted Res 667 condemning actions taken by Iraq against diplomatic missions, personnel in Kuwait. 9/24/90: UNSC unanimously adopted Res 669 calling on Sanctions Comm established under Res 661 to examine requests for assistance by states under Art 50 (PL-370/2.1). 9/25/90: UNSC adopted Res 670 (14-1-0), Cuba voting against: sanctions imposed under Res 661 include all means of transport including aircraft. 10/29/90: UNSC adopted Res 674 (13-0-2), Cuba, Yemen abstaining: demanded Iraq: 1) stop taking third country nat'ls hostage; 2) end mistreatment of Kuwaiti citizens; 3) protect diplomatic, consular missions in Kuwait; requested Sec'y-Gen'l use offices to achieve aims. 11/28/90: UNSC unanimously adopted Res 677: condemned Iraq's attempts to change demographic composition of Kuwait, destroy civil records; requested Sec'y-Gen'l to keep copy of Kuwait's population registration as of 8/1/90.

See PL-521/3.1, PL-521b/3.3, PL-521c/3.3, PL-521d/3.4

  Gulf War
- 3.3 -
PL-521b/3.3. Resolution 678 on Use of Force in Gulf (UNSC Res 678, 1990)

8/2/90: Iraq invaded Kuwait. See PL-521/3.1, PL-521a/3.2. Iraq failed to comply. 11/29/90: UNSC discussed Res 678: demanding Iraq fully comply w/ Res 660, 661-677, allowing Iraq one final opportunity, authorizing member states to "use all necessary means" to uphold Res 660, restore int'l peace in area unless Iraq does so itself on/before 1/15/91.

• 11/29/90: UNSC approved Res (12-2-1), Cuba, Yemen voting against; China abstaining. Iraq did not withdraw. 1/16/91: Ground war began in Gulf between Iraq, coalition of military forces from 34 nations cooperating w/ Kuwait.

See PL-521/3.1, PL-521a/3.2, PL-521c/3.3; PL-522/9.1, PL-522a/9.1, PL-522b/9.1; PL-653/50.7

  Gulf War
PL-521c/3.3. Gulf War Cease-Fire Resolution 687 (UNSC Res 687, 1991)

8/2/90: Iraq invaded Kuwait. (See PL-521/3.1; PL-521a/3.2; PL-521b/3.3). 1/16/91: War broke out in Gulf between Iraq, coalition of military forces from 34 nations cooperating w/ Kuwait. 2/28/91: U.S., allied forces announced cease-fire; Iraq stopped combat. 4/3/91: Belgium, France, Romania, UK, U.S., Zaire sponsored Res 687, setting terms for permanent cease-fire in Gulf: 1) Iraq, Kuwait respect 1963 int'l boundary; 2) established demilitarized zone, requested Sec'y-Gen'l to submit plan for deploying UN observer group to monitor zone; 3) Iraq unconditionally to accept destruction/removal of all chemical, biological weapons, ballistic missiles w/ range greater than 150 km; undertake not to use, develop such weapons including nuclear weapons; Iraq to submit declaration of locations of such weapons to Sec'y-Gen'l w/in 15 days; Int'l Atomic Energy Agency (IAEA) to inspect Iraq's nuclear capabilities, submit plan to UNSC for destruction/removal w/in 45 days; 4) Sec'y-Gen'l to report to UNSC steps taken to facilitate return of Kuwaiti property seized by Iraq; 5) reaffirmed Iraq's liability under int'l law for loss, damage, injury to foreign gov'ts, nat'ls, corps resulting from invasion of Kuwait; created compensation fund, overseen by admr comm, to pay claims against Iraq, Iraq's contribution to fund to be based on percentage value of petroleum exports, considering humanitarian needs, payment capacity; 6) ended prohibition against sale/supply to Iraq of food, materials, supplies (not including weapons) essential for civilian needs; continued prohibition on import of Iraqi products until Iraq complied w/ Res; 7) Iraq to cooperate w/ Int'l Red Cross to facilitate repatriation of Kuwaitis, third-country nat'ls; 8) Iraq to inform UN it would not commit/support int'l terrorism; 9) formal cease-fire would enter into force when Iraq officially notified Sec'y-Gen'l of acceptance of Res 687.

• 4/3/91: UNSC adopted Res (12-1-2), Cuba against; Ecuador, Yemen abstained. 4/6/91: Iraq officially accepted terms of Res. 4/9/91:

- 3.4 -
UNSC established UN observer mission to monitor border. 4/18/91: Iraq submitted to IAEA declaration of locations, amounts, types of nuclear weapons, facilities, related material. 4/22/91: UN named 21-member Special Comm on Iraqi disarmament. 5/17/91: IAEA submitted plan for destroying, removing weapons; nuclear weapons, related material not to be destroyed in Iraq, IAEA to take control for removal. 5/14-22/91: Team of 34 experts under Special Comm supervision w/ Iraqi cooperation undertook first on-site inspection of nuclear facilities. 6/23/91: Second group of 18 experts began second inspection; IAEA reported Iraqi military authorities denied access to site. 6/28/91: UNSC requested Iraq grant inspection groups immediate access; Iraq denied access to military transportation facility, fired into air when UN inspection group attempted access. 6/30-31/91: UNSC sent mission to Iraq to discuss access, freedom of movement, safety issues re inspection groups in Iraq.

See PL-521/3.1, PL-521a/3.2, PL-521b/3.3

  Gulf War
PL-521d/3.4. Post Gulf War Resolutions 686, 689, 699, 700 (UNSC Res 686, 689, 699, 700, 1991)

8/2/90: Iraq invaded Kuwait. (See PL-521/3.1; PL-521a/3.2; PL-521b/3.3; PL-521c/3.3). 1/16/91: War began in Gulf between Iraq, coalition of military forces from 34 nations cooperating w/ Kuwait. 2/28/91: U.S., allied forces announced cease-fire, Iraq stopped combat. 3/2/91: Belgium, France, Romania, USSR, UK, U.S., Zaire sponsored Res 686: 1) Iraq to rescind annexation of Kuwait, accept liability for loss, damage, injury to Kuwait, third-party states, nat'ls; 2) Iraq to cease hostile, provocative action against Member States; 3) Iraq to provide UNSC information, assistance in identifying Iraqi mines, booby traps, chemical, biological weapons in Kuwait.

• 3/2/91: UNSC adopted Res 686 (11-1-3), Cuba voting against; China, India, Yemen abstaining. 4/9/91: UNSC considered Res 689: deploying UN Iraq-Kuwait Observation Mission (UNIKOM) to Gulf. 4/9/91: UNSC unanimously adopted. 6/17/91: UNSC unanimously adopted Res 699: Iraq should pay full cost of destruction of Iraqi weapons outlined in Res 687. 6/17/91: UNSC unanimously adopted Res 700, approving guidelines facilitating full implementation of arms embargo provisions of Res 687, requiring Sanctions Comm to monitor embargo, report to UNSC every 3 mths.

  Gulf War
PL-924/3.4. Re Israeli Deportation of Palestinian Civilians (UNSC Res 726, 790, 799, 1992)

1967-92: Israel reportedly deported 2,000 Palestinian civilians from occupied territories. 1/2/92: Israel decided to resume expulsions, including 12 "heavily implicated in organizing terror attacks."

• 1/6/92: After debate, UNSC unanimously adopted Res 726: 1) strongly condemned 1/2/92 decision; 2) reaffirmed applicability of 1949 4th Geneva Convention to all occupied territories. 1992: Middle East peace conference convened in Madrid, applauded by Sec'y-Gen'l, Comm on Exercise of Inalienable Rights of Palestinian

- 3.5 -
People. 11/20/92: Sec'y-Gen'l appointed Special Rep to conference. 11/25/92: UNSC adopted Res 790: renewed mandate of UN Disengagement Observer Force supervising cease-fire (Israel/Syria on Golan Heights) until 5/31/93. 12/17/92: Israel deported 400 Palestinians to Lebanon. 12/18/92: UNSC unanimously adopted Res 799: reaffirmed Res 726, condemned deportations. 12/25/92: Sec'y-Gen'l dispatched rep to help resolve impasse; unsuccessful; urged restraint during peace talks.

  Palestinians
PL-726/3.5. Statute of International Tribunal: Yugoslavia (UNSC Res 808, 2/22/93); (UNSC Res 827, 5/25/93); (Report of Sec'y-Gen'l)

Parties alleged "grave breaches" of 1949 Geneva Conventions, 1977 1st Additional Protocol (Art 2); specific violations of laws of war (Art 3). 5/25/93: UNSC passed Stat of Int'l Tribunal: Tribunal shall have power to prosecute persons committing genocide (Art 4); accused shall have rights (similar to rights of accused in ICCPR (PL-97/2.2), but no: stated standard of proof, standard of review, provision for ex parte affidavits/in camera proceedings to protect witnesses, "rape shield laws").

• Establishment of Tribunal, appointments of prosecutor, judges, proceedings pending.

Helsinki Watch, 485 5th Ave, NY, NY 10017-6104

See Bosnia, PL-731/5.4

  Genocide
- 4.1 -
3. GENERAL ASSEMBLY RESOLUTIONS

PL-468/4.1. Israeli Practices re Human Rights of Palestinian People (GA Res 44/48, 12/8/89)

Res proposed to UNGA calling for appointment of special commn to investigate Israeli practices affecting human rights of Palestinian people/other Arabs of occupied territories.

• 12/8/89: UNGA adopted res 44/48. Daya Perera appointed to chair special commn, start investigation immediately.

  Occupied Territories
PL-736/4.1. Code of Crimes Against Peace & Security of Mankind (UNGA A/CN.4/L.459; UNGA A/CN.4/L.459/Add.1 (1991))

7/91: Int'l Law Commn (ILC) considered titles and text of Arts 1-26 defining specific punishable crimes including: acts of aggression by State against another State; threats of aggression against State; intervention in affairs of State; colonial/alien domination; genocide; apartheid; mass violations of human rights; war crimes; recruitment, use, financing/training of mercenaries; int'l terrorism; illicit traffic in narcotic drugs; willful/severe damage to environment.

• 11/92: GA Res 47/33: Report of ILC on Work of 44th Session urged countries to present comments/observations on draft by 1/1/93. Pending.

  Crimes Against Peace
PL-739/4.1. Resolution on Necessity of Ending Economic, Commercial, Financial Embargo by U.S. Against Cuba (GA Res 47/19 (A/48/448) A/47/1.20/Rev.1)

UNGA considered resolution to refrain from promulgating, applying laws/measures affecting sovereignty of other states, as well as freedom of trade, shipping; to take prompt steps to repeal/invalidate such measures already in effect.

• 11/24/92: UNGA passed non-binding resolution (59-3), requested Sec'y-Gen'l to elaborate by report as to fulfillment of resolution; decided to include in agenda for 48th Session.

See PL-738/50.8;

  Rights of Cuba
- 5.1 -
4. INTERNATIONAL COURT OF JUSTICE CASES
a. DISPUTES BETWEEN PARTIES

PL-520/5.1. Australia and New Zealand v. France (Nuclear Test Cases)

1973 ICJ 105-106, 142; 1974 ICJ 253, 457

1966: France began atmospheric testing of nuclear weapons over French-occupied Polynesian islands. 5/9/73: Australia submitted application to ICJ under Gen'l Act for Pacific Settlement of Int'l Disputes Art 17 (1928), ICJ Stat Art 36, paras 1, 2, 37, instituting proceedings against France to stop further atmospheric nuclear tests in S Pacific: French tests caused measurable quantities of radioactive matter to be deposited on Australian territory; sought interim protection (1928 Gen'l Act Art 33, ICJ Stat Art 41, Rules of Court Art 66). 5/9/73: New Zealand submitted similar application. 5/16/73: France: ICJ lacked jurisdiction, refused to appoint agent, requested case be removed from list. 6/22/73: ICJ approved interim measures of protection: Stat Art 41. Australia requested France carry out such measures by avoiding testing nuclear weapons. 7-8/73, 6-9/74: France continued to carry out nuclear tests.

• ICJ decided written proceedings should first be directed to resolution of Ct's jurisdiction. 7/4-11/74: ICJ held public h'gs on jurisdiction, admissibility of Australia's application; France not represented. 6/8-10/11/74: French Gov't made numerous statements indicating intent to cease atmospheric nuclear tests following conclusion of 1974 series, to continue underground. 12/20/74: ICJ (9-6): public statements by French Gov't conveying intention to terminate atmospheric testing had practical effect of creating binding legal obligation, France required to follow course of conduct consistent w/ statements; Australia's, New Zealand's objectives accomplished, claims no longer valid, Ct need not give decision.

See PL-469/11.1; PL-554/85.8

  Nuclear Weapons Test Ban
PL-218/5.1. U.S. v. Iran 1980 ICJ Yearbook 3, 45; 19 ILM 553 (1980); 1980-81 ICJ Yearbook 126; (Iran-U.S. Claims Tribunal, Geneva 1981-91)

11/4/79: Iranian students took hostages at U.S. Embassy in Teheran. 11/7/79: Ayatollah Khomeini wanted deposed Shah returned to Iran before allowing U.S. talks on release of hostages. 11/17/79: Khomeini decreed release of black, female hostages. 11/29/79: U.S. filed application w/ICJ seeking release, protection of hostages, prosecution of those responsible. 12/9/79: Iran sent letter to ICJ; did not file pleadings or appear; argued ICJ should not hear case due to 25 yrs of U.S. interference in, exploitation of Iran, including CIA-aided 1953 coup d'etat restoring Shah to power; hostage situation was marginal, secondary aspect of overall problem.

• 5/24/80: ICJ: Iran breached obligations to U.S. under 1955 treaty; 1961, 1963 Vienna Conventions; Iran must: release hostages; ensure

- 5.2 -
safe exit; return embassy, docs; not try hostages; make reparations to U.S. 4/6, 5/1/81: U.S. sought discontinuance of suit. 5/12/81: ICJ recorded discontinuance. 1981-91: Iran-U.S. Claims Tribunal processed nearly 4000 claims in 3 Chambers (3 arbitrators each), decided corporate claims first, individual claims last; settled 2,780 smaller claims en masse, 250 on individual basis; dism'd 420 bank claims on jurisdictional grounds; decided 800 cases.

  Iranian Hostages
PL-43/5.2. Nicaragua v. U.S. 24 ILM 59, 246, 249 (1985); 1985-86 ICJ Yearbook 142-60, 25 ILM 1023 (1986); 1988-89 ICJ Yearbook 132; 1991-92 ICJ Yearbook 149; 49 Lawyers Guild Practitioner 14 (1992)

3/81-4/9/84: U.S. spent over $70 million to arm, supply mercenaries to fight against Nicaraguan Gov't. 4/6/84: U.S. Pres Reagan announced U.S. would not accept ICJ compulsory jurisdiction over Central American disputes for 2 yrs. 4/9/84: Nicaragua filed in ICJ Application Instituting Proceedings against U.S. w/ Annex A: Chronological Account of U.S. "Covert Activities" in/against Nicaragua, charging U.S. intervention, use of military force w/in its borders in violation of Art 2, para 4 (PL-370/2.1); OAS Charter Arts 18, 20; general, customary int'l law. U.S. filed brief contesting ICJ jurisdiction.

• ICJ accepted jurisdiction. 5/11/84: ICJ issued interim ruling (15-0): U.S. "should immediately" stop blocking Nicaraguan ports, laying mines; (14-1) should fully respect Nicaraguan sovereignty. 11/26/84: ICJ rejected U.S. argument denying jurisdiction. 1/85: U.S. announced it would not present defense, abide by decision. 9/12/85: ICJ heard case. 6/27/86: ICJ ruled (11-4): must apply "multilateral treaty reservation" in Stat of ICJ, Art 36, para 2, acceptance of jurisdiction by U.S. (8/26/46); (12-3): U.S. activities not justified as self-defense; U.S. training, financing, arming of contras, attacking Nicaraguan territory, overflights, U.S. mining of Nicaraguan harbors all breach of obligations under customary int'l law of nonintervention, not to use force, not to violate sovereignty, not to interrupt peaceful maritime commerce; (14-1): above acts violated U.S.-Nicaragua Treaty of Friendship, Commerce & Navigation (1/21/56); failing to notify of location of mines violated customary int'l law; producing 1983 manual on guerrilla war for contras encouraged acts contrary to general principles of humanitarian law; (12-3): U.S. trade embargo on Nicaragua violated 1956 Treaty; U.S. under duty immediately to cease all such activities; U.S. obligated to make reparations to Nicaragua, amount to be determined by parties; (14-1): failing agreement by parties, ICJ will determine reparations; U.S. not directly accountable for contra activities encouraged by CIA guerrilla-training manual. ICJ unanimously recalled both parties' obligation to resolve disputes in accordance w/ int'l law. U.S. immediately reaffirmed intention not to abide by ICJ ruling. Nicaragua made attempts to negotiate damages w/ U.S., failed; asked UNSC to act. U.S. vetoed UNSC action. Nicaragua asked ICJ to determine damages; ICJ set briefing schedule. Nicaragua submitted brief detailing over $12 billion damages; U.S. did not submit brief. 2/90: Chamorro elected Pres of Nicaragua. 4/5/90: Nat'l Assembly passed Law 92 establishing gov't obligation to continue case. 6/91: Nat'l

- 5.3 -
Assembly repealed Law 92. 9/91: Chamorro announced withdrawal of demand for damages; ICJ announced proceedings discontinued.

See PL-218/5.1

  Contra Aid
PL-467/5.3. Nicaragua v. Honduras 1986 ICJ Yearbook 551, 25 ILM 1293; 1986-87 ICJ Yearbook 129; 28 ILM 338 (ICJ 1988); 1992 ICJ Reports 222, 31 ILM 1260

7/28/86: Nicaragua sued Honduras: threats of force, military assistance to contras in transborder actions violated law, claimed ICJ jurisdiction under Bogotá Pact Art 31, under which signatories recognize compulsory jurisdiction. 8/29/86: Honduras claimed ICJ had no jurisdiction.

• 10/22/86: ICJ decided first pleadings to deal exclusively w/ jurisdiction, admissibility. 8/7/87: Central American presidents signed Esquípulas II peace accord; ICJ h'gs adjourned. 3/88: After Nicaraguan incursion, U.S. sent 3200 troops to Honduras. Nicaragua asked ICJ to reactivate proceedings. 6/88: ICJ held 6 public sittings. 12/20/88: ICJ (3-0): suit admissible under Bogotá Pact Art 31: "Contadora process" not such "direct negotiation through the usual diplomatic channels" as to exclude ICJ suit under Bogotá Pact Art 2; no such negotiations underway when Nicaragua filed suit, "Contadora process" having been concluded; ICJ had jurisdiction. Schurbel, Oda, Shahabuddeen, JJ, filed separate opinions. 4/21/89: ICJ set time limits for written proceedings on merits: 9/89 for Nicaragua, 2/90 for Honduras. 1991: Nicaraguan Parliament accepted Pres Chamorro's bill to withdraw claim against Honduras. 5/11/92: Nicaragua, taking into account parties' out-of-court settlement, decided to renounce further proceedings in ICJ. Honduras did not oppose discontinuance. 5/27/92: ICJ ordered discontinuance.

See PL-470/17.1

  Contra Aid
PL-309/5.3. UN v. U.S. (PLO Mission Closures)

(Applicability of Obligation to Arbitrate under UN Headquarters Agreement of 6/26/47, §21); 1988 ICJ 77 (ICJ 1988)

1947: UNGA granted permanent observer status to Palestine Liberation Org; PLO opened office in Manhattan. 12/16/87: U.S. Cong passed Anti-Terrorism Act (ATA) (22 USC §§5201-5203) barring PLO from receiving, spending funds, operating offices in U.S. 12/17/87: UNGA passed res declaring U.S. attempt to close PLO mission violated UN Headquarters Agreement, GA Res 169 (11), 11 UNTS 11, No 147 (1947), that assured diplomats unhindered access to UN. 2/29/88: Arab nations asked UNGA to seek ICJ ruling declaring U.S. attempt to close PLO mission violation of Headquarters Agreement. 3/21/88: ATA went into effect; U.S. sued in DC seeking injunction to close PLO mission at UN.

• 4/26/88: Ruda, ICJ Pres, issued 25-page opinion, held U.S. in violation of Headquarters Agreement, U.S. bound by §21 to submit to binding arbitration. Schwebel, ICJ judge (U.S.) joined opinion.

See PL-260/30.6; PL-259/30.6; PL-318/43.14

  Palestinians
- 5.4 -
PL-519/5.4. Islamic Republic of Iran v. U.S. (Aerial Incident of 3 July 1988)

1988-89 ICJ Yearbook 143; 1989-90 ICJ Yearbook 137; 1992-93 ICJ Yearbook 163

7/2/88: 2 surface-to-air missiles launched from USS Vincennes shot down Iran Air Airbus over Iranian territorial waters during Iran-Iraq war. U.S. Gov't insisted Vincennes fired in self-defense during attack by Iranian gunboats after giving repeated warnings to unidentified, hostile plane. 5/17/89: Iran filed application in ICJ instituting proceedings against U.S.: killing all passengers on board, refusing to compensate for damages, continuous interference w/ Persian Gulf aviation violated Chicago Convention on Int'l Civil Aviation (1944), Montreal Convention for Suppression of Unlawful Acts Against Safety of Civil Aviation (1971). Iran requested U.S. pay compensation set by Ct to Iranian Gov't for loss of plane, injuries suffered by country, families of those killed. 8/89: U.S. Gov't notified ICJ it would participate in case. 7/23/90: Iran filed written complaint.

• 1990: ICJ granted extensions of time to file. 4/4/91: U.S. filed preliminary objections to jurisdiction of Ct. 1991: ICJ granted Iran further extension. 12/18/91: ICJ asked for views of Int'l Civil Aviation Org; submitted.

  Iran-Iraq War
PL-731/5.4. Bosnia v. Serbia, Yugoslavia (ICJ 1993)

After break-up of Yugoslavia, widespread fighting, rape, torture, death camps, "ethnic cleansing". 1993: Bosnia accused Serbia, Yugoslavia of violating 1948 (see PL-364/2.1), asked ICJ: for emergency ct protection from ethnic Serb militiamen, Serbia; to support lifting arms embargo preventing Bosnia from receiving military aid.

• 4/1-2/93: Bosnia presented case before ICJ; Serbia, Yugoslavia denied charges: Serbia in Civil War. Presentation of extensive testimony awaited. 4/8/93: ICJ (13-1) issued interim order: Yugoslavia to do everything in its power to "prevent the crime of genocide" in Bosnia-Herzegovina, "in particular ensure that any military, paramilitary or irregular units...directed or supported by it...do not commit any acts of genocide"; did not address exempting Bosnia from arms embargo. Russia diss: lack of proof against Yugoslavia, ill-defined/vague requirements by Ct.

Prof Francis Boyle, U of IL Law School, 504 E Pennsylvania Ave, Champaign, IL 61820

See PL-726/3.5

  Genocide
- 6.1 -
b. ADVISORY OPINIONS

PL-711/6.1. Legality of Use of Nuclear Weapons in Armed Conflict (ICJ 1993, Gen'l List No 93)

8/6/45: U.S. dropped first nuclear weapon on civilian city of Hiroshima. 8/8/45: U.S., USSR, France, UK signed Nuremberg Principles: defining crimes against peace, crimes against humanity, war crimes. 8/9/45: U.S. dropped second nuclear weapon on Nagasaki. 1992: Int'l Physicians for Prevention of Nuclear War predicted total exchange of existing stockpiles of nuclear bombs could result in one billion or more casualties making human survival questionable. 6/14/93: World Health Org (WHO) asked ICJ for advisory opinion on legality of nuclear weapons under int'l law (UNGA Res that prohibit use of nuclear weapons as crime against humanity, violative of (PL-370/2.1): GA Res 1653 (XVI), UN GAOR, 16th Sess, Supp No 17, at 4, UN Doc A/5100 (1962); GA Res 2936, UN GAOR, 20th Sess, Supp No 31, at 5, UN Doc A/8730 (1972); GA Res 33/71B, 33 UN GAOR, Supp No 45, at 48, UN Doc A/33/45 (1978); GA Res 34/83G, 34 UN GAOR, Supp No 46, at 56, UN Doc A/34/46 (1979); GA Res 35/152D, 35 UN GAOR, Supp No 48, at 69, UN Doc A/35/48 (1980); GA Res 36/921, 36 UN GAOR, Supp No 51, at 64, UN Doc A/36/51 (1981); Res 37/100C, UN GAOR, Supp No 51, at 83 (1982); Res 38/75, UN GAOR, Supp No 47, at 69 (1983); Res 39/63H, UN GAOR, Supp No 57, at 70 (1984); Res 40/151F, UN GAOR, 40th Sess, Supp No 53, at 85 (1986); Res 42/39C, UN GAOR, 42nd Sess, Supp No 49, at 81 (1987); Res 43/76E, UN GAOR, 43rd Sess, Supp No 49, at 90 (1988); Res 44/117C, UN GAOR, 44th Sess, Supp No 49, at 80, (1989); Res 45/59B, UN GAOR, 45th Sess, Supp No 49, at 71 (1990); Res 46/37D, UN Doc GA/8307, at 127 (1992); Res 47/53C, UN Doc GA/8470, at 112 (1993); Laws of War; Nuremberg Principles; Right to Life under UDHR). Indonesia, on behalf of nonaligned movement (110 countries), drafted res on advisory opinion on legality of use/threat of use of nuclear weapons; issues: WHO's authority to raise nuclear weapons questions; should ct respond to question concerning security policy of nuclear weapons states; should ct conclude that nuclear weapons are inherently violative of int'l law, thereby making their use illegal?

• Pending.

Peter Weiss, Co-Pres, Int'l Assn of Lawyers Against Nuclear Arms, 633 3rd Ave, 14th Fl, NY, NY 10017

  Nuclear Weapons
- 7.1 -
5. SPECIALIZED AGENCY ACTIONS
a. INTERNATIONAL LABOUR ORGANIZATION

PL-836/7.1. Complaint against U.S. Gov't by Capitol Employees Organizing Group (CEOG) ILO Freedom of Association Comm Report No 248, #1130 (Vol LXX, 1987, Series B, No 1)

Capitol Employees Organizing Group (CEOG) filed complaint against U.S. Gov't: Senate restaurant employees sought exclusive bargaining rights; Sen, Sen restaurant admr harassed, discriminated against CEOG members. 9/83: in employer poll majority rejected collective bargaining, preferred existing restaurant management over contracting out to private firms. 3/9/85: similar problem in House. 7/30/84: CEOG notified House: substantial majority of House restaurant employees signed cards asking CEOG to be exclusive labor-management representative. 6/19/85: House told restaurant employees they would be fired, replaced w/ nonunion private employees. 7/19/85: Architect of Capitol employed same unfair labor practices. 5/16/85: Gov't reply: 3 bills to include Cong under provisions of fed'l labor law expired 1984. 10/23/85: Architect of Capitol improved grievance procedures; House employees given same protection, benefits as other fed'l employees. 2/7/86: U.S. sent memo to managers: supervisors may not interfere in any way w/ right to join union.

• 1987: ILO Freedom of Association Comm: 1) recommended U.S. Gov't recognize for collective bargaining purposes organizations representative of workers employed by U.S.; requested Architect of Capitol announce willingness to bargain collectively w/ organization representing Sen restaurant workers, to organize further ballot among workers; 2) recalled it is fundamental to freedom of association that workers enjoy adequate protection against all acts of anti-union discrimination re employment, protection especially desirable for trade union officials.

  Labor Unions
PL-675/7.1. Complaint against U.S. Gov't/Puerto Rico by Comm of Trade Union Orgs (CTUO), World Confederation of Labour (WCL) ILO Freedom of Association Comm Report No 259, #1420 (Vol LXXI, 1988, Series B, No 3)

8/13/87: CTUO filed complaint against U.S. Gov't/Puerto Rico: violations of trade union rights, ILO Convention on Freedom of Association: U.S./Puerto Rican Gov'ts prepare, maintain lists, files on individuals, unions described as "Separatists, Subversives"; use lists to discriminate unjustly, unconstitutionally influence ability to get employment benefits. 10/4/87: WCL joined complaint. 2/9/88: U.S. Gov't/Puerto Rico replied: civil suit pending in Puerto Rico Sup Ct re lists, cannot transmit observations, case is sub judice. 7/31/87: Puerto Rico Sup Ct: compiling files on individuals, orgs exclusively by political, ideological beliefs w/out link to criminal activity is unconstitutional; Puerto Rico must return docs in possession of police found in files opened for political, ideological beliefs.

- 7.2 -

• 1988: ILO Freedom of Association Comm: nat'l cts condemned Puerto Rican police practice of compiling blacklists including unionists, workers' orgs w/ no criminal investigation links; "blacklisting" trade union officials is serious threat to free exercise of trade union rights; recommended appropriate remedy guaranteeing Puerto Rican unionists protection against anti-union measures.

  Labor Unions
PL-837/7.2. Complaint against U.S. Gov't by United Mine Workers of America (UMWA), AFL-CIO, Miners' Int'l Federation (MIF) ILO Freedom of Association Comm Report No 262, #1467 (Vol LXXII, 1989, Series B, No 1)

7/28/88: UMWA filed complaint against U.S. Gov't: violation of trade union rights: enforcement procedures of U.S. labor law ineffective re Enoxy Coal Corp's unfair labor practices: refusal to bargain in good faith, subcontracting mining operations to nonunion cos, anti-union discrimination against union leaders, union Vice Pres dismissal to weaken union, hiring armed security guards to harass, intimidate union members. 9/2-8/88: AFL-CIO, MIF joined complaint. 10/26/88: U.S. Gov't replied: complaint fails to provide specific information that U.S. labor laws inadequate to safeguard freedom of association; labor negotiations voluntary, not required to bargain collectively if terms unacceptable (NLRA §§8(A)(3), (5), 8(D)); union failed to file w/ NLRB; re subcontracting, union failed to file NLRB grievance, arbitrator ruled in union's favor, 2 appellate cts rev'd arbitrator's award: grievance untimely, pending in U.S. 6th Cir Ct of App; procedures fair, available to both parties; union failed to file NLRB grievance for other complaints.

• 1989: ILO Freedom of Association Comm recommended: 1) complainant did not pursue NLRA adjudication procedures for complaints for dismissal of union leader, refusal to bargain in good faith; 2) regretted excessive length of appeals procedure for subcontracting mining operations allegation; 3) subcontracting accompanied by dismissals of union leaders/members can violate employment discrimination because of union membership, activity; 4) U.S. Gov't should inform Comm of final subcontracting complaint decision; 5) U.S. Gov't should draw attention of Ente Nazionale Idrocarburi/Enoxy Coal Corp of obligation of employers, trade unions to bargain in good faith; 6) satisfactory labor relations depend on parties' attitudes towards each other, mutual confidence; 7) U.S. Gov't should inform Comm on measures taken to improve labor relations at Enoxy Coal Corp, especially Pevler coal mining complex.

  Labor Unions
PL-834/7.2. Complaint against U.S. Gov't by AFL-CIO ILO Freedom of Association Comm Report No 278, #1543 (Vol LXXIV, 1991, Series B, No 2)

7/27/90: AFL-CIO filed complaint against U.S.: U.S. labor law, jurisprudence allow permanent replacement of economic strikers violating freedom of association, rights to organize, bargain collectively. 5/2/91: U.S. Gov't replied: replacement worker doctrine (NLRB v. Mackay, 304 US 333 (1938)) balances rights/interests of

- 7.3 -
workers/employers; replaced economic strikers remain employees, enjoy substantial reinstatement rights; employers prohibited from using replacement workers to oust striking union; decline in trade unionism, decrease in work stoppages in U.S. not attributable to replacement worker doctrine; no increase in use of replacement workers in recent years.

• 1991: ILO Freedom of Association Comm: unable to conclude w/ any degree of certainty whether employers increasing permanent replacement of economic strikers.

  Labor Unions
PL-833/7.3. Complaint against U.S. Gov't by AFL-CIO, Public Services Int'l (PSI) ILO Freedom of Association Comm #1557 Minutes

10/26/90: AFL-CIO filed complaint against U.S.: Title VII Civil Service Reform Act (CSRA 1978), many state actions violate basic rights of public servants to organize, bargain collectively: TX, GA stats; LA, NM, SC absence of stats; VA judicial, legislative cancellation of current collective agreements; TN discrimination against trade unions by refusing to grant check-off facilities because of nat'l affiliation. 12/18/90: PSI joined complaint. 5/15/92: Gov't replied: constitutional right to freedom of association applies to forming, joining, participating in union, not collective bargaining.

• After h'g, ILO Freedom of Association Comm recommended: 1) all public service workers other than those engaged in admr of state should enjoy collective bargaining rights; 2) Gov't should supply information on legislative situation in states mentioned; 3) priority should be given to collective bargaining in fullest sense possible as means for settlement of disputes arising in connection w/ determination of terms, conditions of employment in public service; 4) U.S. Gov't should transmit specific comments on alleged suspension of current collective agreements in VA, refusal to grant check-off facilities to independent unions in TN; 5) Louisville, KY, U.S. Naval Ordnance Station taking 4 yrs to settle collective agreement not conducive to sound industrial relations.

  Labor Unions
PL-835/7.3. Complaint against U.S. Gov't by United Food & Commercial Workers Int'l Union (UFCW), AFL-CIO, Int'l Federation of Commercial, Clerical, Professional & Technical Employees (FIET) ILO Freedom of Association Comm Report No 284, #1523 (Vol LXXV, 1992, Series B, No 3)

3/5/90: UFCW filed complaint against U.S. Gov't: violations of trade union rights: U.S. labor laws, enforcement do not adequately protect trade union, worker rights, including freedom of association, right to organize against anti-union conduct of certain employers; legal remedies prove ineffective when NLRB finds organizational rights violated; NLRA §§10(J), (L) treat trade unions, employers unequally. 3/13-4/9/90: AFL-CIO, FIET joined complaint. 10/19/90: U.S. Gov't replied: U.S. labor laws adequately protect trade union, worker rights, including freedom of association, right to organize (1st Amdt, NLRA §§1, 7, 8(A)(1), 10), in compliance w/ ILO

- 7.4 -
Conventions Nos 87, 98, ILO principles of freedom of association.

• 1992: ILO Freedom of Association Comm recommended U.S. Gov't: 1) guarantee access of trade union representatives to work-places, w/ due respect for rights of property, management, so trade unions can communicate w/ workers to apprise them of potential advantages of unionization; 2) draw attention of companies concerned to its conclusions in this case; 3) stress to all parties the need to develop harmonious labor relations on basis of mutual confidence when companies violate trade union rights; 4) ensure that workers, employers will be treated equally re unfair labor practices.

  Labor Unions
- 8.1 -
b. HUMAN RIGHTS COMMISSION

PL-832/8.1. Mohammed Khader v. U.S. (UN Commn on Human Rights) UN G/SO 215/1, USA (Geneva); (UN Compensation Commn)

2/13/91: During U.S. air raid bombing, Dr Khader's wife, 4 daughters killed in U.S. shelter. 2/13/92: Pl filed petition w/ UN Human Rights Commn charging U.S. w/ gross violations of laws of war.

• 1992: Pl filed petition for compensation for damages. UN Compensation Commn attorneys: Khader eligible under Commn's mandate to compensate all victims of Iraqi "unlawful invasion and occupation of Kuwait." Pending.

Beth Stephens, Jennifer M Green, José Luis Morín, CCR, 666 Broadway, 7th Fl, NY, NY 10012

  Gulf War
- 9.1 -
c. DISASTER RELIEF ORGANIZATION

PL-522/9.1. Gulf War Migrations, Wave I (UN Disaster Relief Org)

8/2/90: Iraq invaded Kuwait. 8/90: Hundreds of thousands of foreign workers living in Kuwait, Iraq fled to Jordan. Jordan requested help from UN.

• 8/29/90: UN Sec'y-Gen'l de Cuéllar designated UN Disaster Relief Org to coordinate w/ UN High Commr for Refugees (UNHCR), Int'l Org for Migration (IOM), Jordanian Red Crescent, Int'l Comm of Red Cross. 9/90: Aided by Jordanian funding, IOM organized 40 evacuation flights daily to repatriate 700,000 refugees to countries of origin. 10/90: UNHCR, IOM set up 9 transit camps in Jordan in cooperation w/ World Health Org, UN Children's Fund, UN Development Programme, UN Volunteers, UN Relief and Works Agency for Palestine Refugees, 37 NGOs.

See PL-522a/9.1, PL-522b/9.1; PL-523/10.1

  Gulf War
PL-522a/9.1. Gulf War Migrations, Wave II (UN Disaster Relief Org)

8/2/90: Iraq invaded Kuwait, causing hundreds of thousands of refugees to enter Jordan from Kuwait, Iraq (see PL-522/9.1).

• 1/11/91: Anticipating second surge of refugees at outbreak of war, UN Disaster Relief Org (UNDRO) requested $38 million to feed, shelter, repatriate 400,000 refugees in temporary camps in Syria, Turkey, Iran, Jordan. Nations responded w/ donations. UNDRO set up several camps stocked w/ 3 mths supplies. 1/16/91: War broke out between Iraq, coalition of military forces from 34 nations cooperating w/ Kuwait. 1-3/91: 65,000 refugees left Iraq for temporary refugee camps established by UN.

See PL-522/9.1, PL-522b/9.1; PL-523/10.1

  Gulf War
PL-522b/9.1. Gulf War Migrations, Wave III-Kurds (UN Disaster Relief Org); (UN High Commr for Refugees); 9/91 UN Chronicle 49

8/2/90: Iraq invaded Kuwait. 1/16/91: War broke out between Iraq, coalition of military forces from 34 nations cooperating w/ Kuwait. 2/28/91: U.S., allied forces announced cease-fire, Iraq stopped fighting. Iraqi Kurds began fleeing toward Turkey, Iran, totalling 1.1 million refugees.

• 4/5/91: UN Disaster Relief Org (UNDRO) announced emergency appeal for $137 million to aid Kurds. UNSC adopted Res 688 demanding Iraq end repression of Kurdish civilians, insisting Iraq allow int'l humanitarian orgs access to all. 4/9/91: UNDRO released new urgent refugee plan, requesting $400.2 million to assist 1-5 million refugees. 4/16/91: U.S. announced intent to send 10,000 troops to build

- 9.2 -
refugee camps for Kurds in northern Iraq. 4/18/91: Iraq, UN signed Memo of Understanding at Baghdad, requiring Iraq to facilitate safe passage of relief supplies, agree to humanitarian presence in Iraq. 5/25/91: Subsequent agreement allowed deployment of 500 unarmed UN guards to Iraq. 6/91: UN began repatriating Kurds. 6/26/91: UN High Commr for Refugees, U.S. agreed to retain U.S. troops in Iraq to guarantee security to Kurdish refugees throughout repatriation process.

See PL-522/9.1, PL-522a/9.1; PL-523/10.1

  Gulf War
- 10.1 -
d. COMPENSATION COMMISSION

PL-523/10.1. UN Gulf War Compensation Fund (UN Compensation Commn); 9/91 UN Chronicle 13

8/2/90: Iraq invaded Kuwait. 1/16/91: War began in Gulf between Iraq, coalition of military forces from 34 nations cooperating w/ Kuwait. 2/28/91: U.S., allied forces announced cease-fire; Iraq stopped combat. Kuwait's reconstruction estimated at $100 billion, damage to nat'ls estimated at $70 billion. 4/3/91: UNSC: aff'd Iraq's liability under int'l law for loss, damage, injury to foreign Gov'ts, nat'ls; recommended creation of Compensation Fund (see PL-521c/3.3) to handle claims of displaced guest workers, lost resources, special hardship pleaded by 21 states under Art 51 (PL-370/2.1).

• 5/20/91: UN created Compensation Fund in Geneva to be administered by UN Compensation Commn: 1) Governing Council of 15 representing 15 UNSC members; 2) Secretariat to administer Fund; 3) Commrs to resolve claims presented to Commn, drawn from register of experts in law, accounting, insurance, finance, environment; Commn requires Gov'ts to submit consolidated claims, provides for Iraq's contribution to fund based on percentage of oil revenues. Governing Council issued criteria for expedited processing of urgent claims to provide immediate relief for: 1) departure from Iraq, Kuwait; 2) personal injury; 3) death; set fixed levels of compensation, ie, $4,000 for claims based on departure. Work proceeding.

See PL-521/3.1, PL-521a/3.2, PL-521b/3.3, PL-521c/3.3, PL-521d/3.4; PL-522/9.1, PL-522a/9.1, PL-522b/9.1

  Gulf War
- 11.1 -
e. INTERNATIONAL ARBITRATION TRIBUNAL

PL-469/11.1. Stichting Greenpeace Council v. France (Rainbow Warrior Arbitration)

(Int'l Arbitration Tribunal, Geneva)

7/10/85: Greenpeace sailed flagship Rainbow Warrior to lead protest against French underground nuclear testing on S Pacific island of Muruora. French secret service agents sank ship w/ explosives in Auckland Harbor. Pls sued for damages. Parties agreed to arbitrate. Pls raised int'l law, liability of secret services, tort law, damages.

• 10/2/87: Tribunal awarded Pls $8.16 million (U.S.), including $1.2 million aggravated damages in proceedings, text of award held confidential under arbitral agreement.

Lloyd N Cutler; Duncan Currie, Greenpeace Int'l

See PL-554/85.8

  Nuclear Weapons Protest
- 12.1 -
f. OTHER AGENCIES

PL-930/12.1. U.S. re Special Committee on Colonial Peoples (UN Special Comm on Colonial Peoples 1992); UN Chronicle (6/92, p79)

Special Comm on Situation re Implementation of Declaration on Granting of Independence to Colonial Countries & Peoples discussed issues: S Africa, apartheid, Trust Territory of Pacific Islands, Puerto Rico, military activities in U.S. territories.

• 2/4/92: U.S. sent letter to UNGA Pres: urging Special Comm to reform its work, stop taking up such "inappropriate" issues, "set aside ... past ... practices focus on ... outmoded agenda."

  Colonial Independence
PL-727/12.1. Re Karoshi in Japan (UN Human Rights Comm 1993)

Nat'l Defense Counsel for Victims of Karoshi (death from overwork), Nat'l Inst of Public Health, labor unions prepared documentary film/other documents re 10,000 deaths/yr from overwork, eg, 100-200 hrs overtime/mth in subsidiary plants supplying parts to Toyota; 1989: Japanese production workers averaged 2,159 hrs/yr, W German 1,638, French 1,636; filed w/ Human Rights Comm in preparation for Comm dialogue w/ Japanese Gov't on its report under (see PL-97/2.2).

• 5/93: Human Rights Comm received documentation. Comm h'g pending.

  Labor Rights
- 17.1 -
II. REGIONAL — AMERICAS

A. AGREEMENTS

PL-89/17.1. Latin American Nuclear Free Zone Treaty (Tlatelolco Treaty for Prohibition of Nuclear Weapons in Latin America)

22 UST 762, TIAS 7137, 634 UNTS 364, 6 ILM 521 (1968); 28 ILM 1400 (1989)

2/14/67: signed at Mexico City. Parties agreed to limit spread of nuclear weapons by preventing their introduction into Latin America; to use exclusively for peaceful purposes nuclear material, facilities under their jurisdiction, to refrain from participating in testing, use, manufacture, production, possession or control of any nuclear weapon. Enforcement: Parties to negotiate problems w/ Int'l Atomic Energy Agency; to establish org to ensure compliance: Agency for Prohibition of Nuclear Weapons in Latin America. Duration: permanent.

• 4/22/68: Entered into force. 1993: 26 nations are parties.

PROTOCOL I: Calls on nations outside treaty zone to apply denuclearization provisions of treaty to their territories in zone.

• UK, Netherlands ratified; France, U.S. only signed.

PROTOCOL II: Nuclear weapons states undertake to respect denuclearized status of zone, not to contribute to acts involving violation of obligations of parties, not to use/threaten to use nuclear weapons against contracting parties.

2/14/67: Signed at Mexico City, adhered to by France, China, UK, U.S., USSR.

• 5/12/71: Entered into force for U.S., which included understandings, declarations in instrument at ratification (22 UST 760). 1990: 25 signatories.

  Arms Limitation
PL-470/17.1. Central America Peace Initiative (Esquípulas II); (Arias Peace Plan)

5/86: 5 Central American Pres met, began peace process: Cerezo (Guatemala), Arias (Costa Rica), Hoyo (Honduras), Cristiani (El Salvador), Ortega (Nicaragua).

• 8/7/87: 5 Pres signed accord calling on each country to: negotiate cease-fires in civil war, grant amnesty to political prisoners, end aid to guerrillas, promote democracy/reconciliation, encourage refugees/exiles to return. UN began effort to raise $310 million for refugees; European Community pledged to finance start-up of Central American parliament envisaged in Plan. 2/89: 5 Pres met in El Salvador: created Commn on Environment and Development to regulate use of natural resources. 8/89: 5 Pres met to monitor progress: civil wars continued but did not engulf region; aid to guerrillas largely ended; outlet to negotiated solutions opened; Nicaragua Gov't/opposition established election, amnesty plan; strong Guatemala military threatened democracy; oligarchy, violence continued in El Salvador.

  Central America Peace
- 18.1 -
B. CASES

PL-115/18.1. Disabled Peoples Int'l, Human Rights Comm of Int'l Disability Law, Inc for Residents of Richmond Hill Insane Asylum v. U.S. OAS Inter-American Commn on Human Rights 1986-87 Annual Report, Washington, DC

8/24/83: U.S. bombed Richmond Hill Insane Asylum in Grenada, West Indies, killing approximately 20 patients, wounding unascertained number. 11/5/83: Pets filed petition to testify before Commn: bombing violated American Declaration of Rights and Duties of Man (Arts I, XI), urged Chairman of Human Rights Commn to take provisional measures to avoid irreparable damage to persons bombed out in accordance w/ Regs of Commn (Art 26.3); to hold h'g. U.S. admits bombing occurred. Pets alleged: bombing in violation of (PL-370/2.1), OAS Charter, 1949 Geneva Conventions Art 16-20, not subject to military necessity or military error defenses, exhaustion of remedies in U.S.

• 4/17/86: Commn found exhaustion, cause of action stated, granted admissibility of testimony—first time in case against U.S. 1988: OAS working out liability, in negotiation w/ U.S. for aid to ameliorate damages: funds for new hospital, equipment, etc.

Rights Comm of Int'l Disability; Karen Parker; James Donald, Dept of Rehabilitation

  Grenada Invasion
PL-49/18.1. Valentín Cruz García v. U.S. (OAS Inter-American Commn on Human Rights, Washington, DC)

3/12/84: INS apprehended 3 Pets-Salvadoran citizens. 6/28/84: Pets filed request for Commn to issue declaratory opinion stating their right to "non-refoulement" to El Salvador while hostilities, human rights violations continue.

• Canada agreed to be asylum country, not threatening refoulement, not OAS signatory. Case moot as to U.S.

Karen Parker, 154 5th Ave, San Francisco, CA 94118

  Asylum
PL-61/18.1. Central Valley Equal Rights Council v. U.S. (OAS Inter-American Commn on Human Rights No 9447, Washington, DC)

10/12/82: Margarito Lupercito Deanda, 17 yr-old agricultural laborer near Westley, CA, tried to elude U.S. Border Control agents during farm/ranch operation by jumping into Delta Mendota Canal; drowned. Council sued challenging INS practice of raiding farms, ranches bordered by waterways to interrogate/apprehend aliens, failing to give agents life-saving training/equipment; since 1974, 13 Mexican, Guatemalan nat'ls drowned; U.S. Gov't practice violates American Convention on Human Rights, Arts I, XVIII, XXV, XXVI, and Arts II, VI, VII, XVII. 2/27/85: U.S. replied: Pet failed to exhaust domestic remedies; complaint does not state violation of American Declaration of Rights of Man.

• 7/1/85: Commn found petition inadmissable: U.S. not party to

- 18.2 -
American Convention but to American Declaration of Rights and Duties of Man; complainant failed to state facts which constitute violation of American Declaration because U.S. Border Patrol conducted lawful search operations for undocumented aliens.

Stephen Rosenbaum, New College Law School, 50 Fell St, San Francisco, CA 94102

  Border Control
PL-331/18.2. Velásquez v. Honduras (OAS Inter-American Ct of Human Rights, Washington DC, 1988)

1981-82: 2 Honduran civilians, Saul Godínez, Manfredo Velásquez Rodríguez, "disappeared" in Honduras. 1985: Velásquez' family filed petition against Honduras in OAS Inter-American Commn. After h'g, Commn held for Velásquez. Commn filed for de novo review. 1986: Honduras accepted Ct's jurisdiction.

• 10/87, 1/88: Ct heard testimony of 12 witnesses, oral arguments by Honduran Gov't, Inter-American Commn. 7/29/88: Ct unanimously (7-0) rejected allegation of failure to exhaust domestic legal remedies; declared Honduras violated obligations under American Convention on Human Rights to ensure right to personal liberty (Art 7), humane treatment (Art 5), life (Art 4, Art 1 (1)); ordered Honduras to pay damages to victim's family, in Ct's first verdict since creation in 1979 finding a State Party in violation of convention. Honduras announced it would comply.

  Disappeared
PL-526/18.2. Salas v. U.S. (OAS Inter-American Commn on Human Rights #10573)

12/20/89: U.S. invaded Republic of Panama: killed over 2,000 Panamanians, made 18,000 homeless according to Panamanian human rights orgs. 70 civilian Pls filed complaint before OAS Commn seeking: ruling on illegality of invasion under int'l law; compensation for intervention, deaths, injuries, human rights violations; investigation of damages.

• 8/90: Commn preliminarily accepted case, requested U.S. reply. U.S. reply objected to jurisdiction, admissibility. 6/91: Pls responded. 2/93: oral argument; pending.

José Luis Morín, Beth Stephens, Michael Ratner, CCR, 666 Broadway, 7th Fl, NY, NY 10012

  Panama Invasion
PL-279b/18.2. Dispute Concerning Responsibility for Deaths of Letelier and Moffitt 30 ILM 412 (Chile-U.S. Commn for Settlement of Disputes 1991); 31 ILM 1 (1992)

9/21/76: Orlando Letelier-Chilean exile leader/ambassador under Allende Gov't assassinated in Washington, DC. 8/78: Pls-relatives sued: Def-Gov't directed assassination. See PL-279/30.1. 11/5/80: Green, DJ, DC DC, issued default judgment: Gov't, agents of Pinochet responsible for assassination; ordered $2.9 million damages. Def did not respond. Pls attempted to pierce corporate veil, collect from Chile nat'l airlines (LAN) in NY; unsuccessful. See

- 18.3 -
PL-279a/33.3.

• 1988: U.S. State Dept espoused Pls' claim, demanded payment from Def. 1/12/89: U.S. invoked 1914 Treaty for Settlement of Disputes Between U.S., Chile. 6/11/90: Chile agreed to pay reparations to Pls, w/out admitting liability; amount to be determined by Commn of 5 arbitrators per 1914 Treaty; facilities of Commn to be provided by OAS Inter-American Commn on Human Rights. 10/4/91: U.S. delivered presentation. 11/7/91: Chile delivered presentation. 11/19/91: U.S. commented on Chile's presentation. 1/11/92: Commn applied standard: awarded $2.6 million to Pl-widow, others injured.

Prof Michael E Tigar, Lynne A Bernabei, Samuel J Buffone, 1001 Pennsylvania Ave, Washington, DC 20004

See PL-279/30.1, PL-279a/33.3; PL-126/-20.2

  Government Responsibility
- 20.1 -
III. UNITED STATES

A. CRIMINAL COURT DECISIONS
1. FEDERAL
a. CASES WON AT TRIAL COURT LEVEL

PL-15/20.1. U.S. v. Lee Lorch (SD OH, W Div, Civ #3185)

9/15/54: Def-Fisk U prof subpoenaed by subcomm of Comm on UnAmerican Activities (HUAC) investigating Communist infiltration in labor, education; asked if member of Communist Party (CPUSA) when attending anti-war American Youth Cong meeting in 7/41; whether CPUSA infiltrating American Federation of Teachers in 1953. Def testified not now member CPUSA, refused to answer questions, refused to invoke 5th Amdt privilege against self-incrimination. 2/24/55, 7/11/56: Def indicted: contempt of Congress (22 USC §192).

• At trial Def asserted question not pertinent to subject of inquiry ( 354 US 178). Cecil, DJ, acquitted Def: subcomm failed to identify issue under inquiry w/ adequate clarity, failed to explain pertinence of question at issue, therefore Def had no opportunity to fairly determine whether he was w/in rights in refusing to answer.

  Cold War Inquisition
PL-130/20.1. U.S. v. Anthony Russo, Daniel Ellsberg (Pentagon Papers Case)

448 F2d 369 (9th Cir 1971); stay denied 92 SCt 4 (1971); 409 US 1013 (1972); (CD CA No 9373-WMB, 1973); Ginger, "Pentagon Papers Case Collection" (MCLI 1975)

10-11/69: Defs Ellsberg, Russo copied Pentagon Papers, secret DoD study of U.S. involvement in Vietnam. 11/69: Ellsberg gave copy to Chairman of U.S. Sen Foreign Relations Comm. 6/13/71: New York Times began publishing Pentagon Papers, sued by U.S. to stop. 6/30/71: USSC upheld right to publish (403 US 713 (1971)). 6/30/71: U.S. indicted Ellsberg for theft, espionage. 12/29/71: Grand jury issued second indictment charging Russo as co-Def, conspirator.

• Spring 1972: Trial began, jury selected. 7/72: Defs alleged illegal wiretap by Gov't of Def, Def's lawyers, moved for dismissal. Byrne, DJ, denied motion, suspended trial pending Defs' interlocutory appeal; USSC denied. 9/12/72: Byrne, DJ, declared mistrial, ordered selection of new jury. New trial began 1/17/73. Defs filed motions to dismiss charges: Gov't misconduct, including: 1) suppression of evidence; 2) invasion of physician-patient relationship; 3) illegal wiretapping; 4) destruction of relevant documents; 5) disobedience of judicial orders; confidential meetings between Ehrlichman (for Pres Nixon) and Byrne, DJ, offering J important Gov't admr position. 5/11/73: Byrne, DJ, granted motion to dismiss as only remedy assuring due process, fair administration of justice.

Leonard B Boudin, Dolores Donovan, Charles Nesson, Leonard Weinglass

  Vietnam War
- 20.2 -
PL-20/20.2. U.S. v. Louis Steinberg 478 FSupp 29 (ND IL 1979)

3/11,18/71: Def testified before grand jury, learned of criminal investigation into his business activities. 4/7/71: Def fled to Rhodesia, later registered as resident alien, established residency. 4/30/71, 2/16/72: Def indicted: conspiracy to defraud bank, conspiracy to defraud U.S., embezzlement, etc. Shortly before 2nd indictment, U.S. Atty sought extradition through State Dept. U.S. had no extradition treaty w/Rhodesia; UNSC Res 277 (3/18/79) called on Member States to deny any recognition to Rhodesia. State Dept made only informal extradition request; held that conditions imposed by Rhodesia amounted to recognition. 7/13/78: Def returned to U.S. voluntarily.

• 10/3/79: Leighton, DJ, dism'd Def's motion to dismiss indictment as violation of 6th Amdt right to speedy trial: Def had sought asylum in Rhodesia, State Dept required to observe (PL-370/2.1), UNSC Res 277; Def could not complain delay deprived him of rights.

Paul Bradley, 343 S Dearborn St, Chicago, IL

  Extradition
PL-153/20.2. U.S. v. Elder (SD TX, Cr No B-84-276)

Late 1984: Def drove 3 Salvadorans to bus station; indicated: transporting illegal aliens.

• Def filed affidavits detailing tumult in life of Vela, DJ, pressure on him re his church, due to community's deep concern about sanctuary movement, extra-judicial bias in his rulings. Vela, DJ, recused self, under 28 USC §144. Head, DJ, denied 50 of 53 pretrial defense motions, including 1st Amdt, int'l law defenses, limiting trial to issue: whether Def's action of driving refugees to bus station furthered their illegal presence in U.S. 1/24/85: Jury acquitted.

Jim Larsen, Dennis Riordan, Ellen Yaroshevsky, Michael Altman, Daniel Sheehan, Lisa Brodyaga, Steve Cooper

See PL-154/23.9

  Sanctuary
PL-139/20.2. U.S. v. Braden (WD KY)

6/85: 29 demonstrated in office of U.S. Sen as part of Pledge of Resistance, Louisville; arrested. At arraignment, Defs announced intent to use Nuremberg, necessity, 1st Amdt defenses: freedom to speak includes freedom to be heard; today only way to be heard is to act.

• U.S. Atty dropped charges before trial.

Anne Braden, pro se

  Contra Aid
PL-126/20.2. U.S. v. Armando Fernández-Larios 636 F2d 621 (DC Cir 1980); (DC DC 1987)

9/21/76: Orlando Letelier-Chilean exile leader/ambassador under Allende Gov't assassinated in Washington, DC. 8/1/78: U.S. indicted Def-captain, Chilean secret police (DINA), requested extradition from

- 20.3 -
Chile; Chilean Gov't refused. 1987: Def came to U.S. voluntarily.

• 2/5/87: At trial, Def implicated: Chilean Pres Pinochet in covering up assassination, former DINA chief, chief of operations in directing assassination. Def pleaded guilty: accessory after the fact to murder. Def entered fed'l witness protection program. 5/6/87: Parker, DJ, sentenced: 7 yrs prison. Pending: Request for extradition of former DINA heads; trial of former DINA heads in Chile. Fed'l law prohibits U.S. aid, military sales to Chile until U.S. Pres certifies Chile has taken "appropriate steps" to bring those indicted to justice.

Joseph diGenova, U.S. Atty

See PL-279/30.1, PL-279a/33.3, PL-279b/18.2

  Chile Junta
PL-137/20.3. U.S. v. Martínez, Remer-Thamert (DC NM, Cr #87-476)

8/86: Poet, Evangelical Lutheran minister walked across int'l bridge to Ciudad Juárez, Mexico; met 2 pregnant Salvadorans wishing to deliver babies in U.S., give them up for adoption; arranged for women's entry w/out documents to U.S.; returned to El Paso, picked up 2 women; drove them to Albuquerque. 12/10/87: Defs indicted: transporting illegal aliens (8 USC §1324(a)).

• 7/13/88: At jury trial, Def-poet claimed freedom of press denied; Def testified he heard Karen Parker lecture, took notes, motivated action. As expert witness, Parker testified to content of lecture: since there is war in El Salvador, civilians protected by Rules of Armed Conflict including right to seek, receive humanitarian assistance, also required by (PL-525/2.5, treaty ratified by U.S.); Defs had right to offer, provide such assistance to those protected by Conventions, act could not be criminalized; these civilians cannot be termed illegal aliens if protected by Conventions. DJ denied necessity defense, allowed "mistake of law" re Gov's 1986 Sanctuary Proclamation. 8/2/88: Jury acquitted.

Alice Hector, Karen Snell

  Sanctuary
PL-366/20.3. U.S. v. George Posey 864 F2d 1487 (9th Cir 1989)

1985: U.S. suspected Def of smuggling military plans to S Africa, obtained wiretap. 1987: Def's associate caught w/ military manuals bound for S Africa. Def arrested: violating Comprehensive Anti-Apartheid Act (22 USC §5067), Arms Export Control Act (18 USC §371).

• 1988: Fernandez, DJ, convicted: 10 yrs, all but 4 mths suspended. 1/9/89: 9th Cir, Norris, CJ, aff'd: wiretap did not violate 4th Amdt rights.

  Apartheid
PL-367/20.3. U.S. v. Eddie Hatcher (ED NC #88-7-01-CR-3, 1988); (4th Cir 1988)

2/1/88: Def took 10 hostages at local newspaper to dramatize plight of local blacks, Native Americans. Def surrendered to fed'l authorities after negotiating w/ Gov, arrested: 1984 Anti-Terrorism Act violations:

- 20.4 -
conspiracy to commit overt acts against U.S., hostage-taking; weapons charges.

• 2/17/88: Dixon, DJ, denied bond. Def obtained counsel, appealed. 4/19/88: On reh'g, Boyle, DJ, denied bond. 7/2/88: 4th Cir rev'd, Def released on bond. 8/31/88: 4th Cir, en banc, vacated earlier order, returned Def to custody after manhunt. 9/26/88: Boyle, DJ, denied Def's request for continuance, started trial although Def lacked counsel. Jury trial: 9 blacks, 3 whites. Def proceeded pro se, asserted denial of counsel, called witnesses. 10/14/88: Jury acquitted on all counts.

Eddie Hatcher, pro se; William Kunstler, Barry Nakell, Ron Kuby, Stephanie Moore, 13 Gay St, NY, NY 10014

See PL-367a/28.18; PL-367b/49.6

  Native American Rights
PL-332/20.4. U.S. v. William Wardlaw 904 F2d 69 (DC Cir 1990)

6/7/88: Def came to aid of John Heid, protester being beaten by U.S. marshals at Washington, DC Fed'l Cthouse; both arrested: assaulting federal officer (18 USC §111).

• 6/8/88: Magis imposed stay-away order on Def. 6/13/88: Magis found "probable cause" to order Def to appear before grand jury. 6/21/88: DJ ruled stay-away order unconstitutional: Def "perfectly welcome" to enter cthouse; released Def, overturned stay-away order. 12/13/88: At trial on assault charge, DJ refused Def-Heid's motion to instruct jury that going limp could not constitute forcible conduct; jury acquitted Wardlaw, convicted Heid. 6/8/90: DC Cir, Buckley, CJ, aff'd.

Nina Kraut, Sebastian KD Graber, Washington, DC

See PL-332a/44.3

  Police Misconduct
PL-528/20.4. U.S. v. Allen Moss (DC MD, HM-88-2676)

1985-87: Def filed tax returns w/out paying full amount due: conscientious objector to supporting military programs. 6/88: IRS summoned Def; Def refused to provide requested information on assets: would expose Def to prosecution for evasion, nonpayment of taxes (26 USC §§7201, 7203), violate protection against self-incrimination (5th Amdt). IRS sought to enforce summons on DC: Def exposed to prosecution in tax returns, would not be further exposed by providing information on assets; Def not referred for prosecution (although IRS refused to grant immunity).

• 7/23/90: Murray, DJ, dism'd IRS petition to enforce summons: Def had reasonable fear of prosecution; information requested potentially incriminating.

  War Tax Refusal
PL-430/20.4. U.S. v. Flowers (ND TX 1989)

5/89: Kowalski, DoJ Deputy Section Chief, Civil Rights Div, led investigation re white supremacist activities. 7 Defs arrested. 5/89: Def-Wood,

- 20.5 -
sentenced to 10 yrs for vandalizing synagogue, fled; arrested on new charges.

• Defs Flowers, Cannon pleaded guilty to 1988 Civil Rights Act violations at Lee Park: intimidating/beating minorities; Def-Wood pleaded guilty to interstate flight to avoid prosecution/grand jury testimony.

  Racist Attacks
PL-275a/20.5. U.S. v. Secord (DC DC)

Def-retired Air Force Gen'l/private businessman used network of companies, "The Enterprise", to channel arms to Iran, money to Nicaraguan contras. Def took average 38% profit from arms sales (of $16 million profits from arms sales to Iran, $3.8 million reached contras), told Cong he was unaware North obtained money from "Enterprise."

• 11/8/89: Def pleaded guilty to lying to Congressional investigators. 1/24/90: sentence: 2 yrs probation.

  Iran/contragate
PL-275d/20.5. U.S. v. Hakim (DC DC)

Def-businessman worked as middleman in supplying arms to Iran, money to contras; kept $9 million profits in Swiss bank accounts; bought security fence for North from proceeds of arms sale to Iran.

• 11/21/89: Def pleaded guilty to misdemeanor charge of aiding, abetting supplementing North's income. Lake Resources-Def's co pleaded guilty to felony theft of Gov't property. 2/1/90: Def sentenced: 2 yrs probation, $5,000 fine.

  Iran/contragate
PL-678/20.5. U.S. v. Machala (ED MI 1990); Arab-American Times (12/90)

12/18/88-3/30/90: Def wrote 5 threatening, racially abusive letters to American-Arab Anti-Discrimination Comm in Detroit, Arab-American professor; enclosed warning for Arab-Americans to return to "own country", newspaper cartoon w/ threat to avenge death of Marine Lt Col Higgins; FBI arrested Def: mailing threatening letters. Def pleaded guilty.

• 12/11/90: Newblatt, DJ, sentenced Def: 6 mths jail, 3 yrs probation, $2,000 fine.

American-Arab Anti-Discrimination Comm, 1731 Connecticut Ave NW, Ste 400, Washington DC 20009

  Hate Crimes
PL-529/20.5. U.S. v. Al Mangan (ED WA No 91-0042A-01, 1991)

2/25/91: In demonstration protesting ground war in Iraq, Defs blocked entrance to Fed'l Cthouse in Spokane, 6 Defs did not move when ordered; arrested: failure to comply w/ lawful direction of Fed'l Protective Officer (41 CFR 101-20.304). Defs forfeited bail; Def-Mangan filed motion raising int'l law to justify protesting unlawful U.S. actions in Iraq: 1907 Hague Convention Re Laws, Customs of War on Land, 1949

- 20.6 -
(PL-525/2.5), London Charter/Nuremberg Principles, (PL-364/2.1).

• 5/3/91: DC dism'd: code section language too vague.

Al Mangan, pro se, W 2122 Dean, Spokane, WA 99201

See PL-525/2.5; PL-364/2.1

  Gulf War
PL-842/20.6. In re Joya-Martínez 947 F2d 1141 (4th Cir 1991)

1983: U.S. deported Def to El Salvador. 7/89: Def, case officer, Intelligence Dept, Salvadoran Army First Infantry Brigade "Death Squad", led troops in 2 murders of suspected members of Farabundo Martí Nat'l Liberation Front; Def fled to U.S.; U.S. arrested Def: reentry after deportation; convicted: 6 mths prison. 1989: U.S. rearrested Def (8 USC §1326 (1988)): extradition on murder charges; Def applied for political asylum: his superiors ordered him to murder. 5/20/90: Asylum h'g conducted: pending. 6/90: U.S. charged Def: illegal entry into U.S. w/out permission of Atty Gen'l after being arrested, deported from U.S.

• Hilton, DJ, convicted Def. 10/22/91: 4th Cir aff'd, Niemeyer, CJ: Def did not show visa prior to reentry; Def not entitled to evidentiary h'g on claims of prosecutorial vindictiveness.

Libby Cooper, El Rescate, 1340 S Bonnie Brae, Los Angeles, CA 90006

  Extradition
- 21.1 -
b. CASES WON ON APPEAL

PL-530/21.1. U.S. v. Dellinger (Chicago 7)

(ND IL Cr No 180, 1970); 472 F2d 340 (7th Cir 1972)

1968: Defs-members of Nat'l Mobilization Comm to End the War in Vietnam, Youth Int'l Party, arrested: 1) making speeches to incite riot at 1968 Democratic Nat'l Convention, 2) travelling in interstate commerce w/ intent to do so, conspiracy, under 1968 Anti-riot Act (18 USC §2101).

• 2/20/70: After jury trial before Hoffman, DJ, jury acquitted all Defs of conspiracy, acquitted 2 Defs of teaching use of incendiary device, convicted 5 Defs on 2 counts. Defs appealed. 2/8/72: 7th Cir, Fairchild, CJ, rev'd, remanded: while Act not unconstitutionally vague/overbroad 1st Amdt, where prosecution involved conflicts w/ police, generated extensive publicity, it was error to fail to make some minimal inquiry on voir dire into attitude of prospective jurors re protests against involvement in Vietnam War, relationships w/ law enforcement officers, exposure to pretrial publicity. U.S. did not retry any Defs.

Arthur Kinoy, Helene E Schwartz, Doris Peterson, William M Kunstler, Morton Stavis, CCR, 666 Broadway, 7th Fl, NY, NY 10012; William W Brackett, Thomas M Haney, Thomas P Sullivan, Chicago, IL; Stuart S Ball, Jr, Leonard I Weinglass, Newark, NJ

  Vietnam War
PL-124/21.1. U.S. v. Ahrendt (unreported 10th Cir 1981)

4/29/79: Defs protested nuclear weapons at Rocky Flats Nuclear Weapons Plant; arrested: trespass (42 USC §2278(a)).

• At jury trial, Defs argued necessity defense, invalidity of arrests: 1) arrest site not publicly designated; 2) Fed'l Govt's property interest insufficient to sustain trespass conviction; 3) arrest made on state, not fed'l property: U.S. w/out jurisdiction to make arrests. Jury convicted. 1/5/81: 10th Cir rev'd: convictions invalid; designation of boundaries in Fed'l Reg 4/13/79 failed to comply w/ provisions of 5 USC §551, 42 USC §7191).

John S Evangelisti, Jonathan L Olom, Timothy Correll

  Nuclear Weapons Protest
PL-22/21.1. U.S. v. Judith Berkan 648 F2d 1373 (1st Cir 1981)

5/19/79: Def-lawyer among group demonstrating on beach adjacent to U.S. Naval Station, Vieques, PR, against U.S. military occupation, bombing practice on the island; 21 arrested; trespass (18 USC §1382).

• At bench trial, Torruella, DJ, convicted Def; sentence: 6 mths, $500 fine. 1/22/80: Amicus brief submitted by NLG argued conviction should be rev'd on grounds of selective prosecution. 5/19/81: 1st Cir: Gov't failed to prove all elements of offense charged; rev'd conviction, dism'd charges: Gov't did not prove place of arrest was on Puerto Rican soil.

Martin R Stolar; Daniel L Alterman, Paul M Giulemetti, NY, NY

  Puerto Rico Protest
- 21.2 -
PL-152/21.2. U.S. v. Lynn Merkt (SD TX 1984); 764 F2d 266 (5th Cir 1985)

2/84: Def-worker at church-supported refugee center attempted to drive 2 Salvadoran aliens to INS office to file asylum claims under (PL-356/50.2, 8 USC §§1101(a)(42)(A), 1158, 1253(h)); arrested en route: conspiracy, transporting illegal aliens w/in U.S. (8 USC §1324(a)(2)).

• Jury convicted; Vela, DJ, sentenced: 90 days suspended, 2 yrs supervised probation. 6/18/85: 5th Cir rev'd: Def entitled to jury instruction: conviction dependent on proof Def willfully transported in furtherance of unlawful purpose; Def's belief aliens' qualifications for political asylum entitled them to legal status prior to asylum claim not permissible defense. Remanded for new trial. U.S. Atty dropped case.

Dennis P Riordan, Karen Leigh Snell

See PL-154/23.9

  Sanctuary
- 22.1 -
c. CASES WITH SUPREME COURT OPINIONS

PL-40/22.1. U.S. v. James Albertini 710 F2d 1410 (9th Cir 1983); rev'd 472 US 675 (1985)

5/16/81: Def distributed anti-war leaflets during open house at Hawaiian Air Force base, after having been previously barred from entering base; arrested: illegal reentry (18 USC §1382). Def argued 9-yr-old bar letter no longer valid, entered base legally: base open to public for open house.

• DJ convicted. 7/22/83: 9th Cir rev'd: Def's actions protected by 1st Amdt. 6/25/85: USSC rev'd (6-3), O'Connor, J: Def violated 18 USC §1382 by reentering base; enforcing bar letter did not violate 1st Amdt. Stevens, J (Brennan, Marshall, JJ) diss: §1382 not intended to prevent visit during open house. 3/6/86: 9th Cir aff'd conviction: enforcement did not violate Def's due process rights although no hearing on bar letter.

William A Harrison, Gima, Harrison & Matsouka, 707 Richards St, Honolulu, HI 96813; Yvonne B Chotzen

  Military Bar Order
PL-140/22.1. Wayte v. U.S. 549 FSupp 1376 (CD CA 1982); 710 F2d 1385 (9th Cir 1985); 105 SCt 1524 (1985)

7/2/80: Pres issued Proclamation #4771, 3 CFR 82 (1981), directing 18 yr-old men to register for draft under Military Selective Service Act (50 USC App §453). Pet refused, sent letters to Pres stating he would not register. Abiding by their "passive enforcement" policy, Selective Service sent several letters to Pet. Under "beg" policy, DoJ tried to persuade Pet to register or face prosecution. Pet refused; indicted: failing to register.

• DJ dism'd indictment: Gov't failed to rebut Pet's prima facie case of selective prosecution. 9th Cir rev'd: Pet failed to show Gov't focused investigation on him because of protest activities. 3/19/85: USSC aff'd (7-2): Gov'ts "passive enforcement", "beg" policies do not violate 1st, 5th Amdts. Powell, J (Brennan, J) diss. On retrial Pet pleaded guilty. 9/9/85: DJ sentenced Def: 6 mths house arrest at grandmother's home.

Mark D Rosenbaum, Dan Stormer

  Draft Registration
PL-535/22.1. U.S. v. Meléndez-Carrion; U.S. v. Gonzáles Claudio; U.S. v. Ojeda-Ríos, Victor Gerena 790 F2d 984, 804 F2d 7 (2nd Cir 1986); cert dism'd 107 SCt 562 (1986); 806 F2d 334 (2nd Cir 1986); 677 FSupp 1266 (DC CT 1987); 820 F2d 56 (2nd Cir 1987); pet for reh'g den 837 F2d 61 (1988); 846 F2d 167 (1988); 691 FSupp 588, 695 FSupp 649, 1369 (DC CT 1988); aff'd 875 F2d 17 (2nd Cir 1989); vacated, remanded 110 SCt 1845 (1990); 709 FSupp 52 (DC CT 1990); 922 F2d 934 (2nd Cir 1990); stay, cert den 111 SCt 1304, 2811, 2858 (1991); 996 F2d 302 (2nd Cir 1993)

9/12/83: Victor Gerena robbed $7.2 million from employer-Wells Fargo Bank, Hartford, CT; never seen again. 1985: FBI conducted

- 22.2 -
massive raids, searches/seizures throughout PR w/out notifying PR Gov't; arrested 13 members of Los Macheteros-Puerto Rican independence group: involvement in robbery. 8/28/85: Grand jury indicted 16, including 8 Defs: violating Hobbs Act, 18 USC §1951 (1982). 8/30/85: 7 Defs arrested in PR, 1 in TX; U.S. removed Defs to CT. 9/13/85: bail h'gs for 8 Defs; Gov't requested preventive detention for Defs: dangerousness, risk of flight (1984 Bail Reform Act, 18 USC §3141).

• 10/7/85: Eagan, U.S. Magis, ordered 4 Defs detained: flight/dangerousness, 1 on risk of flight, 1 on dangerousness, released 2 Defs on bail. 1985: Clarie, DJ, aff'd, rev'd. 5/2/86: 2nd Cir, Newman, CJ, remanded as to 2 Defs detained on dangerousness alone: 8 mths prolonged detention based on prediction of future dangerousness constitutes punishment w/out trial, violates 5th Amdt; aff'd as to remaining 6 Defs. 7/25/86: Clarie, DJ, on remand, allowed continued pretrial detention of 2 Defs based on risk of flight. 11/20/86: 2nd Cir vacated, remanded, Newman, CJ: constitutionality of pretrial detention under due process depends on length of detention, speculative nature of future detention, extent prosecution liable for delay, risk of flight: 14 mth detention partially Govt's fault, 2 Defs must be released on bail. 11/26/86: USSC dism'd cert. 1987: Clarie, DJ, released 4 co-Defs: continued detention of 2 other Defs as unacceptable flight risks does not violate due process. 6/2/87: 2nd Cir aff'd, Miner, CJ: Defs' motion for conditional release denied; projected 3 yrs pretrial detention can be constitutionally acceptable. 1987: At pretrial h'gs, DJ: most sections of search warrants over-broad, seizures under these unconstitutional. 1/88: Clarie, DJ: released 1 Def in renewed bail application, continued detention of last Def. 4/88: DJ, per curiam, rev'd as to last Def: continued detention violates 5th Amdt. 7/88: Clarie, DJ: hundreds of Gov't tapes (wiretaps, oral interceptions) inadmissable: Gov't erred in delaying sealing of tapes. 8/19/88: Cabranes, DJ: some tapes inadmissible: inaudible.

9/88: Trial of 5 Defs not affected by wiretaps: 1 acquitted, 2 convicted on minor charges, 2 on serious charges. 2/17/89: 2nd Cir aff'd, Oakes, CJ: tapes inadmissable. 4/30/90: USSC vacated, remanded (6-3), White, J: Ct of App must determine if FBI made good faith error in delaying sealing of tapes. Stevens, J (Brennan, Marshall, JJ) diss. 12/12/90: 2nd Cir: Gov't conceded error in sentencing 1 Def on both §659, Hobbs Act; Ct vacated §659, aff'd all other convictions. 3/18/91: USSC denied stay. 6/10-24/91: USSC denied cert. 2 untried Defs went underground. 3/92: 1 Def captured, charged: bail-jumping. DJ dism'd charges against 2 Defs. 4 Defs pleaded guilty; sentences: up to 5 yrs. In jury trial: 1 Def convicted; sentence: probation. 4-6/92: 1 Def tried in absentia; convicted; sentence: 55 yrs. 1/93: Def-bail jumper convicted; sentence: time served; Wells Fargo charges dism'd. 1993: 2nd Cir aff'd 1988 ruling on inaudible tapes.

William Kunstler, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Ronald L Kuby, Leonard Weinglass, NY; Michael E Deutsch

  Puerto Rico Independence
- 22.3 -
PL-371/22.3. U.S. v. René Martín Verdugo-Urquídez (SD CA 1988); aff'd 856 F2d 1214 (9th Cir 1988); rev'd 110 SCt 1056 (1990); (CD CA 1990); rev'd 939 F2d 1341, 30 ILM 1197 (9th Cir 1991); vacated, remanded 112 SCt 2986 (1992)

1/24/86: Def-Mexican citizen apprehended by local police in Mexico, transported to U.S.; arrested by Drug Enforcement Admr (DEA): drug smuggling. 8/26/87: Mexican Embassy issued formal complaint to U.S. State Dept re DEA payments to Mexican police to "kidnap" Def. U.S. State Dept: payment not prearranged. 1/25/88: DEA agents searched Def's Mexico home w/out warrant, obtained evidence. 3/16/88: Fed'l grand jury issued 5-count superseding indictment: murder of DEA agent, drug smuggling.

• Irving, DJ: granted Def's motion to suppress evidence: 4th Amdt violations. 8/29/88: 9th Cir aff'd, Thompson, CJ: 4th Amdt applies to Gov't actions outside U.S. 2/28/90: USSC rev'd, remanded (6-3), Rehnquist, ChJ: 4th Amdt does not protect nonresident alien from search/seizure of property in foreign country. Stevens, J, conc: 4th Amdt applies, but search not unreasonable: U.S. ct cannot issue warrant for home in Mexico. Brennan, J (Marshall, J) diss: It cannot be that U.S. Const authorizes Gov't to enforce criminal laws abroad but 4th Amdt does not travel w/ U.S. agents exercising this authority. Blackmun, J, diss: Relationship between U.S. agents, foreign nat'ls fundamentally different from relationship between U.S. officials/residents. On remand to DC, Def filed motions to dismiss indictment, hold evidentiary h'g under U.S.-Mexico Extradition Treaty (31 UST 5059, TIAS 9656 (1980)), attached copies of 2 Mexican complaints, U.S. responses. Rafeedie, DJ: denied motions; after 2 mth trial, jury convicted Def; DJ sentenced: life plus 4 consecutive 60 yr terms. 7/22/91: 9th Cir rev'd, Reinhardt, CJ: Def has standing; ct has jurisdiction; political question doctrine bars neither; U.S. breached self-executing Treaty, implicit no-kidnapping provision, defied int'l law if authorized/sponsored kidnapping/unlawful removal of Def to U.S. w/out consent of Mexican Gov't (U.S. Const Art 6 cl 2; U.S.-Mexico Extradition Treaty Arts 9, 10, 12, 13, 17, 17 ILM 1058 (1978); OAS Charter Art 17, 2 UST 2394, TIAS 2361 (1948); as amended by Buenos Aires Protocol, 21 UST 607, TIAS 6847 (1967); 59 Stat 1031, TS 993 (1945) (PL-370/2.1); see 745 FSupp 599 (CD CA 1990)); if so, since Mexico has made formal complaint, U.S. cts have no jurisdiction, should not have tried Def, must vacate conviction, repatriate Def to Mexico; remanded to DC for evidentiary h'g re whether U.S. acted unilaterally. 6/22/92: USSC vacated, remanded for review in light of (PL-901/22.4). Pending.

Michael Pancer, 625 Broadway Ste 1135, 92101; Patrick Q Hall, Goldberg, Frant & Hall, 2870 4th Ave, 92103; both San Diego, CA

See PL-901/22.4

  Illegal Search/Kidnap
- 22.4 -
PL-901/22.4. U.S. v. Humberto Alvarez-Machain (CD CA 1991); aff'd 946 F2d 1466 (9th Cir 1991); rev'd, remanded, 112 SCt 2188, 31 ILM 900, 919, 934 (1992); (CD CA 1992); 32 ILM 277 (OAS Inter-American Juridical Comm 1993)

1985: U.S. Drug Enforcement Admr (DEA) agent tortured, murdered in Mexico; DEA offered $50,000 reward for Def-Mexican obstetrician. 4/2/90: Def kidnapped from office in Guadalajara, flown to El Paso, TX; arrested: complicity in torture, murder. 4/18, 5/16/90: Mexico issued formal protest to U.S. State Dept, requested Def's repatriation for trial. 7/19/90: Mexico requested extradition of U.S. agents responsible for kidnapping; U.S. ignored.

• 1991: Rafeedie, DJ, dism'd indictment: ct lacked jurisdiction: Gov't kidnap violated 1978 U.S.-Mexico Extradition Treaty (31 UST 5059, TIAS 9656, UNTS 19462, 17 ILM 1058 (1978)); Def must be repatriated to Mexico. 10/18/91: 9th Cir, per curiam, aff'd: "If we are to see the emergence of a `new world order' ... we must begin by holding our own gov't to its fundamental legal commitments." 11/29/91, 3/4/92: Mexico, Canada filed amicus briefs for Def. 6/15/92: USSC rev'd, remanded (6-3), Rehnquist, ChJ: although kidnap "shocking" violation of int'l law, not expressly/implicitly prohibited by Treaty; Exec jurisdiction. Stevens, J (Blackmun, O'Connor, JJ) diss: purpose of Treaty implies mutual respect for territorial integrity; Ct fails to distinguish between private, Gov't-authorized abductions; "desire for revenge no justification for disregarding the rule of law"; "the civilized world will be deeply disturbed by the monstrous decision the court". Seven S American Presidents, OAS Permanent Council requested review from OAS Inter-American Juridical Comm. 8/15/92: Comm issued Legal Opinion (9-0-1): USSC decision "ignores the fundamental principle of int'l law ... respect for ... territorial sovereignty of states"; U.S. obligated to return Def to Mexico. 12/14/92: Rafeedie, DJ, dism'd indictment: insufficient evidence.

Paul Hoffman, Alan Rubin, ACLU-S CA, 1616 Beverly Blvd; Robert K Steinberg, 9911 W Pico Blvd, 8th Fl, 90035; both Los Angeles, CA; amici: Michael Ratner, Beth Stephens, Peter Weiss, José Luis Morín, David Cole, CCR, 666 Broadway, 7th Fl, NY, NY, 10012; Harold Hongju Koh, Lowenstein Human Rights Clinic, Yale Law School; Michael J Abbell, 1101 30th St NW, Ste 525, Washington, DC, 20007 for Mexico

See PL-371/22.3

  Government Kidnap
PL-865/22.4. U.S. v. Salerno 698 FSupp 1109 (DC NY 1988); 866 F2d 540 (2d Cir 1989); on remand 740 FSupp 171 (1990); 937 F2d 797 (1991); modified 952 F2d 623 (1991); 112 SCt 2503 (1992)

1987: Fed'l grand jury indicted Defs for fraud, racketeering (RICO) in connection w/ construction contracts among "Club" cos. 2 owners testified before grand jury w/ "use" immunity, preventing gov't from using testimony to show owners were Club members. At trial, gov't used other evidence to show owners were Club members. Defs subpoenaed 2 witnesses who invoked 5th Amdt, refused to testify.

- 22.5 -

• 10/12/88: Johnson, DJ: denied Def's request to admit grand jury testimony pursuant to Fed'l Rules of Evidence 804(b)(1); convicted Defs on RICO offenses, denied Def's motion for new trial w/out evidentiary h'g. 1/18/89: Feinberg, CJ, vacated, remanded for h'g. 4/16/90: On remand, Brient, DJ, denied Def's motion. 11/6/91: as modified, 2nd Cir rev'd: DC erred in excluding grand jury testimony; to maintain adversarial fairness, Rule 804(b)(1)'s "similar motive" element should evaporate when gov't obtains immunized testimony in grand jury proceeding from witness who refuses to testify at trial. 6/19/92: USSC rev'd (8-1), Thomas, J: 1) former grand jury testimony may not be introduced under Rule 804(b)(1) w/out showing similar motive; there is no allowance for waiving similar motive requirement in interest of adversarial fairness; 2) remanded to determine whether gov't had motive. Stevens, J, diss: grand jury testimony admissible against gov't under Rule 804(b)(1); gov't had opportunity, similar motive to develop testimony denying criminal activity.

Michael E Tigar, U of TX Law School, Austin TX; Robert Ellis, 328 4th St, Marietta, OH 45750; Frederick P Hafetz, 500 5th Ave, 29th Fl, NY, NY 10110; Walter P Loughlin; Patrick M Wall, 36 W 44th St Ste 905, NY, NY 10036; Judd Brustein, NY, NY; Herbert J Miller, 2555 M St NW, Washington, DC 20037

  Self-Incrimination
PL-919/22.5. Doggett v. U.S. 906 F2d 573 (11th Cir 1990); 112 SCt 2686 (1992)

2/22/80: Pet indicted for conspiracy to import, distribute cocaine under 84 Stat 1265, 1291; 21 USC §§846, 963. Pet fled U.S. prior to arrest. 9/25/82: Pet reentered U.S. 9/88: U.S. Marshal's Service ran credit check on individuals subject to outstanding warrants, arrested Pet. Pet filed motion to dismiss indictment for govt's failure to prosecute earlier, violation of 6th Amdt right to speedy trial.

• Moore, DJ, rejected motion. Pet entered conditional guilty plea, convicted of conspiracy to import cocaine. 1990: 11th Cir aff'd. 6/24/92: USSC rev'd, remanded (5-4), Souter, J: Delay of 8½ yrs between Pet's indictment, arrest violated 6th Amdt right to speedy trial; govt's negligent delay presumptively prejudiced Pet's ability to prepare adequate defense even though Pet could not demonstrate exact prejudice; govt's egregious persistence in failing to prosecute Pet sufficient to warrant granting relief; by pleading guilty, Pet did not waive right to claim govt's delay would have prejudiced him had he gone to trial where Pet's plea was conditional on right to appeal adverse ruling under FRCrimP 11(a)(2). O'Connor, J, diss.

William J Sheppard, Jacksonville, FL

  Right to Speedy Trial
- 23.1 -
d. CASES LOST

PL-533/23.1. U.S. v. Berrigan (Catonsville 9)

417 F2d 1002 (4th Cir 1969)

5/17/68: 9 Defs carried out draft files from Selective Service Bd, set on fire in symbolic protest of Vietnam war; arrested: destruction of Gov't property, Selective Service System (SSS) records, interference w/ administration of SSS, 18 USC §§1361, 2071(a), 50 App USC §462(a). Defs pleaded innocent: actions w/ good motive — protesting illegal, immoral war.

• 10/5-9/68: Thomsen, DJ, allowed evidence of Defs' motives, instructed jury that motive was not relevant re willful violation of statute. Jury convicted each Def on all 3 charges. Sentences: 2-3½ yrs. 10/15/69: Sobeloff, CJ, aff'd: Defs not entitled to jury instruction requiring showing of bad motive for conviction, or that jury could acquit even if Defs clearly guilty of offense; law does not allow seizure, mutilation of public records, even as act of conscience. Defs served time.

  Vietnam War
PL-724/23.1. U.S. v. Red Feather 392 FSupp 916 (DC SD 1975)

1973: Def-Indians involved w/ occupation of Wounded Knee, SD, arrested: interfering w/ law enforcement officers engaged in lawful execution of duties, 18 USC §231(a)(3). Gov't sought order prohibiting Defs making statements re activities of DoD, military personnel, loan/sale of military equipment to DoJ used during occupation.

• 4/7/75: Bogue, DJ: Gov't had burden of proof beyond reasonable doubt that law enforcement officers lawfully engaged in duties; unlawful performance of duty may be shown by evidence U.S. marshals/FBI agents violated Defs' constitutional rights, military personnel took part in direct law enforcement; evidence showed military engaged in legal passive assistance (supplying material).

Wounded Knee Legal Defense/Offense Comm, Council Bluffs, IA 51502

See PL-534/34.1

  Native American Rights
PL-10/23.1. U.S. v. Julienne May 622 F2d 1000 (9th Cir 1980); cert den 449 US 984 (1980)

5/23/78: 181 Defs at protest against Trident nuclear submarine, missile system at Bangor, WA naval base; arrested: illegal entry (18 USC §1382) after being barred.

• 12/26/78: In bench trial, Voorhees, DJ, rejected necessity defense; denied Defs' expert witness on int'l law, Nuremberg Principles: Richard Falk; denied jury trial. 12/30/78: Judge convicted all but 6 Defs; sentence: 45 days - 3 yrs probation. 7/3/80: 9th Cir aff'd conviction.

Irwin H Schwartz, 710 Cherry St, Seattle, WA 98104

See 584 F2d 927; 579 F2d 545 (9th Cir 1978)

  Nuclear Weapons Protest
- 23.2 -
PL-76/23.2. U.S. v. Esther Cassidy (ED VA 1978); 616 F2d 101 (4th Cir 1979)

Defs Cassidy, Schuchardt threw blood, ashes on walls, ceiling of Pentagon in demonstration against design/possession of nuclear weapons; arrested: depredation of Gov't property (18 USC §1361).

• Lewis, DJ, denied necessity defense: even if possession of nuclear weapons illegal, Defs failed to show absence of other means to defend against this, link between actions and harm they sought to avoid; convicted. 11/1/79: 4th Cir aff'd.

Sebastian KD Graber

  Nuclear Weapons Protest
PL-12/23.2. U.S. v. Justine Lowe 654 F2d 562 (9th Cir 1981)

10/79: 12 Defs demonstrated against Trident nuclear submarine, missile system at Bangor Naval Base, WA; arrested: illegal entry (18 USC §1382).

• Defs under age 26, subject to Youth Corrections Act, tried by jury. All others tried by bench, Thompson, DJ: all convicted. 8/24/81: 9th Cir aff'd convictions, sentences of other Defs ranging from probation to 6 mths jail; Lowe's sentence vacated, remanded for resentencing re Youth Corrections Act (18 USC §5010).

Irwin H Schwartz, 710 Cherry St, 98104; Howard Ratner, 83 S King St; both Seattle, WA; Thomas Nast, 2246 E Date, Fresno, CA

  Nuclear Weapons Protest
PL-37/23.2. U.S. v. Schmucker 721 F2d 1046 (6th Cir 1983); 105 SCt 1860 (1985); 815 F2d 413 (1987)

Def refused to register for draft because of religious beliefs, no place on form to indicate CO.

• Aldrich, DJ: convicted Def. 1983: 6th Cir rev'd: selective prosecution. 4/1/85: USSC vacated, remanded for further consideration in light of (1985), (PL-140/22.1) (Govt's practice of passive enforcement, prosecuting only those who actively identified themselves to Gov't as non-registrants, did not violate 1st, 5th Amdts). DJ denied renewed request for discovery, h'g on selective prosecution. 4/3/87: 6th Cir aff'd: registration requirement not impermissible burden on religious objector's 1st Amdt rights nor denial of equal protection while exempting women/severely mentally deficient males; no requirement of immediate classification of COs.

Harrop Freeman; James H Feldman, Jr; Peter Goldberger; Jon Landau; William T Whitaker, 80 S Summit St, Akron, OH; Elizabeth Reilly; Dale A Baich

  Draft Registration
PL-14/23.2. U.S. v. Douglass (WD WA Nos 83-03M-01 - 83-03M-03); (9th Cir 1985)

2/16/83: 3 pro se Defs demonstrated against development/deployment of Trident missiles; arrested: illegal entry, reentry (18 USC §§1382, 7). Defs' brief argued necessity defense, int'l law.

• DJ rejected written testimony of experts: atty Mary Kaufman,

- 23.3 -
Archbishop Raymond Hunthausen; John P Morris, MD; Robert C Aldridge, weapons designer; convicted Defs in bench trial; sentences: 2 yrs probation; 10 days jail; 60 days jail. 9/27/85: 9th Cir aff'd convictions.

William C Dodge, Spokane, WA

  Nuclear Weapons Protest
PL-149/23.3. U.S. v. Alejandrina Torres 583 FSupp 86 (ND IL 1983); 751 F2d 875 (7th Cir 1984); 602 FSupp 1458 (1985); cert den 470 US 1087; 45 Guild Practitioner 15 (1988)

6/29/83: Members of FALN (Armed Forces of Puerto Rican Nat'l Liberation) arrested separately at workplaces by large squadrons of police, FBI agents: seditious conspiracy (18 USC §2384) (conspiring to oppose U.S. authority by force to obtain independence for Puerto Rico). 9/19/83: Defs filed extensive petition for dismissal or removal: 1) under principles of int'l law derived from (PL-370/2.1), colonized people have right to struggle for self-determination; illegal for colonial power, proceeding under domestic law, to criminalize actions of captured combatants; 2) fighter captured in liberation struggle must be offered political status of POW; 3) case should be transferred to int'l tribunal of competent jurisdiction; 4) in event of proceeding, Ct must insure trial not used as propaganda weapon against Puerto Rican independence movement.

• Leighton, DJ, ordered suppression of videotapes by FBI during surveillance; Gov't appealed. 12/19/84: 7th Cir rev'd: DC had authority to issue warrant for surveilling "safe houses" in which terrorist group allegedly assembled bombs. 8/85: Defs tried in DC; Defs would not participate in "illegal proceeding"; Trial J permitted press to call Defs "terrorists"; Defs went on hunger strike; Trial J transferred Defs to correctional center. Jury convicted 13; sentences: 40 yrs to life. USSC denied cert. Defs began serving time. Defs claimed political prisoner status: refused to work. Warden Luther ordered Defs into total isolation. After 10 mths, DC granted habeas petition, ordered Defs transferred to general prison population.

Michael E Deutsch, Dennis Cunningham, Melinda Power

See PL-417/43.9

  Puerto Rico Independence
PL-254/23.3. U.S. v. Kerley (WD WI 1984); 787 F2d 1147 (7th Cir 1986); (WD WI 1987); 838 F2d 932 (1988)

9/8/82: Def-Exec Dir, Nat'l Comm Against Registration & the Draft, indicated: failure to register for draft.

• 8/10/84: Doyle, DJ, denied Def's motion to dismiss for selective prosecution based on 1st Amdt activity. 9/18/84: DJ granted Def discovery motion; Gov't refused to comply; DJ granted Def motion to dismiss as sanction under FRCrimP 16 (d)(2). 5/5/86: 7th Cir rev'd. DJ denied Def motion to dismiss for denial of speedy trial. 4/21/87: After trial, jury convicted. 5/29/87: Shabaz, DJ, sentenced: 3 yrs prison, $10,000 fines to prevent Def from "aiding" other draft resisters. Def released on bail after 4 mths prison, entered law school. 1/28/88: 7th

- 23.4 -
Cir initially aff'd but ordered resentencing. On petition for reh'g, 7th Cir ordered new trial: jury instructions failed to distinguish between knowledge of fact, knowledge of legal duty. On remand, Def pleaded guilty; sentence: time served, no fine or probation.

Peter Goldberger; amicus: Comm Against Registration & the Draft

See PL-345/42.13

  Draft Registration
PL-336/23.4. U.S. v. Hendey 585 FSupp 458 (DC CO)

12/25/83: Def crossed barrier to Rocky Flats Nuclear Plant, run by Rockwell Int'l for DoE; arrested: trespass (42 USC §2278a(a), (c); 10 CFR 860.3, 860.5).

• At trial, Def admitted act, claimed freedom of religious exercise; convicted; 1 yr, $5,000 fine, suspended, 2 yrs probation; under 18 USC §3579, Def to pay $5-10/mth until $200 restitution for costs of Def's arrest. 4/30/84: Def moved for modification of sentence: restitution violated Def's religious convictions; Kane, DJ, denied.

Def pro se; Michael Katz, Vicky Mandell-King as advisors

  Nuclear Weapons Protest
PL-166/23.4. U.S. v. Joseph Tobin (DC MT, Great Falls Div); 785 F2d 318 (9th Cir 1986)

Easter 1984: Def-priest arrested at Malmstrom AFB: trespass.

• Shanstrom, Magis, convicted Def; sentence: 90 days prison, 80 suspended. On appeal, Def argued: 1) 1973 War Powers Resolution (WPR) (50 USC §1541-48) unconstitutional delegation of legislative powers to exec branch; 2) w/ passage of WPR, air base became illegal as base commander was ready to launch missiles on order of Pres w/out Congressional declaration of war; 3) under MT law, title of fed'l property used for other than original/legal purpose reverts to state. 2/21/86: 9th Cir aff'd.

Robert C Kelleher, John S Yoder, Robert L Kelleher Jr

  Nuclear Weapons Protest
PL-46/23.4. U.S. v. Sr Anne Montgomery (Pershing Plowshares)

772 F2d 733 (11th Cir 1985) 42 Guild Practitioner 127 (1985)

4/22/84: 8 Defs cut hole in fence of Orlando plant of Martin Marietta, hammered, poured blood on nuclear missile launchers/components belonging to U.S. Army; arrested: destruction of Gov't property (18 USC §1361), conspiracy to commit that offense (18 USC §371).

• During trial, Defs discharged attys, who promptly left courtroom. DC refused to probe prospective jurors' exposure to prejudicial pretrial publicity, refused to discharge some jurors for cause, denied Defs' motions to present necessity defense, int'l law. Jury convicted. 9/27/85: 11th Cir aff'd: Defs had no reasonable belief disarmament would be direct consequence of their actions.

Thomas Earl Gray, Jr; James M Russ, Tinker Bldg, 18 West Pine St, Orlando, FL 32801; Norman A Townsend, 1019 King St, Alexandria, VA 22314; Charles R Disalvo, Morganstown, WV; Lois Yankowski

  Nuclear Weapons Protest
- 23.5 -
PL-36/23.5. U.S. v. LaForge (Sperry Software)

(DC MN No 4-84-66); 42 Guild Practitioner 100-103, 123-125 (1985)

8/10/83: 2 anti-nuclear protesters poured blood on computers at Sperry Corp in Minneapolis; arrested: damaging private property being manufactured for U.S. Gov't (18 USC §1361). Defs' memo argued jurisdiction improperly granted to fed'l ct, none of damaged property owned by Fed'l Gov't.

• Lord, DJ, allowed justification defense. 11/7/84: Jury convicted Defs. DJ sentenced: 6 mths suspended, 6 mths probation; gave thoughtful statement re character of their offense relative to misconduct by Sperry: Sperry accused before same DJ of wrongfully embezzling $3.6 million from U.S. Gov't; Gov't sought only 10% of amount Corp wrongfully enriched.

C Peter Erlinder

  Nuclear Weapons Protest
PL-63/23.5. U.S. v. Cottier 759 F2d 760 (9th Cir 1985)

10/24/83: Def apprehended w/in fenced area of U.S. Air Force missile launch facility in Pondera City, MT: unlawful entry into military installation (18 USC §1382).

• U.S. Magis granted Def's in limine motion concerning expert testimony, justification defenses based on int'l law; after Def's offer of proof, Magis found as matter of law defenses could not prevail, excluded Def's offered evidence; convicted. 9th Cir aff'd.

William Boggs, Frank B Morrison, Sr

  Nuclear Weapons Protest
PL-230/23.5. U.S. v. Allen (Griffiss Plowshares)

(DC NY); 760 F2d 447 (2nd Cir 1985)

11/24/83 (Thanksgiving): 7 Defs entered Griffiss AFB, Rome, NY, hammered, poured blood on B-52 bomber, engines, left written indictment of Gov't; arrested by security guards: sabotage, destruction of Gov't property, conspiracy.

• DJ denied justification defense, expert testimony. Jury acquitted on sabotage, convicted on other 2 counts. Sentences: 2 to 3 yrs. 3/85: 2nd Cir aff'd.

Dean Hammer, pro se; Susan R Horn, Susan Finkelstein, Horn, Heins, Finkelstein & Pezzulo, Syracuse, NY, advisory counsel

  Nuclear Weapons Protest
PL-228/23.5. U.S. v. Dorrell 12/21/83: Security guards arrested Def at missile assembly plant, Vandenburg AFB: willfully violating U.S. property (18 USC §1361), knowingly entering military reservation for unlawful purpose (18 USC §1382). Gov't moved in limine to exclude necessity defense.

• DJ ruled Def should make in camera offer of proof if he intended to assert necessity at trial. Ct convicted Def. 4/17/85: 9th Cir, Sneed,

- 23.6 -
CJ, aff'd: necessity failed where Def had recourse to standard political process; Def's videotape inadmissible hearsay; DC did not abuse discretion in redacting Def's written statement to remove portions involving motivation.

Yolanda B Gómez

  Nuclear Weapons Protest
PL-257/23.6. U.S. v. Miller (Pantex Disarmament)

(ND TX)

7/16/85: Def began dismantling section of railroad track leading from DoE's Pantex Nuclear Weapons Assembly Plant, Amarillo, TX; arrested: wrecking trains, destruction of nat'l defense materiel.

• Jury convicted. 11/8/85: Sentence: 2 concurrent 4-yr terms. No appeal.

  Nuclear Weapons Protest
PL-368/23.6. U.S. v. Susan Rosenberg (DC NJ); 806 F2d 1169, 1176-80 (3rd Cir 1986); cert den 481 US 1070 (1987); 853 F2d 923 (1988)

1983: Bomb attacks on Gov't buildings in Washington, DC, including U.S. Capitol. 11/84: While moving weapons, Defs Rosenberg, Blunk arrested: conspiracy (18 USC §371), possession of unregistered weapons (26 USC §5861(d)), carrying explosives (18 USC §844(h)(2)), false identification (18 USC §1028, 42 USC §408(g)(2)).

• 3/7/85: Lacey, DJ denied necessity defense, Nuremberg Principles, evidence on U.S. war crimes, UNGA Res 33/24 justifying anti-colonial struggle, int'l law, expert witnesses (Michael Ratner, C Alexis Massel). 3/17/85: Jury convicted Defs. 5/20/85: Defs sentenced: 58 yrs prison (consecutive maximum penalty on all counts). 11/28/86: 3rd Cir aff'd. All appeals exhausted; Defs serving time in maximum-security prisons.

Defs pro se; legal advisers: Mark B Gombiner, Peter Avenia, Mary K O'Melveny, Susan B Tipograph; amici: ACLU-NJ, NLG-NJ, CCR, NECLC

See PL-368a/23.6; PL-368b/23.7

  Resistance
PL-368a/23.6. U.S. v. Berkman (ED PA #85-222)

1983-85: Def-fed'l fugitive; had served as physician at Wounded Knee, in inner cities, worked w/ Black liberation groups, associated w/ Resistance Conspiracy, involved in bomb attacks on U.S. Capitol, other fed'l buildings in Washington, DC. 5/85: Def arrested: conspiracy to aid, abet possession of weapons, explosives; held in preventive detention, developed Hodgkins Disease.

• At trial, Def argued lack of evidence of possession of contraband, right to resist U.S. war crimes (in Central America, S Africa, etc), right to political affiliation. Pollack, DJ convicted; sentence: 10 yrs. Def sent to Marion, IL maximum security prison, had no access to proper medical care. 1988: Public pressure, DJ's intervention caused Bureau of Prisons to move Def to Washington DC jail, allow medical treatment. 1987: Def became eligible for parole; int'l campaign

- 23.7 -
mounted seeking Def's release, charging inadequate medical care. Def remains in prison.

William Mocolescu, 220 5th Ave, 10001; William Kunstler, Ronald Kuby, 13 Gay St, 10014; both NY, NY

See PL-368/23.6; PL-368b/23.7

  Resistance
PL-368b/23.7. U.S. v. Laura Whitehorn (Resistance Conspiracy Case)

den of bail aff'd, 861 F2d 303 (DC Cir 1988); charges dism'd, 710 FSupp 803 (DC DC 1989); dismissal rev'd, 888 F2d 1406 (1989)

1/83-2/85: Bomb attacks on U.S. Capitol, U.S. Army War College, Washington DC, Fed'l Building in Staten Island, allegedly by 7 Defs. 11/84: Defs Blunk, Rosenberg arrested. 5/85: 4 other Defs arrested. 4/20/88: Grand jury indicted Defs Whitehorn, Evans, Buck: conspiracy to influence/protest U.S. Gov't policies/practices re int'l/domestic matters through violent, illegal means; indicted all Defs: damaging, destroying U.S. Gov't buildings, attempting to do so. Defs made statements: these were acts of resistance against state terrorism, war crimes, other violations of int'l law by Reagan Admr.

• 4/11/89: Greene, DJ, denied Motion to Dismiss for Prosecutorial Misconduct: Defs' actions crimes regardless of Defs' politics; no evidence 3-yr delay resulted from Gov't intention to gain tactical advantage; extraordinary length of sentences for related crimes imposed by DJ, not prosecution; Defs' prison conditions/courtroom security warranted by Defs' history as fugitive, involvement in escapes. DJ dism'd charges against Berkman, Blunk, Rosenberg: double jeopardy: already convicted of possessory crimes re same incidents. 11/3/89: On U.S. Atty's appeal, DC Cir rev'd dismissal, remanded. 9/7/90: Defs pleaded guilty. 12/6/90: Greene, DJ, sentenced Defs: 20 yrs (Whitehorn), 5 yrs (Evans, after completing 35 yr term for buying firearms illegally).

Nkechi Taifa, 576 Nicholson St NE, 20011; Russell F Canan, 419 7th St NW, 20004; Robert E Morin, 419 7th St, Ste 219, 20004; Mary K O'Melveny, 501 3d St NW, Ste 800, 20003; Shawn Moore, Public Defender Service, 451 Indiana Ave NW, 20001; all Washington, DC

See PL-368/23.6; PL-368a/23.6

  Resistance
PL-134/23.7. U.S. v. Morison 604 FSupp 655 (DC MD 1985)

7/30/84: Def-U.S. Navy employee gave classified "secret" photos of Soviet aircraft carrier under construction in Black Sea naval shipyard to Jane's Publication Co, Ltd, Def's other employer. Photos appeared in Jane's Defense Weekly, 8/11/84. 10/1/84: Def arrested: violating 18 USC §§641, 793(d),(e) by disclosure to Jane's Defense Weekly, personal retention of docs re nat'l defense. Def argued charges should be dism'd: USC §§793(d),(e) unconstitutionally vague, overbroad; intended to proscribe espionage, don't apply to Def's conduct; lack element of subversive intent; fail to give citizens adequate notice of what conduct is proscribed; §793(e) sacrifices 5th Amdt rights against

- 23.8 -
self-incrimination; §641 does not apply to disclosure of classified docs if docs used to contribute to public debate ( 629 F2d 908, 922-28 (4th Cir 1980); cert den 454 US 1144 (1982)).

• 3/12/85: Young, DJ, denied motion to dismiss. 10/85: Def convicted under Espionage Act; sentence: 2 yrs.

Jacob A Stein, Robert F Muse, Mark H Lynch, Armistead P Rood

  Classified Information
PL-41/23.8. U.S. v. Carl Kabat (Silo Pruning Hooks)

797 F2d 580 (8th Cir 1986); cert den 481 US 1030

11/12/84: Defs hammered, poured blood on Minuteman II missile silo in MO; indicted by grand jury: conspiracy to, damaging Gov't property, sabotage (18 USC §§371, 1361, 2155).

• 2/22/85: Jury convicted; Bartlett, DJ, sentenced: 8-18 yrs; 3-5 yrs probation, $2932 restitution. After sentencing, Danish Peace Foundation wrote letter to DJ protesting severity of sentences. 11/1/85: DJ reduced one 18-yr sentence to 12 yrs. 7/22/86: 8th Cir aff'd convictions: Wollman, CJ: Defs may not use necessity defense to bypass political question doctrine. Bright, CJ, diss. 3/87: DJ reduced 8-yr sentence to 36 mths, 3 yrs probation; 10 yrs to 40 mths, 4 yrs probation; both w/ 300 hrs community service. 4/27/87: USSC denied cert. Defs served time.

Henry M Stoever, 1101 E 47th St, Kansas City, MO; Prof Norman Townsend

  Nuclear Weapons Protest
PL-282/23.8. U.S. v. Holladay (Plowshares #12)

(DC MO); 797 F2d 580 (8th Cir 1986)

2/19/85: Def entered Minuteman II missile silo at Whiteman AFB, Odessa, MO; damaged lid of silo w/ hammer, chisel; poured blood on silo; spray-painted "No More Hiroshimas"; left indictment of Gov't war planning; arrested: destruction of Gov't property, nat'l defense materiel.

• J denied bond; Def held until trial. 4/85: J denied justification defense. 4/25/85: Jury convicted Def on both charges. 5/16/85: J sentenced Def: 8 yrs prison, 5 yrs probation, $1000 fine, $2242 restitution. 9/24/86: J held sentence reduction h'g, released Def after 19 mths prison; probation through 1991, must pay restitution, obey law during probation.

  Nuclear Weapons Protest
PL-369/23.8. U.S. v. Margaret Fox, Manshardt 820 F2d 1228 (9th Cir 1987)

5/5/85: Defs entered Davis-Monthan AFB in Tucson, AZ, danced on Cruise Missile Bldg; arrested: violating Bar Order (18 USC §1382). Defs filed motion for necessity defense w/ 5 experts' affidavits on Defs, reasonable anticipation of deterring imminent harm of nuclear war, lack of viable alternatives.

• 10/9/85: Bilby, DJ, denied prosecution motion in limine to bar necessity defense. 10/25/85: DJ denied motion for reconsideration.

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12/6/85: DJ denied second motion for reconsideration. U.S. Atty petitioned 9th Cir for writ of mandamus overruling J. 6/4/86: 9th Cir granted writ. 11/25/86: W/out necessity defense, DJ convicted Defs; sentence: 6 mths probation, 100 hours community service planning public forum on disarmament. 6/19/87: 9th Cir aff'd.

Isabel García-Gallegos, Fajardo, Bustamante, & García-Gallegos; Nancy Grey Postero, Keller & Postero

  Nuclear Weapons Protest
PL-154/23.9. U.S. v. Merkt and Elder 794 F2d 950 (5th Cir 1986); cert den 107 SCt 1603 (1987)

12/4/84: 2 Casa Romero refugee shelter workers gave man, woman, 3 children short ride to bus station; arrested: conspiracy, transporting illegal aliens (8 USC §1324).

• 3/85: DJ rejected int'l law defenses, evidence, jury instructions on 1st Amdt right to exercise religious beliefs; aliens lawfully in U.S. under 1980 Refugee Act, fled war-ravaged El Salvador; Defs had no specific intent to violate law. Gov't presented refugee whose children were being held by INS pending his testimony identifying Def. 3/21/85: Jury acquitted Merkt on transporting charges, convicted on conspiracy; DJ ordered Def to serve 179 days of 18-mth prison sentence. Jury convicted Elder on all counts, DJ reduced sentence to 150 days in halfway house. 7/86: 5th Cir aff'd: in enacting U.S. refugee stats, Cong not bound by int'l law. 4/16/87: Dr recommended Def-Merkt's release due to complications of pregnancy; DJ released: 83 days house arrest, ordered to move out of Casa Romero, stop talking to media. 5/87: USSC denied cert.

Stephen W Cooper, C Peter Erlinder, Michael E Tigar, Lisa Brodyaga

See PL-152/21.2; PL-153/20.2

  Sanctuary
PL-131/23.9. U.S. v. Phillip Willis-Conger; U.S. v. Pardo de Aguilar (Arizona Sanctuary Case)

(DC AZ 1985); 871 F2d 1436, as amended 883 F2d 662 (9th Cir 1989); cert den 111 SCt 751 (1991)

1/10/85: U.S. grand jury indicted 16 (2 priests, minister, 3 nuns, working w/ nat'l church-based movement to provide sanctuary to Salvadoran, Guatemalan refugees) on 44 counts: conspiracy, smuggling, harboring (8 USC §§1324, 1325; 18 USC §§2, 371); 60 refugees arrested same day: co-conspirators. Defs' Memo in Opposition to Govt's Motion in Limine and in Support of Defs' Motion to Dismiss: int'l law relevant, applicable to stats, necessity defense; U.S. subscribes to humanitarian, refugee, human rights law, which require civilians fleeing from armed internal conflict be given temporary refuge, prohibit forced repatriation (1980 Refugee Act, 94 Stat 102); 1st Amdt freedom of religion.

• Carroll, DJ, granted Govt's motion; denied necessity, "good faith" defenses; denied Defs' motion to dismiss based on selective prosecution. 10/85: Jury trial began w/ extensive voir dire. Chief Gov't witness: undercover informant who posed as church worshiper. DJ dism'd charges against 5 Defs. Defense followed "ooze strategy",

- 23.10 -
helping basic 1st Amdt freedoms of religion, speech defenses ooze into all voir dire, examination, cross-examination. 5/1/86: Jury acquitted 3 Defs; convicted 8 Defs on 18 counts. J sentenced: probation. 3/30/89: 9th Cir, Hall, CJ, aff'd. 8/14/89: 9th Cir denied reh'g en banc. 1/14/91: USSC denied cert.

A Bates Butler III, 120 W Broadway Ste 420, Tucson, AZ, 85102-3012; Peter Baird, 40 N Central Ave, Phoenix, AZ 85004; Michael Tigar, U of TX Law School, Austin, TX; James Brosnahan, 345 California St, 94104-2150; Karen Snell, Riordan & Rosenthal; both San Francisco, CA; Jan Hartman, Paul Hoffman, Los Angeles, CA; Robert Pauw, 1111 3d Ave Ste 1210; Deborah Perluss, Evergreen Legal Services; both Seattle, WA; Ellen Yaroshefsky, CCR, 666 Broadway, 7th Fl, NY, NY 10012

  Sanctuary
PL-72/23.10. U.S. v. Finley (SD IN, Indianapolis Div No IP 85, Magis' Nos 0114M-01 - 0114M-07)

5/9/85: 7 Defs staged sit-in at Indianapolis office of Sen Lugar to protest U.S. intervention in Nicaragua; arrested: unwarranted loitering, creating public nuisance (40 USC §386(c), 41 CFR 101.20.315). 7/8/85: Defs filed motion to dismiss: stat repealed; necessity defense; unconstitutional vagueness of charging reg; unconstitutional delegation of power by charging stat.

• Godich, U.S. Magis, allowed necessity defense on pretrial motion; ruled at bench trial: Defs had not met burden on necessity defense; convicted Defs; sentence: 16 hours community service, 6 mths unsupervised, nonreporting probation.

Eric L Mayer

  Contra Aid
PL-177/23.10. U.S. v. Daniel Rutt 818 F2d 867 (6th Cir #86-1591, 1987)

1/24/83: Def indicted: failure to register for draft (50 USC §453) Presidential Proclamation #4771. Def moved to dismiss: selective prosecution (he was public non-registrant); failure to state crime; illegality of Proclamation, Selective Service Regs; denial of due process for failure to provide CO status h'g after registration. Interesting pleading and brief on exec privilege.

• 1/15/86: Jury convicted. 5/18/87: 6th Cir aff'd.

James Lafferty

See PL-254/23.3

  Draft Registration
PL-327/23.10. U.S. v. David Sohappy (DC WA)

1855: U.S. Gov't signed Yakima Treaty affirming right of Yakima Indians to fish for salmon as part of Yakima traditional religion. 1981-82: 5 Defs including David Sohappy, Sr and Jr sold salmon to fed'l, state undercover agents; arrested: U.S. fishing rights law, Lacey Amdts of 1981.

• Summer 1986: Dist Ct trial: Defs convicted. Spring 1987: Def ill in

- 23.11 -
prison; returned to Yakima custody. Tribal trial: Def found not guilty. DoJ, BIA pressured tribe to return Def; Def returned to fed'l custody. 8/87: Sohappy, Sr hospitalized after 2 strokes; fed'l physicians recommended release. Bureau of Prisons moved to transfer Def to Terminal Island, CA; DJ refused to block transfer. 12/24/87: DoJ offered to release Def if he repented, apologized for fighting for traditional rights; Def refused.

Tom Keefe, Jr

  Native American Rights
PL-176/23.11. U.S. v. Thomas / (DC AK Cr #A86-034)

3/17/86: 5 Defs occupied Rep Don Young's office, protesting bill granting $100 million aid to contras to overthrow Gov't of Nicaragua; arrested: disrupting performance of official duties by government employees (41 CFR 101.20.305 (1978)).

• 7/7/86: Roberts, U.S. Magis, allowed 1st Amdt, int'l law, Nuremberg defenses; barred testimony of 2 expert witnesses (Atty Karen Parker, Dr Ed Meyer Jr); convicted all Defs: conduct not constitutionally protected; 7/25/86: Cong passed Contra aid bill.

James Bamberger

  Contra Aid
PL-159/23.11. U.S. v. Darla Bradley (Silo Plowshares)

(WD MO, W Div, Cr No 86-000077-01/05-CR-W-3)

3/28/86 (Easter): 5 Catholic Defs entered Johnson Cty AFB, damaged 2 Minuteman II missile launch facilities; indicted: conspiracy, willful injury to structural, mechanical, electrical equipment (18 USC §§371, 1361).

• DJ allowed pro se Defs to present evidence of state of mind; denied justification defense. 6/27/86: Jury convicted on both counts. 8/22/86: DJ sentenced: 4 Defs to 8 yrs prison, 1 to 7 yrs, all plus 5 yrs probation, $100 fine, restitution charges. 4/87: DJ reduced 1 sentence from 7 yrs to 10 mths, 2 from 8 yrs to 1 yr, all plus 5 yrs probation plus restitution. Defs served time.

  Nuclear Weapons Protest
PL-372/23.11. U.S. v. Arnold (DC Super Ct No M9198-86)

Spring/86: Sit-in at Capitol Rotunda protesting H of Reps vote to send $100 million to contras, 18 arrested: misdemeanor.

• 2/16/87: Moore, J, conducted trial, did not allow jury to hear Defs' expert witnesses: Ramsey Clark, Daniel Ellsberg on int'l law, effectiveness of protests in altering U.S. policy; jury convicted.

Nina Kraut

  Contra Aid
PL-308/23.11. U.S. v. Agosti (WD WA at Seattle, CR 87-10C)

9/9/86: 125 stood by while 29 quietly entered Navy's Trident submarine base; 10 previously-barred arrested: trespass (18 USC §1382); 19 given

- 23.12 -
letters barring them from entering base.

• 4/6/87: At trial, Defs made oral offers of proof from expert witness Ramsey Clark (on lack of effective legal alternatives to change military policy), Richard Falk (on illegality of 1st-strike nuclear weapons). Coughenour, DJ, allowed expert witnesses, granted Govt's motions that Defs' defenses be denied; convicted all Defs; sentence: 2-60 days depending on past record.

Michael J Trickey, Patrick W Crowley

  Nuclear Weapons Protest
PL-276/23.12. U.S. v. Lin Romano, Boertje (Epiphany Plowshares)

849 F2d 812 (3rd Cir 1988); 870 F2d 652 (1989)

1/6/87: 4 Defs, including 2 Catholic priests, entered Willow Grove Naval Air Station in Horsham, PA, displayed anti-war banners, left written statement, damaged Navy P-3 Orion anti-sub aircraft (first-strike weapon), Marine CH-53 Sea Stallion, Army H-1 Huey helicopter (interventionary weapons) w/ hammers, blood; arrested on base: conspiracy, destruction of Gov't property (allegedly $160,000), trespass.

• 3/31/87: Broderick, DJ, denied affirmative defenses of crime prevention, necessity, Defs testified re beliefs, facts on nuclear weapons; jury hung. 5/11/87: In second trial, DJ granted Gov't motion in limine preventing Defs from presenting much testimony, evidence; jury hung. Two Defs pleaded guilty to misdemeanor trespass; sentence: 100 days prison, $500 fine. 7/13/87: In third trial, DJ soon declared mistrial for Defs' vocal efforts to discuss nuclear weapons, sentenced Defs to 10, 15 days for contempt. 9/22/87: In fourth trial, during opening statements, DJ revoked Defs' right to defend selves, assigned ct-appointed attys; jury convicted Defs on all counts. Def Romano's trespass—100 days, property destruction—2 yrs, contempt—25 days, conspiracy—5 yrs consecutive probation. Def Boertje went underground. 1/25/88: Romano appealed: in limine order violated constitutional right to present defense case, unsupported by Fed R Evid 401-403; right to counsel violated by Ct appointing counsel after terminating pro se status, not allowing Def to retain own counsel. 6/16/88: 3rd Cir rev'd: DJ violated 6th Amdt right to counsel. By agreement, on remand Def Romano tried for misdemeanor only; convicted; sentence: time served (295 days). 4/3/87: Def Boertje surfaced, returned to ED PA; sentence: same as Romano. 2/8/89: 3rd Cir rev'd: DJ violated 6th Amdt. Tried, convicted of jumping bail; sentence: 27 mths, reduced to 21 mths. Def served time.

Peter Goldberger, The Ben Franklin Ste 400, Chestnut St at 9th, 19107; Br Frank Cervone, Esq, FSC, 1524 Race St, 19102; both Philadelphia, PA

  Nuclear Weapons Protest
PL-343/23.12. U.S. v. Peter Bennett (WD WA #CR-87-120R)

4/15/87: 9 protesters blocked train carrying Trident missile motors to Naval Submarine Base (SUBASE), Bangor, WA; arrested; 2 Defs, previously issued "bar letters" to stay off SUBASE, cited for trespass. 5/5/87: During prayer vigil at SUBASE, 22 arrested: 12 issued bar

- 23.13 -
letters, 10 repeaters charged: trespass (18 USC §1382). 7/23/87: Defs moved for jury trial, argued 1st Amdt issues "special circumstances" requiring jury even though case involved offense punishable by 6 mths jail.

• 8/13/87: Rothstein, DJ, denied Defs' motion for jury trial. 9/23/87: Defs offered 1st Amdt, Nuremberg defenses. J granted Gov't motion in limine to block defenses, convicted Defs.

John Midgley, Seattle, WA; amicus Prof Matthew Lippman

  Nuclear Weapons Protest
PL-277/23.13. U.S. v. Sieber (Paupers Plowshares)

(ED PA)

4/17/87 (Good Friday): 2 brothers, one a priest, entered Naval Air Development Center, Warminster, PA, buried coffin containing names of 65 poor people buried in local "potter's field," damaged P-3 Orion aircraft (first-strike weapon) w/ hammers, wire cutters, blood, raised banner, left indictment of U.S. war preparations; arrested: unlawful entry, destruction of Gov't property. At arraignment, charges reduced to breaking, entering.

• 8/5/87: J convicted Defs at bench trial; sentences: each 6 mths probation, $100 fine, $25 special assessment, $770 restitution. Defs unwilling to make restitution. For technical reasons, Gov't would have lost appeal, so agreed to voluntary dismissal. 2/10/88: Defs resentenced: 1 yr probation, $100 fine.

  Nuclear Weapons Protest
PL-275/23.13. U.S. v. North (DC DC Cr No 88-0080-02-GAG); 46 Guild Practitioner 65 (stipulation); (DC Cir 1990)

5/5-8/3/87: Cong Select Comm held h'gs on whether new legislation needed in light of sale of U.S. arms to Iran, diversion of profits to contras in violation of existing U.S. laws. Atty Gen'l Meese appointed Special Prosecutor Lawrence Walsh to study possible charges against 4 witnesses: 2 White House Aides, 2 private citizens — Oliver North, John Poindexter, Richard Secord, Albert Hakim — who testified under grants of limited immunity. Walsh recommended indictments against all 4: conspiracy to defraud U.S. by diverting to Nicaraguan contras proceeds of arms sale to Iran in violation of U.S. laws; making false statements to Cong; obstruction of justice; illegal acceptance of gifts.

• 6/6/88: Gesell, DJ, rejected Defs' motions to review highly classified Gov't docs, move trial out of Washington. 6/9/88: DJ ordered separate trials for each Def, after 11/88 election, to allow use of immunized testimony of other Defs. 1/4/89: DJ ordered Def to turn over 3,000 pages of notes from operations to Prosecutor. Atty Gen'l Thornburgh withheld other docs: nat'l security (Classified Information Procedures Act). 4/6/89: U.S. entered 107 paragraphs of admissions into record summarizing classified material. 5/4/89: After trial, jury convicted Def on 3 felony counts: aiding obstruction of Cong, destroying Gov't docs, accepting illegal gifts; acquitted of lying to Cong, defrauding IRS. Sentence: 2 yrs probation, 1200 hrs community service, $150,000 fine. 7/20/90: DC Cir suspended 3 felony convictions, ordered DC to

- 23.14 -
reexamine evidence to determine if tainted by Congressional testimony given under grant of immunity. 5/27/91: USSC denied cert. 9/16/91: Gesell, DJ, dropped all charges against Def: U.S. could not prove witnesses unaffected by Congressional testimony.

See PL-275aa/41.4; PL-209/54.1; PL-217/52.1; PL-243/23.14; PL-358/70.4; PL-474/70.3

See also PL-275a/20.5, -275b/23.14, -275c/23.14, -275d/20.5, -275e/23.14

  Iran/contragate
PL-275b/23.14. U.S. v. Poindexter (DC DC); (DC Cir 1991)

3/16/88: Def-Admiral, nat'l security advisor, charged w/ lying in connection w/Iran-contras. Def subpoenaed records, testimony of Pres Reagan.

• 5/7/90: After trial DC jury convicted Def on 5 felony counts. 6/11/90: DC sentenced Def to 6 mths prison. Def appealed. 11/15/91: DC Cir, Ginsburg, CJ, rev'd: Def's testimony from Congressional investigation used unfairly at trial.

  Iran/contragate
PL-275c/23.14. U.S. v. McFarlane (DC DC)

Def-former nat'l security advisor denied Nat'l Security Council solicited support for, moved arms to, contras; denied knowledge of other countries' aid to contras.

• 1987: Def pleaded guilty to 4 misdemeanor counts of withholding information from Cong. 12/87: sentence: 2 yrs probation.

  Iran/contragate
PL-275e/23.14. U.S. v. Channell, Miller (DC DC)

Def Channell-head of nonprofit Nat'l Endowment for Preservation of Liberty (NEPL); Def Miller-head of public-relations firm. Defs raised $10 million to arm contras, gave only $4.5 million to contras.

• 4/87: Defs pleaded guilty to conspiring to defraud U.S. of taxes. 7/7/89: Harris, DJ, sentenced: 2 yrs probation.

  Iran/contragate
PL-243/23.14. U.S. v. Joseph Fernandez (DC DC 1988); (ED VA 1989); 913 F2d 148 (4th Cir 1990)

1984-86: Def-CIA station chief, Costa Rica, operating as Tomás Castillo, under Clair George, CIA deputy dir, operations; allegedly oversaw construction of N Costa Rica airstrip for delivery of arms to Contras. 1987: Def told Presidential (Tower) Commn investigating Iran/contragate he did not know North aiding Contras, later admitted to Tower Commn, CIA inspector gen'l. 12/86: CIA Dir Webster removed Def from Costa Rica. 5/87: Def retired. 6/29/88: Fed'l grand jury indicted Def: conspiracy to arm Contras, organize private arms supply network during Congressional ban on aid; lying to supervisors to conceal operation; obstructing Tower Commn investigation of sale of U.S. weapons to Iran, diversion of profits to Contras.

• 6/29/88: Def pleaded not guilty; Robinson, DJ, released Def on own

- 23.15 -
recognizance. Fall/88: DJ granted Prosecutor's motion to dismiss: ED VA, where most crimes committed, appropriate forum. 4/25/89: Def indicted in ED VA: obstructing proceedings, lying to conceal own role, roles of North, White House. Hilton, DJ: Def can disclose secret information. Trial set for 7/24/89. 4th Cir, Wilkinson, CJ, issued stay. 11/22/89: At CIA request, Atty Gen'l Thornburgh barred use of classified evidence DJ found necessary to Def. 11/24/89: Hilton, DJ, dism'd indictment. 9/6/90: 4th Cir, Wilkinson, CJ, aff'd.

See PL-275/23.13

  Contra Aid
PL-224/23.15. U.S. v. Katya Komisaruk 874 F2d 686 (9th Cir 1989)

6/2/87: Def entered Vandenberg AFB, wrote "international law" on obsolete computer, smashed what she thought was part of NAVSTAR 1st-strike guidance system, wrote "Nuremberg Principles" on antenna. 6/3/87: Def described acts at news conference in San Francisco; FBI arrested Def: destruction of Gov't property, sabotage (18 USC §§1361, 2155). U.S. Atty abandoned sabotage charge.

• Rea, DJ, granted Gov't motion in limine barring necessity defense, Nuremberg Principles, motive evidence, int'l law. 11/16/87: Jury convicted Def of destroying Gov't property. 1/11/88: DJ sentenced: 5 yrs prison; $500,000 restitution to come from book, movie deals; denied bail. 5/10/89: 9th Cir aff'd. Def served 25 mths; released. 1990: Def entered 1st yr Harvard Law School.

Leonard Weinglass, 6 W 20th St, NY, NY 10011; Dan Williams, 600 Montgomery St, 94111; William Simpich Jr, 223 Precita, 94110; both San Francisco, CA; Benjamin Gibson

  Nuclear Weapons Protest
PL-307/23.15. U.S. v. Sticklin (WD WA at Tacoma, CR 87-145C (T))

6/20/87: 50 demonstrators assembled along tracks outside Bangor Naval Submarine Base when "white train" arrived carrying missile motors for nuclear warheads. 10 who had been convicted previously of trespass arrested: trespass.

• 12/21/87: Tanner, DJ, granted Gov't motion in limine denying defenses of necessity, int'l law, Nuremberg Principles, expert witnesses; convicted Defs. 1/8/88: DJ sentenced: 6 mths suspended, 1 yr probation.

Karol Schulkin, pro se

  Nuclear Weapons Protest
PL-250/23.15. U.S. v. Philip Berrigan, Boertje (Nuclear Navy Plowshares)

(ED VA)

4/3/87: 5 peace activists boarded USS Iowa at Virginia Naval Base, attacked 2 cruise missile launchers w/ hammers, bolt cutters, vials of blood, did minor damage; arrested: trespass.

• 7/26/88: Ct convicted; sentence: 6 mths jail.

See PL-276/23.12, PL-547/28.13

  Nuclear Weapons Protest
- 23.16 -
PL-330/23.16. U.S. v. Terrell, Mario Calero 731 FSupp 473 (SD FL 1989)

6/28/88: Grand jury indicted 6 including Nicaraguan contra leader's brother, bodyguard, former mercenary, fund-raiser for Civilian Material Assistance (AL-based): 7 counts of recruiting for contras, violating, conspiring to violate Neutrality Act (18 USC §960).

• 7/22/88: Def-Adams pleaded guilty; Roettger, DJ, sentenced: $50 fine, 1 day probation. 7/12/89: Roettger, DJ, granted Defs' motion to dismiss charges re Neutrality Act: U.S. not at peace w/ Nicaragua from 10/84-3/85 (period when alleged crimes occurred) even though Cong had refused to fund contras during this time, as Exec support of contras continued.

See PL-186/33.14; PL-358/70.4; PL-217/52.1

  Contra Aid
PL-311/23.16. U.S. v. Archibald (Honduras 10)

(ND CA Cr #88-0275-MAG (WDB))

3/17/88: 10 sat on steps of San Francisco Fed'l Building to protest deployment of U.S. troops to Honduras; arrested: obstruction of entrance to fed'l building (41 CFR 101.20.305). 6/7/88: Gov't filed motion in limine to exclude evidence of necessity defense. 6/9/88: Defs filed memo in opposition.

• At bench trial, Brazil, Magis, did not consider Gov't motion until after Gov't had put on its case, then denied necessity defense. Def raised defenses of int'l law, prevention of crime; after 2 hours argument, brief testimony of expert Karen Parker, Magis refused defense; convicted Defs.

Stephen N Brannon; John Burroughs, Western States Legal Foundation, 1440 Broadway Ste 420, 94612; Diana Bullock, 3871 Piedmont Ave, 94611; both Oakland, CA; Andrew M Lichterman

  Honduras
PL-346a/23.16. U.S. v. Bauder and Fink (DC DC)

Cubic Corp's program manager, engineer worked on Corp's contract w/ U.S. Army for retrofitting mine detectors. 2/84: Army terminated contract. 3/17/88: Fed'l grand jury indicted 2 Defs: 24 counts of conspiracy to defraud Army, making, using false documents to falsify test results. 3/25/88: Defs arrested. U.S. sued Corp, settled related contract claim; retained Defs on payroll.

• 8/14/89: Jury acquitted Defs of fraud, hung on other charges. 4/12/90: After retrial on other charges, jury acquitted.

See PL-346/41.2

  Military Contracts
PL-289/23.16. U.S. v. Kevin McGuire (DC NE 1987)

Def, wife, joined Greenfields Resistance Community; Def committed civil disobedience at Strategic Air Command Hqtrs (SAC), Offut AFB;

- 23.17 -
convicted; served 2+ yrs. 12/28/87: 18 crossed line at SAC to protest its targeting of all U.S. land, air-based nuclear weapons; 7 arrested: trespass, reentry. On arraignment day, Def sought sanctuary in Omaha Catholic Archdiocese Cathedral; refused. 4/4/88: Def sought sanctuary in cathedral; refused. City police escorted him outside; FBI took him into custody.

• 4/5/88: convicted; sentence: 6 mths prison, $500 fine; served time.

Greenfields Resistance Community

  Nuclear Weapons Protest
PL-373/23.17. U.S. v. Clair Nord (DC CO 88-CR-213, 1988); (10th Cir 88-2664, 1988)

8/6/88: Def entered Rocky Flats nuclear plant, sought to confront plant manager, perform citizens arrest; arrested: misdemeanor trespass (42 USC §2278). Def filed evidence, proffered expert witnesses on int'l law (Hague Convention), necessity defense, Nuremberg Principles; health, environmental dangers of plutonium production at Rocky Flats.

• Weinstock, DJ, rejected defenses, witnesses, w/out oral argument; reduced charge, took trial off jury docket; denied Def's request for jury trial; convicted Def; sentence: $750 fine. 10th Cir aff'd in unpublished opinion. 10/6/89: DoE-authorized study found enough plutonium in air duct of Rocky Flats plant to cause nuclear reaction, scatter plutonium, radiation.

George Johnson, 595 Canyon Blvd, Boulder, CO 80302

  Nuclear Weapons Protest
PL-374/23.17. U.S. v. Bonnie Urfer (WD MO)

8/16/88: Def, 5 others, entered missile base, sat on silo; arrested: trespass.

• J denied testimony on nuclear weapons, int'l law, Gov't military/domestic spending; convicted; sentence: 2 yrs prison. Def served time.

  Nuclear Weapons Protest
PL-378/23.17. U.S. v. Carl Veilleux (DC VT 1989)

1983: Def wrote draft bd stating opposition to U.S. military policies, decision not to register for draft. Def claimed to be registered for draft on Financial Aid forms to receive fed'l college aid. 6/18/89: Def arrested: student loan fraud under Solomon Amdt (20 USC §1097).

• 6/89: Def pleaded guilty. Niedermeier, U.S. Magis, sentenced: 18 mths probation; Def agreed to register for draft by 6/29/89, pay back $5088 in student assistance grants.

Richard Rubin, RRI, Box 2980, Plainfield, VT 05667

  Draft Registration
PL-379/23.17. U.S. v. Erik Thompson (DC NV CR-S-89-202-LDG (LRL))

8/9/89: Def, 2 others spent approximately 5 minutes in Los Alamos Labs office building at former chapel on Nagasaki anniversary; arrested: trespassing at DoE facility (10 CFR §860.3, 42 USC § 2278(a)).

- 23.18 -

• 10/30/89: George, DJ, disallowed int'l law, Nuremberg Principles defenses, expert witness. Jury convicted; other Defs tried separately. 2/9/90: sentence: 90 days Fed'l Prison Camp, Oxford, WI; maximum $5,000 fine, prison costs $40/day. 9th Cir aff'd. 7/26/90: Def served time.

Def pro se at trial; Randall Roske on appeal

  Nuclear Weapons Protest
PL-375/23.18. U.S. v. Adnan Khashoggi 717 FSupp 1048 (SD NY 1989); (SD NY #SSSS 87 CR 598 (JFK), 1990)

Def assisted Ferdinand/Imelda Marcos in purchasing property w/money from Philippines Gov't treasury. 10/88: Grand jury indicted Def, Marcoses under RICO: racketeering, conspiracy (20 yrs each), obstruction of justice, mail fraud (5 yrs each). 4/18/89: Def arrested in Switzerland.

• U.S. agreed not to prosecute Def on racketeering, conspiracy (crimes not recognized by Swiss Gov't). 7/19/89: Swiss extradited Def. U.S. Atty asked no bail: any bail meaningless against Def's wealth. Keenan, DJ, set $10 million bail. 7/26/89: 2nd Cir granted stay of bail. 3/13/90: Keenan, DJ: denied motions to dismiss, sever case from co-Defs Imelda Marcos, CA Overseas Bank. 6/90: After trial, jury acquitted Defs.

See PL-298/30.8; PL-299/31.1; PL-300/30.5; PL-393/30.9

  Ferdinand Marcos
PL-376/23.18. U.S. v. Alan Thomson (WD NY Cr 89-21-A, 1992)

12/9/87: Congressional Record published report describing Nat'l Council of American-Soviet Friendship (NCASF) as Soviet-funded front group. 2/89: Grand jury indicted Def-NCASF Exec Dir: depositing $17,000 for NCASF in bank in 2 transactions under $10,000, currency violation under new provision of Bank Secrecy Act designed to prevent money laundering. Pretrial discovery revealed FBI surveillance, 4 yrs infiltration of NCASF, over 100 tapes of Def's conversations w/ asst-FBI informant. FBI refused to release tapes to Def: "nat'l security." 8/91: Grand jury issued superseding indictment.

• 7/92: Def pleaded guilty to misdemeanor currency violation; sentence: $1,000 fine.

Morton Stavis, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Mahlon Perkins Jr, Jeffrey Schwartz

  Political Surveillance
- 24.1 -
e. CASES PENDING

PL-246/24.1. U.S. v. Carlos Zenon-Rodríguez, Pedro Saade (DC PR 1980); 652 F2d 1126 (1st Cir 1981); 711 F2d 476 (1983); 800 F2d 269 (1986)

1974: U.S. Navy moved bombing range from Culebra to Vieques, PR. 1/80: 11 fishing boats entered Vieques restricted area to protest effects on fishing industry/environment; Fishermen's Assn pres, atty (in boats) arrested: entering military danger zone (33 CFR §204.234, 33 USC §1). Def-Saade contended §204.234 valid only if based on 33 USC §3, not §1 as claimed by gov't. §3 proviso required target practice restrictions in order not to unreasonably interfere w/ fishing industry.

• 1980: Pérez-Gímenez, DJ: dism'd Def's attack on validity of §204.234; convicted Defs; sentence: 6 mths prison. Defs appealed: Dist Ct's failure to examine proper basis of §204.234 deprived remedy under §3 proviso. 6/30/81: 1st Cir, Bownes, CJ: §3 alone authorizes danger zone regs, remanded to determine if Navy regs unreasonably interfered w/ fishing. On remand, Torruella, DJ, denied Defs' motion to dismiss. 7/21/83: 1st Cir, Breyer, CJ, aff'd. On remand, Torruella, DJ: regs w/in statutory authority, no evidentiary h'g. 9/4/86: 1st Cir, Breyer, CJ, remanded so Dist Ct may conduct evidentiary h'g.

Michael Ratner, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Pedro Varela, Instituto Puertorriqueño de Derechos Civiles, Puerto Rico

  Puerto Rico Protest
PL-536/24.1. U.S. v. Manuel Noriega 683 FSupp 1373 (SD FL 1988); 746 FSupp 1506, 1541, 1548 (1990); 752 FSupp 444, 1032, 1037, 1045 (1990); mandamus den 917 F2d 1543 (11th Cir 1990); 764 FSupp 1480 (SD FL 1991); 808 FSupp 791 (1992); The Nation (12/2/91, p700); ABA Journal (6/92, p20)

1950s-1988: Def-army officer, head of state of Panama acted as informant to Drug Enforcement Admr, CIA. 2/4/88: U.S. indicted Def: 11 racketeering, drug counts. U.S. negotiated w/ Def to secure resignation, failed. 12/20/89: 25,000 U.S. troops invaded Panama, overthrew Def. 1/3/90: Def surrendered, U.S. forces arrested Def, aides: drug trafficking; brought to U.S.; froze Def's estimated $20 million int'l assets. 1/90: Def moved to dismiss: could not be tried for crimes committed/charges brought before beginning of hostilities; claimed POW status under (Geneva III) (6 UST 3316 (1949), PL-524/2.5); sought repatriation, removal to third country.

• 2/8/90: Hoeveler, DJ: denied motions; Def remained in custody. Gov't advised ct: Def afforded benefits of Geneva III, w/out agreeing Def-POW. 4/5/90: Def moved to dismiss: U.S. invasion for sole purpose of effectuating illegal arrest, depriving him of due process, killing numerous civilians. 4/90: Hoeveler, DJ, denied motion. 6/8/90: Hoeveler, DJ: found jurisdiction. 11/90: Cable News Network (CNN) obtained copies of gov't tapes of Def's phone conversations, asked Def's permission to air; Def moved to dismiss. 5/3/91: Hoeveler, DJ, denied motion: jail may have improperly recorded Def's phone conversations; DA improperly obtained tapes, violated FRCrimP 16,

- 24.2 -
17; Def's case not prejudiced: no 4th, 6th Amdt violations. 12/90-9/91: All of Def's untried former aides pleaded guilty, agreed to testify against Def in exchange for lesser sentences; Gov't granted immunity, reduced sentences, cash payments, witness protection program, deportation exemptions to many other witnesses; U.S. allowed Austrian bank to release $1.6 million for Def's attys; DJ ruled much evidence inadmissable under Classified Information Protection Act, including 1975 DoJ DeFeo Report proving gov't knew of Def's drug trafficking, DEA considered assassination when ex-Pres Bush was CIA Dir. After 8 mth trial, jury convicted Def on 8 counts. House Subcomm on Crime & Criminal Justice issued report: invasion/trial cost 100s of Panamanian, 23 U.S. lives, caused $1+ billion damages, cost U.S. $200 million; called for DoJ accounting of plea bargains for testimony against Def, Gov't Accounting Office audit of gov't payments to informants; cited DEA official's estimate: drug trafficking may have doubled since Def's ouster. At sentencing, Def reiterated POW status, claimed could not be confined in U.S. prison: Geneva III Arts 21, 22. 12/8/92: Hoeveler, DJ: Def POW-felon: may be confined in federal prison (Geneva III Art 108) so long as can be afforded humane treatment (Arts 25, 29); "open to serious question" whether maximum security penitentiary can comply w/ Geneva conditions; Geneva III is self-executing "law of the land in U.S.": provides Def w/ cause of action in U.S. ct. Appeal pending.

Frank A Rubino, Coconut Grove, FL; Human Rights Watch, amicus on POW issue

See PL-524/2.5

  Arrest of Head of State
PL-377/24.2. U.S. v. Ted Thomas (DC NV #CR-5-89-156-PMP, 1989)

1987: Shoshone Indian Tribal Authority disputed Gov't claim to NV Test Site land under Ruby Valley Treaty of 1863, granted permits for Peace Camp to anti-nuclear protesters. 3/89: U.S. Bureau of Land Management (BLM) obtained ct order to eject protesters. 4/89: 10-day demonstration at Peace Camp, over 100 arrested. 6/22/89: Def arrested as BLM dismantled camp: trespassing, failure to comply w/ fed'l regs.

• 10/89: Pro, DJ, denied testimony from Shoshone witnesses. 10/18/89: Jury convicted Def. 11/2/89: Def refused probation, sentence: 90 days. Appeal pending.

Yito R De la Cruz, Fed'l Public Defender, 330 S 3rd St #700, Las Vegas, NV 89102

  Native American Rights
PL-380/24.2. U.S. v. David Abeles (WD WA #CR90-1001 FDB); (9th Cir)

11/21/89: 26 Defs sat down outside Fed'l Building, Olympia, WA to protest U.S. policy toward El Salvador, talk to Rep Unsoeld in her office. Police warned Defs not to block doors; Defs moved. Police warned Defs to clear stairway entirely; Defs refused. Police, Fed'l officers arrested Defs: violation of order to disperse.

• 4/90: Trial before U.S. Magis: Defs asserted civil resistance; not civil

- 24.3 -
disobedience: 1st Amdt rights of free speech, peaceable assembly, petitioning gov't; stat unconstitutionally applied. Magis dism'd 23 Defs arrested by City police: not authorized to make arrests on fed'l property. 2 Defs pleaded nolo; Magis entered guilty verdict: 5 days, $50 fine, both suspended. Appeal pending to DC.

John Thorne, 1625 Delphi Rd SW, Olympia, WA 98502

  El Salvador
PL-537a/24.3. U.S. v. Exxon Corp, Exxon Shipping Co (DC AK Crim No A90-015)

3/24/89: 11 million gallon oil spill in AK waters. See PL-537/34.5. 2/27/90: Fed'l grand jury indicted Def on 5 counts: violations of Clean Water Act, 33 USC §§1311(a), 1319(c)(1); Refuse Act, 33 USC §§407, 411; Migratory Bird Treaty Act, 16 USC §§703, 707(a); Ports & Waterways Act, 33 USC §1232(b)(1); Dangerous Cargo Act, 46 USC §3718(b). 4/10/90: Def pleaded not guilty. 1/91: Gov Hickel proposed dropping all state, fed'l lawsuits against Def for damage done by oil spill in exchange for $1.2 billion to restore Prince William Sound. 3/13/91: Def, AK, U.S. Gov't announced $1.1 billion settlement of criminal, civil cases brought by Gov'ts against Exxon, including $100 million fine for criminal violations, grant of immunity to owners of Alyeska Pipeline Service Co.

• 3/23/91: Def pleaded guilty to misdemeanor charges pursuant to settlement agreement. 4/24/91: Holland, DJ, rejected criminal settlement: $100 million fine insufficient; gave Def 1 mth to withdraw from criminal plea agreement or allow ct to set fine. 5/25/91: Def withdrew guilty pleas. Trials pending.

See PL-537/34.5

  Oil Spill
PL-843/24.3. U.S. v. Charles Liteky, John Liteky, Father Roy Bourgeois 973 F2d 910 (11th Cir 1992); cert granted 113 SCt 2412 (1993)

1983: Father Bourgeois arrested in protest at Ft Benning. Elliot, DJ, presided at trial: convicted. 11/16/89: Army School of Americas (ASA) trainees killed 6 Jesuit priests, 2 civilians in El Salvador. 11/16/90: Defs entered Ft Benning Military Reservation, doused ASA in blood; arrested: willfully injuring gov't property (18 USC §1361). 1991: Defs filed pretrial motion for recusal (28 USC §455 (a)): DJ Elliot's intemperate remarks in Bourgeois' 1983 trial reflected personal bias against him, in favor of gov't in civil disobedience cases.

• 1991: Elliot, DJ, denied recusal motion: ct not permitted, as matter of law, to consider any bias arising in connection w/ judicial proceeding. During trial, Elliot, DJ, allegedly confronted Defs, belittled, demeaned their deeply held religious convictions, refused to hear testimony on material facts. Elliot, DJ, found Defs guilty. 1991: Defs appealed denial of recusal motion: judicial bias need not stem from extra-judicial source. 9/28/92: 11th Cir denied: "matters arising out of the course of judicial proceedings are not a proper basis for recusal". 5/24/93: USSC granted Defs' petition for cert based on 902 F2d 1018 (1st Cir 1990),

- 24.4 -
975 F2d 81 (3rd Cir 1992), legislative history, statutory language. Pending.

Peter Thompson, 2520 Park Ave South, Minneapolis, MN 55404

  Protestors
PL-935/24.4. U.S. v. Christopher P Drogoul (ND GA 1993)

1982: Pres Reagan allegedly orchestrated top-secret illegal weapons transfers to Iraq from NATO stocks. 1984-89: Def-Atlanta branch manager, Italy's state-owned Banca Nazionale del Lavoro (BNL), loaned $5.6 billion guaranteed by U.S. Dept of Agriculture to Iraq (Saddam Hussein) to buy tanks, war planes, ballistic missiles, material to produce chemical weapons, nuclear bombs. 8/89: FBI raided BNL-Atlanta, found evidence of illegal loans to Iraq. 10/2/89: Pres Bush signed Nat'l Security Directive 26 (classified) approving helping Iraq defeat Iran. Dept approved export to Iraq of equipment to develop nuclear bombs. 10/89: CIA wrote 3 classified reports indicating BNL-Rome officials knew of BNL-Atlanta actions. 2/91: DoJ charged Def: 347 counts of bank fraud for making loans w/out knowledge of BNL-Rome, receiving $2.5 million bribes in exchange; also charged 5 BNL-Atlanta officers. 9/17/92: CIA letter to U.S. Prosecutor: CIA had no independent secret information re case. 9/29/92: Sen Intelligence Comm leaders of both parties sent letter to CIA Dir Gates: CIA misled DoJ, fed'l prosecutors/judge re existence of classified reports.

• 10/92: Shoob, DJ, criticized U.S. for failure to "investigate seriously" whether BNL-Rome knew BNL-Atlanta was violating bank policy re Iraq loans. 10/6/92: CIA acknowledged failure to provide DoJ w/ all classified reports re case, gave DoJ incorrect information. Prosecution allowed Def to withdraw guilty plea, asked Shoob, DJ, to withdraw from case; Shoob agreed. Trial pending.

  Loans to Iraq
PL-867/24.4. U.S. v. Jimmy Smyth (ND CA 1992); (9th Cir 1992)

1983: Def serving 20 yr sentence for attempted murder in Maze Prison, N Ireland, escaped, fled to San Francisco. 1984-92: Def lived/worked w/out arrest; obtained false passport; traveled between U.S./N Ireland 3 times. 6/92: Def arrested: passport fraud; detained for possible extradition to N Ireland. Def: feared for life; sought political asylum.

• 7/92: Caulfield, DJ: granted Def bail after UK served Def w/ "no bail" extradition warrant. 7/30/92: 9th Cir aff'd (2-1). 6/93: Caulfield, DJ: ordered UK gov't to produce secret reports of its alleged involvement in N Ireland killings. Pending.

Karen Snell, Deputy U.S. Public Defender

  Irish Republican Army
PL-684/24.4. Alabama v. Driskill, Hardman, Lane (ND AL 1992); Klanwatch Intelligence Report (6/92)

4/18/92: 3 Defs-members of Aryan Nat'l Front, Confederate Hammer Skins, allegedly stabbed to death Benny Rembert, homeless

- 24.5 -
black man; 1 Def attended supremacist rally hosted by ex-KKK member Bill Riccio, alias William Davidson, night before murder. 4/12/92: 2 Defs arrested: murder. 4/6/92: other Def surrendered.

• 5/11/92: Preliminary h'g: Defs held on $100,000 bond. Pending.

Southern Poverty Law Center, 400 Washington Ave, Montgomery, AL 36104

  Hate Crimes
- 25.1 -
2. STATE
a. CASES WON AT TRIAL COURT LEVEL

PL-21/25.1. California v. Debra Block (Galt Muni Ct, Sacramento Cty, Crim Nos 3235-3245)

3/31/79: 11 Defs demonstrated against nuclear power at Rancho Seco Nuclear Power Plant; arrested: trespassing, resisting arrest.

• 8/79: Balding, Muni J: allowed necessity defense, gave jury instructions on necessity. Jury hung. At new trial, Muni J: would permit necessity defense; DA dism'd case.

Alan Ramo

  Nuclear Power
PL-108/25.1. California v. McMillan (San Luis Obispo Jud Dist #D00518); 45 Guild Practitioner 1 (1988)

9/14-28/81: 14 Defs blockaded Diablo Canyon Nuclear Power Plant to prevent loading of fuel rods, beginning of low-power testing for which Pacific Gas & Electric had been granted license; arrested.

• Chotiner, Muni J: allowed 11 expert witnesses for Defs re seismic activity in area, potential harm emanating from plant in event of earthquake; allowed Defs to testify re subjective reasons for blockading, personal fears. J filed long written opinion upholding necessity defense. DA did not appeal decision, dism'd charges.

  Nuclear Power
PL-24/25.1. California v. John Lemnitzer (Pleasanton-Livermore Muni Ct, Alameda Cty, Crim No 27106E)

2/1/82: Def demonstrated against development of nuclear weapons at Lawrence Livermore Lab; arrested: obstructing roadway.

• Muni J allowed necessity defense; jury hung (7-5). Def retried; J did not allow instructions on necessity defense, did allow instructions on malice. Jury acquitted Def.

Robert A Van Nest, Keker & Brockett, 710 Sansome St, 94111; Monte S Travis, 2001 Fillmore St, 94115; both San Francisco, CA

  Nuclear Weapons Protest
PL-6/25.1. Colorado v. Bates (Larimer Cty Ct Nos F83M0552, F83M0557, F83M0558)

3/19/83: 8 protestors blocked "white train" transporting nuclear weapons through Fort Collins, CO; arrested: obstructing Gov't operations, obstructing railway. Defs filed pretrial motions, memos on Nuremberg Principles, int'l law, public health/safety, necessity, religious beliefs.

• 12/7/83: Schultz, J: denied Defs' right to present 40 expert witnesses. J granted continuance; later dism'd for failure to hold speedy trial.

Bradley W Johnson, 116 N College Ave, Ste 1, Fort Collins, CO; Walter L Gerash, Gerash, Robinson & Miranda, 1439 Court Pl, 80202; Sander N Karp, 1100 Stout St; both Denver, CO

  Nuclear Weapons Protest
- 25.2 -
PL-48/25.2. Michigan v. Jones; Michigan v. Heyer; Michigan v. Hamm (Oakland Cty Dist Ct, 52nd Dist, 1st Div, Nos 83-101194-101228); 42 Guild Practitioner 126-27 (1985)

11/28-12/2/83: 51 Defs blocked employee access to Williams Int'l plant where cruise missile engines produced; arrested: criminal trespass, disturbing peace, blocking ingress/egress to place of employment, conspiracy to commit offenses. Defs tried in 9 separate trials.

• 3/2/84: Trial Ct in allowed necessity defense; denied int'l law, Nuremberg defenses. Jury acquitted on all charges but failure to obey traffic officer. 4/9/84: Trial Ct in (4 trials) allowed necessity defense; some jury selection by Defs in 4 trials. Jury acquitted all Defs. 4/4/84: Trial Ct in (4 trials) ruled necessity, int'l law, Nuremberg defenses not available. Little or no jury selection by Defs. Jury convicted on all counts in 2 trials; acquitted on factual grounds in 1 trial; 1 trial pending.

Thomas M McGuire, Deborah Choly, Frederick Miller, Douglas R Mullkoff, Ernest Goodman, Neal Bush, Alfred Millstein, James A Carlin, Detroit, MI

See PL-136/36.1

  Nuclear Weapons Protest
PL-119/25.2. Washington v. Johnston; Washington v. Tenhoff (Kitsap Cty Dist Ct North, Nos 84-3537-N, 84-1-00456-6, 84-1-00458-2)

7/27/84: 23 demonstrators arrested at protest of arrival of "white train" at Naval Sub Base at Bangor, WA: obstructing, delaying lawfully operated train (RCW 81.48.020).

• Defs divided into 3 trial groups. Charges against 1st group dism'd at request of Cty: prosecution could not prove train was being operated lawfully, so failed to present prima facie case. Charges against second 2 groups dropped at request of Def. 12/17/84: Prosecution appealed dismissal of second 2 cases. 1/18/85: Defs filed motion in opposition to Govt's motion in limine based on int'l law, Nuremberg Principles; to dismiss appeal. 11/8/85: DA requested dismissal; Ct granted.

Rachel Levy, Lynn Greiner, Daniel Hoytsmith, pro se; John Midgley, Joan Johnston, Ted Dzielak, Brad Spear

See PL-33/28.6; PL-77/25.5; PL-117/28.3

  Nuclear Weapons Protest
PL-39/25.2. Vermont v. Jeanne Keller (Winooski 44)

(Chittenden Cir Dist Ct, Unit 2, No 1372-4-84-CNCR); 42 Guild Practitioner 97-98 (1985)

3/24-27/84: 26 Defs staged sit-in at Winooski office of U.S. Sen Robert Stafford (R) to pressure him to hold public meeting on U.S. policy in Central America; arrested: trespass. Defs submitted memo: Defs' actions justified under int'l law, Nuremberg Principles, 1st, 14th Amdts.

• Mahady, Dist J: allowed necessity defense, gave instructions on all defenses, permitted Def expert witnesses: Sonya Hernández (political violence in El Salvador), Janet Shenk (human rights in El

- 25.3 -
Salvador), Phil Bourgois (Salvadoran refugees), Shaila Sherwin (refugees), David Rosenberg (U.S./contra war on Nicaragua), David McMichael (contra aid), Richard Garfield (health programs of Nicaraguan Gov't), John Stockwell (CIA activities), Howard Zinn (history of U.S. protest movements), Matthew Countryman (U.S. military aid to Central America), Gladys Sánchez (Gov't repression of Salvadoran churches), Richard Falk, Ramsey Clark (citizens' role in U.S. foreign policy). 11/17/84: Jury acquitted Defs.

William M Dorsch, 29 Pine St, Burlington, VT; Olin R McGill, RD 3 Hallady Rd, Middlebury, VT; William Nelson; Sandra Baird; Linda L Vance; Joan Bauer; John McCullough

  Central America
PL-25/25.3. California v. Biscovich (Chico Muni Ct, Butte Cty, Nos 21593-5, 21517-8)

4/9/84: 6 Defs staged sit-in at office of Rep A Chappie to protest U.S. Gov't policy toward Central America; arrested: trespass. Pretrial briefs argued U.S. policies violate fed'l laws, Defs' actions justified under 1st Amdt, int'l law.

• At jury trial, Defs made extensive offer of proof; Rutherford, Muni J: only allowed evidence on 1st Amdt defense. In third day, after DA rested, Defs moved to dismiss: charges false: entered legally. 6/84: J dism'd charges.

Paul T Persons, 1834 Arroyo Canyon Rd, Chico, CA; Lucy Quacinella, Teddora DeLorenzo

  Central America
PL-123/25.3. Illinois v. Jarka (19th Jud Cir Ct, Lake Cty, Nos 002170, 002196-002212, 00214, 00236, 00238); 42 Guild Practitioner 108-10 (1985)

11/13/84: Protest at Great Lakes Naval Base against U.S. involvement in Central America, increases in arms buildup; 19 arrested: mob action, resisting arrest. DA dism'd charges against 12. Remaining Defs entered necessity defense based on Nuremberg Principles, int'l law.

• Jury heard testimony: mining of Nicaraguan harbor violated int'l law, occurred w/out knowledge of U.S. Sen. 4/15/85: Jury acquitted Defs.

Shelley A Bannister, Margaret Byrne, Janin L Hoft

  Central America
PL-59/25.3. California v. Steven Biko Trials I, II, III (Berkeley-Albany Muni Ct, Alameda Cty, No 103349)

4/16/85: 159 anti-apartheid protestors arrested on steps of Sproul (Steven Biko) Plaza, at U of CA-Berkeley: trespassing, blocking public entrance, lodging; 32 also charged w/ resisting arrest. DA dropped charges against all except those charged w/ resisting. Defs divided into 3 groups for trial.

• In first trial, J dism'd trespassing, lodging charges, instructed jury on 1st Amdt; 6/28/85: Jury acquitted on blocking public entrance, voted 7-5 in favor of acquittal on resisting arrest. In second trial, J did not instruct on 1st Amdt; 7/1/85: Jury acquitted Defs of blocking public

- 25.4 -
entrance, voted 10-2 in favor of acquittal on resisting arrest. DA decided not to refile in both cases on resisting. 10/85: DA dropped charges on remaining Defs prior to third trial.

Jane R Kaplan, Anna De León, Terry Koch, Dan Seigel, Thomas V Roland

  Apartheid
PL-128/25.4. New York v. Daughtry (City of New York Crim Ct No 4N102344)

12/84: Def arrested during anti-apartheid demonstration.

• 12/19/84: On the record, DA supported Def's motion to dismiss on basis that Def exercised 1st Amdt rights in nonviolent manner.

Alton H Maddox, Randolph S Glaughin, Cecil V Mason, Howard Burns, Paul O'Dwyer, Gerald Horne, Vickie Erenstein, Antonio Ricco

  Apartheid
PL-121/25.4. Chicago v. Streeter (Cook Cty Muni Ct); 42 Guild Practitioner 110-11 (1985)

1/15, 2/7/85: 8 demonstrators arrested at Chicago office of S African Consulate: trespassing.

• 5/17/85: J allowed necessity defense, expert witnesses on apartheid, anti-apartheid measures (including Sen Paul Simon (D-IL), Rep Charles Hayes (D-IL)). In nation's first full trial of Defs arrested while protesting apartheid, jury acquitted after 2½ hrs deliberation.

Timothy W Wright III, David E Neely, Nancy Gaitskill, Thomas J Royce, Lewis Meyers Jr, Clarence I Burch, Julie Aimen

  Apartheid
PL-151/25.4. Washington v. Heller (Seattle Muni Ct 1985)

8 Seattle physicians protested apartheid on porch of S African consul's private residence; arrested: criminal trespass.

• Muni J allowed necessity defense, expert witnesses on living conditions under apartheid; Defs, as physicians, testified on medical effects of apartheid, introduced S African consul's personal phone records to prove he was operating consulate out of home, therefore gave up right to privacy. J instructed jury on necessity, required DA to prove absence of necessity. 8/7/85: Jury acquitted Defs. In post-trial comments, jury stated: only when arrests made in protests against apartheid were efforts made to reform system.

Janet Rice

See Seattle Coalition Against Apartheid, PL-44/35.1

  Apartheid
PL-145/25.4. California v. Auchard (Berkeley-Albany Muni Ct, Alameda Cty)

6/19/85: Students sought to talk to U of CA president re U divesting financial ties to S Africa; 7 arrested: trespass, resisting arrest, battery (of sec'y).

• DA stipulated to jury instruction on right to entry for "lawful business purpose" exception to trespass charge. Defs' attys (private, ct-appointed, public defender) conducted extensive voir dire on attitudes

- 25.5 -
toward authority; J gave very narrow 1st Amdt instruction. 10/24/85: Jury acquitted 2 on battery, 1 on resisting, hung (11-1 for acquittal) on all other charges. DA will not retry.

Richard Koch, Michael Freund, Malcolm A Smith, Linda Fullerton, James R Jenner, Peter W Saltzman, Ross Hammond

  Aparheid
PL-147/25.5. Oregon v. Baugh (Multnomah Cty Dist Ct No DA 291664)

12/84, 1/85: 27 Defs arrested during anti-apartheid demonstrations at office of Honorary Counsel of S Africa: attempted 2d degree trespass.

• 6/85: Trial J granted Defs' motion to dismiss, finding charge unconstitutionally vague, overbroad; violating Defs' free speech, due process rights. DA did not appeal.

Mark Kramer, Douglas A Swanson, Diane Alessi

  Apartheid
PL-77/25.5. Washington v. Brown (Kitsap Cty Dist Ct North No 85-1295N, 1985)

2/22/85: 24 protestors held vigil on U.S. Navy property at Burlington Northern railroad tracks leading to Bangor, WA, where "white train" carrying nuclear weapons scheduled to travel. State arrested 20: criminal trespass, conspiracy. Defs filed extensive briefs on right to present defenses to jury, in support of motion to dismiss conspiracy charges, in opposition to State's motion in limine.

• Phillips, J, dism'd conspiracy charges: pre-protest meetings demonstrators had w/ sheriff's deputies aimed at promoting peace rather than creating illegal confrontation; did not admit evidence on necessity defense, did allow Daniel Ellsberg to testify as expert about why first-strike nuclear warheads on train, potential danger to peace. 1 Def pleaded guilty to both charges. 6/22/85: Jury acquitted all 19 tried.

Kate Pelaumer, William J Bender, John J Midgley, Theodore Dzielar

See PL-117/28.3; PL-119/25.2

  Nuclear Weapons Protest
PL-85/25.5. Michigan v. Lagrou (Oakland Cty Dist Ct Nos 85-000098, 99, 100, 102); 42 Guild Practitioner 126-27 (1985)

3 Defs demonstrated at Williams Int'l plant against manufacture of cruise missile engines; arrested: trespass, maliciously defacing fence.

• 3/22/85: Boyle, Dist J: 2 Defs willfully trespassed, but under duress; 1 Def acted w/out malice; acquitted Defs.

Daniel James Lagrou, Thomas Gordon Lumpkin, Marietta Louise Jaeger, all pro se

See PL-136/36.1; PL-48/25.2

  Nuclear Weapons Protest
PL-141/25.5. New York v. Boylan (Village of Lake Success Justice Ct)

5/5/85: 2 Defs displayed banner: "Christ Died for Love — Sperry Kills for Profit" in roadway adjacent to entrance of Sperry Plant at Lake

- 25.6 -
Success, causing traffic delay; arrested: disorderly conduct. Defs submitted Memo of Law based on justification (NY Pen C 35.05), 1st, 14th Amdts.

• 9/19/85: J: Defs guilty of disorderly conduct; did not impose any jail, fine or service.

Robert Boehm, 500 5th Ave, NY, NY 10036

  Nuclear Weapons Protest
PL-148/25.6. Washington v. Karon (Benton Cty Dist Ct Nos J85-1136-39)

8/9/85: 4 Defs blockaded U.S. Gov't Plutonium-Uranium extraction facility at Hanford Nuclear Reservation; arrested: disorderly conduct (RCW 9A.84.030 (1)), failure to disperse (RCW 9A.84.020). Defs filed motions in limine to raise necessity, Nuremberg principles, Geneva, Hague Conventions as defenses.

• Platts, Ct Commr, allowed Nuremberg, necessity defenses, permitted expert testimony re radiation contamination; refused expert testimony re nuclear war, agreed to give int'l law instruction to jury. 12/10/85: Immediately after ruling permitting scientists to testify on radiation contamination, DA moved to dismiss; granted.

Daniel N Clark, Michael E De Grasse, Raymond L Williams

  Nuclear Weapons Protest
PL-172/25.6. New Jersey v. Driscoll (New Brunswick Muni Ct #S5484432)

4/5/86: Defs-members of Right to Housing, other orgs, demonstrated at Johnson & Johnson offices to publicize Co's investments in S Africa, contribution to New Brunswick's housing problems; 16 arrested: criminal trespass (NJSA 2C: 18-3). Defs planned defenses of necessity, Nuremberg Principles, statutory justification (NJSA 2C: 3-10).

• Johnson & Johnson dropped charges on day of trial w/out explanation.

William J Volonte

  Homeless
PL-165/25.6. Nevada v. Vitale (Nye Cty Just Ct, 1986)

3/28/86 (Good Friday): numerous Defs blockaded entrance road to NV Nuclear Weapons Test Site; arrested: pedestrians on highway, disobedience to law officers.

• Ct dism'd charges: arresting officers cited incorrect stats.

Dan Clark, Carl Maxey

  Nuclear Weapons Protest
PL-183/25.6. Richland, WA v. Barnes (Benton Cty Dist Ct #38323)

8/6/86: On Hiroshima Day, 29 people blocked road to Hanford Nuclear Reservation; arrested: disorderly conduct. 11 pleaded guilty to violation of muni ordinance under negotiated plea: 1 day jail, credit for time served, $25 fine. Those pleading not guilty released on own recognizance on identifying selves. Defs' trial brief raised claims of lawful authority, including int'l law, Nuremberg Principles, necessity;

- 25.7 -
sought h'g on admissibility of expert testimony by Richard Falk, JD; Carl Johnson, MD; Prof Jim Brown, PhD; Wes Wallace, MD; Prof James Warf, PhD, Allen Benson, PhD.

• 10/31/86: Pratt, J, dism'd on own motion: disorderly conduct ordinance unconstitutionally vague, making it a misdemeanor to obstruct traffic w/out lawful authority.

Daniel N Clark

  Nuclear Weapons Protest
PL-161/25.7. Colorado v. Keranen (Boulder Cty Ct Nos 85 M 2172, 2204)

1985: Students at U of CO requested U officials ban CIA recruiters from campus; denied. Community in Action, student org, requested Boulder Cty DA to prevent recruiting, citing CIA violations of int'l law in Nicaragua. DA denied request. Over 400 students later demonstrated, attempted "citizen's arrest" of CIA recruiters; 4 Defs arrested: attempted trespass, obstructing peace officer, interference w/ staff, faculty. 4/17/86: Defs' motion argued right to raise choice of evils, int'l law (OAS, PL-370/2.1), Nuremberg Principles defenses.

• J allowed choice of evils, citizen's arrest defense, subpoena of several Reagan officials including North, Secord, Singlaub, Poindexter. DA dropped charges.

Walter L Gerash, George Johnson

See PL-245/25.9

  CIA Recruiting
PL-174/25.7. Colorado v. Bock (Denver Cty Ct)

6/12/85: 22 Pledge of Resistance members occupied Denver office of Sen Armstrong to protest U.S. policy in Central America; arrested: criminal trespass.

• Madsen, J: accepted pretrial offers of necessity, Nuremberg defenses, CO Public Duty Statute. DA appealed pretrial ruling to Dist Ct. 2/27/86: Cisneros, DJ: aff'd rulings. 6/25/86: Madsen, J: instructed jury it must find Defs' actions necessary as "emergency measure to avoid imminent public or private injury," but that injury did not have to involve Defs (first time CO judge permitted "choice of evils" law in political protest trial). Jury acquitted all Defs.

Kenneth Gordon

  Central America
PL-156/25.7. California v. Whalen (Fresno-Clovis Muni Ct No M97274-5)

9/27/85: 11 members, Latin American Support Comm occupied office of Cong Charles Pashayan to protest U.S.-supported bombing of El Salvador; arrested: criminal trespass. DA offered not to prosecute if Defs accepted 6-mth probation; Defs declined.

• Muni J refused to instruct jury on 1st Amdt; did not admit evidence on necessity, int'l law, Nuremberg defenses; allowed testimony from Fresno city council member, two members of religious community, member of Medical Aid for El Salvador. 2/10/86: Jury hung (3 for

- 25.8 -
acquittal); Defs agreed to 6-mth disposition (dismissal if no new arrests).

Calvert & Milrod; 10 Defs pro se

  El Salvador
PL-167/25.8. Connecticut v. Prentice (Hartford-New Britain Super Ct Nos CR 15-90798-90814)

3/19/86: 13 Defs-Pledge of Resistance members occupied New Britain office of Rep Johnson after she refused to meet to discuss her support of aid to Nicaraguan contras; Defs refused to leave after building manager's order; arrested: trespass.

• Defs' pretrial motions raised 1st Amdt issues of free speech, association, right to petition; argued that Congressional staff, not building manager, had legal authority to order vacation of premises. Defs subpoenaed Rep Johnson, she refused to testify. 6/3/86: DA offered to accept nolo pleas, claiming ctroom improper forum for "political nature" of dispute. J granted Defs' motion to dismiss.

Jay F Malcynsky, Jon L Schoenhorn

  Contra Aid
PL-204/25.8. Nevada v. Cocks (Beatty Township Justice Ct, Nye Cty, #1449)

11/17/86: Jessie Cocks, Peter Bergel, organizers of anti-nuclear demonstrations at NV Test Site, arrested: conspiracy to trespass (gross misdemeanor, punishable by 1 yr jail). (Previous test site Defs charged w/ simple trespass, disturbing peace: 1st offense-$150 fine; 2nd offense-$50 fine, 2½ days jail; 3rd offense-$75 fine, 5 days jail.)

• 10/87: DA dism'd charges w/out explanation 2 weeks before trial.

C Stanley Hunterton

See PL-202/28.9; PL-203/28.11; PL-205/25.8; PL-206/26.1

  Nuclear Weapons Protest
PL-205/25.8. Nevada v. MacMurdy (Beatty Township Justice Ct, Nye Cty, #11-2759A, 11-2943A)

10/27/86: Def-organizer of anti-nuclear demonstrations at NV Test Site for NV Desert Experience, arrested: conspiracy to trespass (gross misdemeanor, punishable by 1 yr jail).

• 1987: At preliminary h'g Def argued no probable cause for conspiracy: DA failed to name coconspirator. Trial J dism'd.

C Stanley Hunterton

See PL-202/28.9; PL-203/28.11; PL-204/25.8; PL-206/26.1

  Nuclear Weapons Protest
PL-201/25.8. Arizona v. Herbert Kahn (Phoenix Muni Ct #9895516-OC)

8/6/86: 3 Defs protested U.S. nuclear weapons tests in lobby of DoE office; arrested: trespass. 2/27/87: State stipulated nuclear testing/weapons dangerous, Gov't policy wrong, eliminating need for expert witnesses on nuclear dangers.

- 25.9 -

• 2/27/87: J allowed 1st Amdt, denied necessity defense: 10 minutes in DoE lobby did not constitute non-peaceful assembly; Defs properly exercising rights of free speech, assembly; acquitted.

Herbert Kahn, pro se

  Nuclear Weapons Protest
PL-303/25.9. California v. Sheer (San Francisco Muni Ct 1987)

12/12/86: 28 protestors attempted to enter CIA offices; arrested: Infraction 22 (CA) (precluding jury trial). 14 Defs pleaded nolo, accepted 40 hrs community service.

• 3/9/87: 3 Defs pleading not guilty brought to trial. After viewing police videos, J dism'd charges.

Richard Koch

  Anti-CIA Protest
PL-245/25.9. Colorado v. Erb (Boulder Cty Ct, Cr #86 M2511, Div 8); 45 Guild Practitioner 33 (1988)

11/86: Hundreds protested CIA's recruiting activities at U of CO. 16 attempted citizens' arrest of CIA recruiters under 18-1-1707 CRS 1973, 16-3-202 CRS 1973; arrested: resisting arrest, interference. Defs offered affirmative defense (under 18-1-1407 CRS 1973): privilege to prevent law breaking — CIA recruiting is overt act engaged in intentionally to further unlawful purposes of CIA, thus illegal conspiracy in jurisdiction — violating Neutrality Act, Arms Export Control Act, int'l law by helping Contras; listed prospective Def witnesses on facts, law: Edgar Chamorro, Reed Brody, Ralph McGehee, Profs Ved Nanda, Francis Boyle; sought subpoenas duces tecum against: William Casey, Oliver North, Gen'l Singlaub, Richard Secord.

• 8/21/87: Bailin, J: granted Defs' request to present defenses of choice of evils, citizens' arrest, to introduce evidence on both; permitted 7 subpoenas duces tecum to Defs' witnesses, State to pay ½ costs because ½ Defs indigent. DA dism'd all charges before trial. CIA canceled 11/16/87 recruitment visit to U of CO.

George A Johnson, 595 Canyon Blvd, Boulder, CO

See PL-161/25.7

  CIA Recruiting
PL-187/25.9. Massachusetts v. Carter (Hampshire Dist Ct No 86-45 CR 7475, 1987)

11/24/86: Amy Carter, Abbie Hoffman, 58 others protested CIA recruiting at U of MA-Amherst; arrested: disorderly conduct, trespass, disturbing school. Defs filed 24 page memo raising int'l law, Nuremberg Principles, necessity defenses, CIA activities in Central America.

• 4/15/87: J allowed defenses, expert witnesses: former contra leader Edgar Chamorro, former CIA officer Ralph McGehee, Daniel Ellsberg, Ramsey Clark-U.S. Atty Gen'l under Pres Johnson. 6 member jury acquitted all 15 Defs.

Leonard I Weinglass, Elizabeth O'Connor Tomlinson, Thomas Lesser, Steven C Schlang

  CIA Recruiting
- 25.10 -
PL-220/25.10. Missouri v. Kathryn Benson (Columbia Muni Ct, Boone Cty, 1987)

1986-87: Students, others, built, occupied several "shanties" on U of MO grounds in symbolic protest of U.S. investments in S Africa. 2/6-7/87: U destroyed shanties; numerous anti-apartheid demonstrators arrested: trespass. 5/87: U dropped charges against all except one representative Def. Def filed motion to dismiss, extensive proposed findings of fact, conclusions of law.

• 12/17/87: Horner, Assoc Cir J, denied Def's motion to dismiss: Def not guilty; filed findings, conclusions. ACLU, defending group, agreed to pay $33 Ct costs. Actions gave rise to other outcomes: shanties built in other parts of city, demonstrations began at U demanding increased attention to affirmative action, end to racism at U. Arrests of original protestors generated controversy over strip-search policies at Boone Cty Jail.

Dan Viets, ACLU

  Apartheid
PL-219/25.10. Washington v. Bass (Thurston Cty Dist Ct Nos 4750-038, -395 to -400)

4/8/87: 30-40 Evergreen State College students sat-in at state capitol in support of S Africa divestment bill. State Patrol ordered them to disperse; 7 refused to obey, arrested: disorderly conduct.

• Stilz, J: denied Gov't motion in limine to suppress necessity defense. 10/20/87: During jury trial, Defs presented defenses: necessity, Nuremberg, UDHR, (PL-96/2.1), (PL-97/2.2), (PL-100/2.3), ICJ Stat on sources of int'l law; expert witnesses: Miriamu LeTyee, Seattle Anti-Apartheid Org; Randy Carter, American Friends Service Comm. 11/9/87: Jury acquitted Defs.

John Thorne, Jason McCarty

  Apartheid
PL-192/25.10. Nevada v. Nevada Test Site Protestors (Beatty Township Justice Ct, Nye Cty)

5/10/87: 3500 people registered at Mother's Day Action in support of comprehensive nuclear test ban.

• Police nominally arrested, handcuffed, led into buses unknown number of protestors; issued citations: some lacked names, some lacked signature of arresting officer; some arrestees gave obviously false names. Police brought arrestees back to test site, released them. Some arrested twice. No further action.

Dave Phillips

  Nuclear Weapons Protest
PL-302/25.10. Nevada v. Brooks (Beatty Township Justice Ct, Nye Cty, #11-2800, et seq)

2/5/87: 2,000 protested at NV nuclear weapons test site, including Daniel Ellsberg, Martin Sheen, Kris Kristofferson, arrested: misdemeanor trespass (NRS 207.200).

• Ct convicted fewer than 100 Defs; many received $10 ct cost levy.

- 25.11 -
Nye Cty Commrs (2-1) adopted policy of not arresting/prosecuting anti-nuclear weapons protestors at test site's Mercury entrance. DA dism'd charges against Carl Sagan, other American Public Health Assn protestors. 4/6/87: DA filed motion in limine to bar Defs from presenting duress, necessity, choice of evils defenses. 4/27/87: Defs proposed defense of resistance to public offense, int'l law defense against U.S. nuclear policy, brief on necessity defense. Whittaker, J of Peace, decided to postpone ruling on in limine motions "for a few weeks." 4/30/87: DA dropped charges against remaining Defs.

Defs pro se, assisted by Al Marquis, John Burroughs

  Nuclear Weapons Protest
PL-222/25.11. California v. Jerome (Livermore-Pleasanton Muni Ct, Alameda Cty, Traffic Div Nos 5450895, 5451038, 5516177, 5516159)

4/17/87 (Good Friday): Over 30 Defs blocked main gate to Lawrence Livermore Nuclear Weapons Lab by nonviolent sit-in; arrested: blocking, delaying traffic (Vehicle C §21950(b)).

• 7/8/87: Traffic Commr agreed to consider expert testimony on necessity defense, int'l law (including Nuremberg Principles, Geneva Protocols, Hague Convention) via affidavits. Defs filed affidavits of Daniel Ellsberg (on effectiveness of nonviolent protests in arousing citizen action), Frank Newman (on int'l law), Charles Schwartz (on role of Lab in promoting arms race); trial set for 10/20/87. 10/87: J granted DA request that all charges be dropped.

Stephen Brannon, Lynda Burton, Andrew Lichterman, John Burroughs, Western States Legal Foundation

  Nuclear Weapons Protest
PL-199/25.11. Vermont v. McCann (Chittenden Cir Dist Ct, Unit 2, #2857-7-86-CNCR); unreported opinion, 44 Guild Practitioner 101 (1987); 521 A2d 75 (VT Sup Ct 1987)

6/27/86: Def protested manufacture of Vulcan gun (rapid-fire air-to-ground cannon) at Gen'l Electric Plant in Burlington; arrested: disorderly conduct (13 VSA §1026 (5)) for blocking traffic.

• 1/26/87: Mahady, J, filed 20 page opinion citing state, nat'l authorities: Def may present evidence on necessity, Nuremberg Principles, int'l law defenses. 3/26/87: Trial ct denied state's request for interlocutory appeal. 12/24/87: VT Sup Ct dism'd state's interlocutory appeal. 1/88: state dism'd all charges.

William Nelson

  Nuclear Weapons Protest
PL-429/25.11. Massachusetts v. "Tent City" (Cambridge Dist Ct)

For several yrs Cambridge residents, Simplex Steering Comm opposed MA Institute of Technology (MIT) plans to build office, hotel, condo project. 10/87: Comm festival, sleep-over at site w/ MIT acceptance. Several homeless stayed, forming "Tent City" to focus attention on lack of affordable housing, MIT failure to develop housing. 11/23/87: MIT police evicted "Tent City" residents; 9 arrested while packing w/

- 25.12 -
assistance from students, community activists: trespass, disorderly conduct.

• 1/13-15/88: At trial, after DA rested, Defs moved for directed verdict of acquittal of 4; Gershengorn, J: granted. 5 Defs then argued: entitled to reasonable time to pack belongings, leave. Expert witnesses testified, including 3 MIT officials subpoenaed over MIT objections. During Defs' case remaining charges dism'd at J's suggestion; Defs agreed to 16 hrs community service; MIT agreed not to pursue disciplinary charges against student Defs. MIT proceeded w/ building project.

Kurt Pressman; Lee Goldstein, 678 Massachusetts Ave, Cambridge, MA 02139; Robert Johnson

  Homeless
PL-304/25.12. California v. Allen (Concord 33)

(Mt Diablo Muni Ct #106920-2; Contra Costa Cty Super Ct #C88-01168)

9/28, 10/5, 12/23/87: Peaceful protests of U.S. arms shipments to Central America where RR tracks cross Port Chicago Highway connecting inland, tidal portions of Concord Naval Weapons Station. Police arrested 33: trespassing (CA Pen C 602(n)), obstruction of thoroughfare/public place (Pen C 647(c)), unauthorized entry on RR property, interference w/ operation of trains (Pen C 369(i)). Attys agreed 15 Defs to represent all 33 in trial, all 33 bound by verdict. 2/5/88: DA moved in limine for order precluding defenses of necessity, int'l law, Nuremberg Principles; Defs opposed on constitutional ground of precluding Defs from offering certain defenses at trial before any evidence presented by Gov't.

• 2/26/88: Cunningham, Muni J: granted DA's motion, also precluded Defs using statutory defense of prevention of crime/defense of others (CA Pen C 692). 3/22/88: Defs filed petition in Super Ct seeking peremptory writ of mandate/prohibition compelling Muni Ct to vacate order granting DA's motion in limine. 5/7/88: Arnason, Super Ct J, issued brief written order: rejection of Defs' defenses too "broad and all-encompassing." 7/88: in jury trial, after extensive argument, testimony before J, J denied DA's motion in limine; J permitted Dr Charles Clemens' expert testimony on role of Naval Station in shipment of war materials; barred testimony on right to resist under int'l law; allowed Defs to discuss motive in blocking Navy munitions trains. 7/22/88: Jury hung (9-3 for conviction). 9/88: J dism'd charges: legal status of property on which arrests occurred (tracks) unclear.

H Stanley Dewey, 3150 Hilltop Mall Rd #16, Richmond, CA 94806; Sylvia A Keita, 2161 Shattuck Ave, 94701; Margaret J Mossman, 1607 A Grant St, 94703; both Berkeley, CA; Mary W Izett; John Burroughs; Lowell Richards, 565 Ygnacio Valley Rd, Walnut Creek, CA 94596

  Central America
PL-329/25.12. Illinois v. Fish (Skokie Cir Ct)

8/87: 26 Pledge of Resistance members protested at Arlington Heights Army Reserve Training Center; arrested: trespassing.

• 5/11/88: Madden, J: allowed necessity defense. 5/12/88: J sustained

- 25.13 -
state's objection to disregard testimony not directly related to alleged criminal act. 5/17/88: Jury acquitted Defs.

  Central America
PL-341/25.13. California v. Acton (S Coast Jud Dist, Santa Barbara Cty, #282899)

11/87: Students in anti-CIA protest at U of CA-Santa Barbara opposed teaching appointment of CIA officer as danger to U researchers abroad, violation of U Reg #5 on academic freedom. Police arrested 35: trespass, resisting arrest.

• 4/88: Ochoa, J: allowed necessity defense; granted Gov't motion in limine in part; disallowed expert testimony of former CIA agents. Jury voted 9-3 to acquit of trespass, 7-5 to convict of resisting; trespass charge dism'd; 6 Defs pleaded nolo to resisting.

Richard A Frishman, 206 Sacramento St, Nevada City, CA

  Anti-CIA Protest
PL-328/25.13. Illinois v. Kathleen Desaultels (Cook Cty Ct 1988)

3/18/88: Nun, 61 others, protested against troop deployment in Honduras; arrested: disorderly conduct.

• 48 tried, 2 guilty; sentenced: 1 day jail, 6 mths ct supervision. 5/23/88: 12 acquitted; 2 convicted; sentenced: 1, 6 mths ct supervision.

Kathleen Desaultels, pro se

  Honduras
PL-381/25.13. Arizona v. George Pettit (Tucson City Ct)

7/14/88: 11 Defs occupied vacant Fed'l Housing Admr housing unit, arrested: trespass.

• Knop, Magis, allowed justification defense (AZ Revised Stats §§13-401, 402), allowed expert testimony on: 1987 McKinney Act (42 USC §11301) mandating U.S. to make unused Gov't housing available to homeless, conditions of homeless, need for more Gov't housing assistance. 11/18/88: Magis: Defs not guilty, assailed U.S. Housing & Urban Development Dept for failure to address homelessness.

Susan Ferrell

  Homeless
PL-347/25.13. Arizona v. Jack Cohen-Joppa (Tucson City Ct 1988)

3/26/88: Base Commander, Davis-Monthan AFB approved displays at annual air show of literature by vets' lobbying org, POW/MIA group seeking help on suit against U.S.; Base authorities detained Def for "continuing to engage in a political demonstration": handing out leaflets critical of U.S. policy in Honduras; turned over to city police: trespass.

• 7/20/88: At bench trial, Def introduced other literature displayed, cross-examined Base atty on definition of "political demonstration." Goldman, Magis, requested written closing arguments. 8/8/88: Magis granted DA's motion to dismiss "in interests of justice."

Jack Cohen-Joppa, Box 43383, Tucson, AZ 85733, pro se

  Anti-War Leafleting
- 25.14 -
PL-382/25.14. New York v. William Brisotti (Nassau Cty Dist Ct, 1st Dist, Hempstead Index Nos 16554-16558, 1988)

7/22/88: Defs protested U.S. violation of ICJ decision in (PL-43/5.2) by kneeling in prayer inside, outside Long Island Marine, Navy recruiting offices. Arrested: disorderly conduct.

• 4/29/89: Calabrese, Dist Ct J: denied Defs motion for expert testimony on int'l law, effects of U.S. violation; Defs not guilty: reasonable doubt whether conduct disorderly, Defs exercising 1st Amdt rights.

Robert Boehm, 500 5th Ave, NY, NY 10036

  Nicaragua
PL-426/25.14. Massachusetts v. Scott Schaeffer-Duffy (Peace Witness at GTE)

(Worcester Dist Ct 1989)

8/7/89: 5 Defs sought to give leaflets, photos of Soviet people to employees at GTE's Westboro, MA nuclear weapons facility; denied entry; prayed outside building; arrested: trespass. DA filed motion in limine to deny necessity defense.

• Philbin, J: denied motion. 11/1/89: At 6-member jury trial, expert witnesses testified on threat of MX, other first-strike weapons GTE builds, failure of legal means to abate threat, effectiveness of civil disobedience, religious teachings against nuclear weapons: Ted Conna, Physicians for Social Responsibility; Paul Walker, defense analyst; Prof Michael True, Catholic Peace Fellowship; Srs Mae Gagnon, Clare Carter. Defs told jury personal history of activism. J gave instructions on necessity; jury acquitted.

Scott Schaeffer-Duffy, Jennifer Hoffman, Tom Lewis, Ken Synon, Harriet Nestel, all pro se

  Nuclear Weapons Protest
PL-391/25.14. Washington v. Mike Harburg (Seattle Muni Ct)

11/89: Large group of Comm in Support of People of El Salvador (CISPES) supporters blocked Interstate Highway 5 protesting U.S. policy re El Salvador; many arrested: traffic violation. Defs pleaded guilty.

• 11/89: Kessler, J: permitted each Def to make statement at sentencing; sentenced several w/ prior records to $25, w/out records suspended $25 fine; Def Harburg gave speech on Govt's violation of int'l law, grounds for necessity defense, no one should have to pay fine since Gen'l Secord admitted felony, was not severely punished. Kessler, J: in view of Secord example, suspended all fines.

  El Salvador
PL-573/25.14. California v. Greg Getty (Contra Costa Cty Muni Ct No 109158-6, 1987)

12/23/87: While protesting weapons train bound for Nicaragua contras, El Salvador, at Concord Naval Weapons Station, police sprayed Def w/ tear gas, arrested Def, 7 others: obstruction of public officer in performance of duty (CA Pen C §148), obstruction of thoroughfare (CA Pen C §647c). At trial, Def raised necessity defense, Nuremburg

- 25.15 -
Principles ( PL-465/1.8). Def moved to dismiss: alleged duty of public official should not include aiding fed'l officials' illegal use of weapons against innocent civilians.

• 4/10/89: Cunningham, J: dism'd.

Greg Getty, pro se

  Nuclear Weapons Protest
PL-106/25.15. California v. Patrick "Hooty" Croy (San Francisco Super Ct #131832)

7/16/78: After scuffle in store in Yreka, CA, 27 heavily-armed police officers chased Native American Def, 4 relatives; officers fired hundreds of rounds, wounding Def, 2 others. Def fired once, killed police officer; Def surrendered, charges: 1st degree murder, conspiracy to commit murder, assaulting police officer w/ deadly weapon. Def tried in Placer Cty Ct. Jury convicted on all counts; sentence: death.

• 12/85: CA Sup Ct rev'd murder, assault convictions, ordered retrial, resentencing. Def filed motion in limine re admissibility of "cultural" evidence, motion granted. Retrial ordered in San Francisco Super Ct. Def introduced cultural evidence, expert witnesses on history of brutality to Indians in northern CA, contemporary racism, harassment of Indians. 5/1/90: Jury acquitted Def.

J Tony Serra, Diana Samuelson, 473 Jackson St, 94111; Jasper Monti, 629 Bryant St, 94107; both San Francisco, CA

See PL-106a/28.7, PL-106b/29.1

  Native American Rights
PL-274/25.15. New York v. Edward Eisenberg (Staten Island Nukeport)

(Staten Island Cir Ct); (NY App Term #7R005336 et seq, 1988)

7/14/87: 38 Defs protested construction of U.S. Navy homeport on Staten Island; arrested: trespass (reduced to violation); resisting arrest, possessing handcuffs (dropped). Defs filed extensive omnibus motion w/ supporting affidavits.

• 5/23-27/88: Richmond Cty Crim Ct, McBrien, J: allowed expert witnesses on necessity defense: physicist Michio Kaku; Admiral Gene LaRocque; John Seeley, expert on evacuation plans; disallowed other experts; Several Defs recited Nuremberg Principles. 7/8/88: J acquitted 30 Defs; 8 Defs pleaded guilty; sentenced: 6 Defs-200 hrs community service (unparalleled for nonviolent action); 2 Defs-25 hrs community service. Ct allowed Defs to perform community service at peace/social justice org. J granted motion for stay pending appeal. Def planned appeal on: Illegal sentencing procedure, failure to allow Defs to testify they believed actions legal, failure to consider int'l law, issue of intent. 5/89: Ct informed Defs clerk lost trial notes. Appeal suspended.

Ellen Yaroshefsky, 72 Spring St, NY, NY 10012; Robert Boehm, 500 5th Ave, NY, NY 10036; Mark Gombiner, Peter Henia, Rose Candeloro, John Upton, Michael Wiseman, NLG

See PL-111/43.5; PL-150/48.3; PL-270/48.3; PL-271/48.4; PL-272/48.4; PL-273/48.4

  Nuclear Homeporting
- 25.16 -
PL-400/25.16. West Valley City v. Diana Hirshi (Salt Lake Cty, UT Cir Ct, W Valley Dept #891003031-3 MC)

1983-89: Peace activists held monthly vigil outside Hercules plant, manufacturer of Trident II missile engines. 10/20/89: Hundreds in peaceful vigil, 3 entered Hercules property, arrested: criminal trespass (W Valley City Ordinances §76-6-206).

• 1/26/90: Thorne, J, allowed: voir dire on Nuremberg principles, nuclear weapons policy, int'l law; allowed expert testimony: on importance of 1st Amdt exercise to U.S. history; based on survey of intent of Defs in similar cases re: intent of Defs to enforce Nuremberg Principles, not violate domestic law; on illegality of Trident II missiles as first strike weapons; allowed Defs to testify re: intent; gave jury instructions on: Nuremberg Principles, Utah Const Art I §1, 1st Amdt, int'l treaties, necessity. Jury acquitted.

Russell Minas, 1333 South 1100 East, 84105-2420; Bruce Plenk, 125 L St, 84103; Ronald Yengich, 175 East 400, 84111; all Salt Lake City, UT

  Nuclear Weapons Protest
PL-570/25.16. Arizona v. Jack Cohen-Joppa (Tucson City Ct #9024056)

3/17/90: Def passed out leaflets during air show at Davis Monthan AFB; arrested: criminal trespass. Def raised 1st Amdt, selective enforcement: person distributing leaflets on veterans' rights, etc., allowed to continue; Air Force stated these groups had applied for permission. 4/16/90: Air Force ordered Def to stay off base.

• 6/12/90: Wilson, Magis: Def not guilty. Def requested rescission of order barring him from base. 6/30/90: Air Force denied request.

Jack Cohen-Joppa, Box 43383, Tucson, AZ 85733, pro se

  Leafleting
PL-609/25.16. Florida v. 2 Live Crew (Broward Cty Ct, 1990)

6/90: Defs-rap musicians arrested at concert: misdemeanor obscenity. 10/10/90: Defs challenged jury selection method of drawing potential jurors only from voter registration lists: blacks, younger people under-represented on voter lists; obscenity charge requires jurors to determine community standard; process violated right to trial by jury of Defs' peers. Only 3 of 70 potential jurors were black.

• Johnson, J: denied Defs' challenge. Expert witnesses testified to artistic value of Defs' music; DA played Defs' tapes. 11/6/90: Jury acquitted.

Bruce Rogow, Nova U Law School

  Obscenity
PL-390/25.16. California v. Michael DiPaolo (San Diego)

10/21/89: 3 Defs-Skinheads beat Eric Vaerga-Pacific Islander; Defs mistook victim for Hispanic; arrested: felony assault, civil rights violations (racially-motivated beating).

• 6/17/90: Defs convicted: 3 yrs, $500 fine; 6 yrs; 1 yr.

  Hate Crimes
- 25.17 -
PL-897/25.17. Oregon v. Plowman (Multnomah Cty Ct 1990); 813 P2d 1114 (OR Ct of App 1991); 838 P2d 558 (OR Sup Ct 1992)

1990: Eyewitnesses heard Def, cohorts scream racial epithets as they severely beat 2 Mexican-American men. Def charged: intimidation: crime for 2 or more persons to intentionally, knowingly, recklessly cause physical injury to another based on Defs' perception of victim's race, color, religion, nat'l origin, sexual orientation (ORS 166. 165(1)(a)(A)). Def demurred: statute vague, burdens right to speech; pleaded not guilty.

• 1990: Ellis, J: overruled demurrer. After trial, jury convicted Def: assault, 1st degree intimidation. 6/19/91: OR CT of App, per curiam, aff'd. 8/27/92: OR Sup Ct aff'd, Graber, J: 1) intimidation statute not unconstitutionally vague under OR Const Art I §§20, 21, 14th Amdt due process; crime defined in sufficiently clear, explicit terms to apprise Defs of prohibited conduct; Defs' perception need not be accurate to have committed 1st degree intimidation; 2) statute does not unconstitutionally restrain Def's free expression of opinion, speech under OR Const Art I §8, 1st Amdt; persons can commit crime w/out speech.

Robert M Atkinson-Asst Atty Gen'l, Charles S Crookham-Atty Gen'l, Virginia L Linder-Solicitor Gen'l, Salem, OR; amicus Rex Armstrong, Bogle & Gates, ACLU Foundation-OR, Portland, OR

  Hate Crimes
PL-600/25.17. New York v. John Gray 571 NYS2d 851 (NY Crim Ct 1991)

10/22/90: 6 Defs-Transportation Alternatives members blocked outer lane traffic on Queensboro Bridge during peaceful protest of city closing of bike lane, dangers of auto air pollution; arrested: disorderly conduct.

• 2/5/91: Ct trial, Safer-Espinoza, J: allowed Defs expert witnesses on transportation, pollution, permitted necessity defense (NY Pen Law 35.05(2)). 3/14/91: J issued 42-page written opinion citing numerous unreported acquittals when necessity defense allowed; alluded to Defs' nonviolent actions, need for public education on issues; Defs made prima facie case supporting necessity defense: reasonable belief, choice of evils, imminence of harm, no legal alternative, causal relationship; burden shifted to prosecution to disprove Def's necessity defense beyond reasonable doubt; prosecution failed to do so; acquitted.

Ronald B McGuire, 101 Park Ave, NY, NY 10178

  Environmental Action
PL-579/25.17. San Francisco v. Gulf War Protestors (San Francisco Muni Ct 1991)

1/15-25/91: Massive protests against Gulf War; 2,000 arrested: obstructing street, sidewalk, 22 MPC; 500 arrested on fed'l charges: later dropped. 900 Defs tried separately.

• At trials, Defs raised defenses: 1) not "willful obstruction" because no malice; 2) Defs' actions protected by 1st Amdt, which requires strict reading of stat; 3) obstruction not substantial. 3/21/91: Defs filed

- 25.18 -
motion seeking recusal of volunteer prosecutors: bias, conflicts of interest, political motivations; motion denied. Bouliane, J: acquitted, dism'd charges against all but 31 Defs: no proof person, vehicle substantially obstructed by Defs' actions.

NLG, 558 Capp St, San Francisco, CA 94110

  Gulf War Protest
PL-567/25.18. Washington v. Steven Hill (Bellingham Muni Ct 1991)

1/14,17/91: Protestors blocked streets in downtown Seattle to protest Congressional approval for use of force in Persian Gulf; 110 arrested, including 4 pro se Defs: misdemeanor disorderly conduct. 1 Def filed motion for dismissal: lack of evidence.

• Clark, J: granted Defs' motion for dismissal; denied other 3 Defs' expert witnesses; allowed them to present evidence on necessity, int'l law. 3/6/91: Defs argued U.S. violated int'l law (Nuremberg Principles, Geneva Conventions) by: planning, preparing for war; withdrawing from ICJ in 1985; bombing civilian targets in Iraq. Def-Hill answered all DA questions: "Like Pres Reagan said when he was questioned about Iran-Contra, `I just don't remember.' " Jury hung (4-2 for acquittal); charges dropped.

Steven Hill, pro se, 410-11th Ave E, #1, Seattle, WA 98102

  Gulf War Protest
PL-845/25.18. North Carolina v. Emmett Roe, Imperial Foods (Cty Ct 1991); ABA Journal (Jan 1993)

1980-89: 1,800 workers died throughout NC due to workplace accidents; NC maintains own occupational safety programs, subject to approval by Occupational Safety & Health Admr (OSHA); 22 experienced safety inspectors to monitor 180,000 workplaces. 9/3/91: Hamlet, NC, 25 people killed at Imperial Foods poultry plant explosion due to locked, blocked fire escapes; plant had no safety/fire inspection in 11 yrs. Coalitions formed to commemorate, change, fight for workplace reform after Imperial fire. State arrested Def-owner of Imperial Foods: involuntary manslaughter.

• 9/92: Def agreed to plead guilty to 25 counts of involuntary manslaughter, accepted 20 yr prison term. NC fined Def's co $800,000 for Labor Code violations, forcing co into bankruptcy; maneuver forestalled 102 civil claims from injured, survivors, families of injured, dead. 11/92: Pls, Def's insurance cos agreed to $16 million settlement.

Woodrow Gunter II, Pl's atty, NC; Mark Schultz, Exec Director, NCOSH, Hamlet, NC; Justice Speaks, PO Box 1339, Rocky Mount, NC 27802

  Occupational Safety
PL-847/25.18. California v. Scott Halem (Berkeley Muni Ct #135842, 1991); (Ct of App #A060750, 1992)

7/91: Def, AIDS counselor, member of Needle Exchange Emergency Distribution (NEED), provided intravenous drug users w/ clean needles to prevent spread of AIDS virus. Def arrested: illegal distribution of hypodermic needles. Def argued necessity defense:

- 25.19 -
dispensing clean needles necessary to protect people from spread of AIDS virus w/ shared dirty needles; lack of drug programs, spread of AIDS infection among drug users poses "immediate" danger.

• 9/10/91: Jury deadlocked; deliberation focused on whether AIDS is "immediate" threat, whether adequate alternatives available. Brosnahan, J: mistrial. 4/93: On retrial, Greenberg, J: lower ct had no jurisdiction to accept state's writ to exclude necessity defense; Def acquitted.

William Simpich, 1736 Franklin, 10th Fl, Oakland, CA 94612

  AIDS
- 26.1 -
b. CASES WON ON APPEAL

PL-52/26.1. Chicago v. Jack Mayer 308 NE2d 601 (IL Sup Ct 1974)

10/11/69: Def-medical student, first aid asst in antiwar demonstration; prevented 6 police officers from moving injured man w/out stretcher; arrested: disorderly conduct, interfering w/ police officer in performance of duties (muni ordinances).

• Ouska, Cir J: denied necessity defense, jury instruction on necessity. Jury convicted; sentence: $500 fine. 1/23/74: IL Sup Ct rev'd, Davis, J: Def entitled to necessity defense, jury instruction on necessity: had specialized knowledge that greater injury to injured man was imminent; necessity available in ordinance violation as well as penal violation.

Henry F Field, 2344 Lincoln Park W, Chicago, IL

  Vietnam War
PL-320/26.1. In re Joye Lundgren 236 CA Rptr 307 (4th DCA 1987)

12/83: Woman placed Christmas ornament on tree located in area appearing to be public sidewalk on periphery of Gen'l Dynamics Convair property during protest against nuclear weapons manufacture; arrested: misdemeanor trespass (CA Pen C 602 (n)).

• 1984: Def convicted; sentence: 3 yrs probation. Super Ct App Dept aff'd. CA Sup Ct granted Def's habeas petition: area was open to public; ordered full h'g by DCA. 2/26/87: DCA rev'd (2-1): Def's "crime" was content of message, not interference w/ property owner's legitimate interests; Convair could have posted signs near tree, didn't.

Dan Bacal, Michael Kaye, ACLU

  Nuclear Weapons Protest
PL-206/26.1. Nevada v. Martin Sheen (Beatty Township Justice Ct, Nye Cty)

1/87: Def-actor appeared on "Good Morning America", said he would demonstrate at NV Test Site on 1/27/87, commit civil disobedience. While in prayer near test site before civil disobedience committed, Def arrested on warrant: "threatening to commit an offense against a person or property."

• J of Peace ordered Def to pay $5000 "peace bond" or face 6 mths jail; Beko, DJ: aff'd. 12/29/88: NV Sup Ct rev'd unanimously: arrest, bond wrongful; Young, ChJ: civil disobedience not crime in NV.

Al Marquis

See PL-202/28.9; PL-203/28.11; PL-204/25.8; PL-205/25.8

  Nuclear Weapons Protest
PL-747/26.1. Oregon v. Santiago Ventura Morales (Marion Cty, OR Cir Ct No 86-630, 1986)

7/13/86: Def-Mixtec Indian, migrant farmworker speaking little/no English, arrested for fatal stabbing of Ramiro López Fidel, fellow migrant worker. Def's knife had no traces of blood.

- 26.2 -

• 10/86: Def convicted of murder; J polled jury — each aff'd verdict. 1987: Ct of App aff'd, Sup Ct denied review. 1988: Independent investigation found evidence to exculpate Def. 4/11/91: Marion Cty Cir Ct, Duane Ertsgaard, J: granted Def's post-conviction prayer: Def denied adequate defense. Conviction overturned.

Paul DeMuniz, Salem OR (now OR App Ct J)

  Migrant Farmworkers
PL-770/26.2. Kentucky v. Jeffrey Wasson 785 SW2d 67 (KY App 1990); 842 SW2d 487 (KY Sup Ct 1992)

12/85: Lexington police arrested Def: soliciting undercover officer to engage in "deviate sexual intercourse" (KRS 506.030(2)(d)); solicitation of consensual acts of sodomy, not for money, both adults. Def challenged constitutionality of criminalizing same sex intercourse (KRS 510.100).

• 1986: Fayette DJ dism'd charge: KRS 510.100 violates Def's privacy rights under KY Const §§1, 2. 1989: Tackett, Fayette CJ, aff'd: KRS 510.100 violates Def's equal protection rights under KY Const §§1, 2. 9/24/92: KY Sup Ct aff'd, Leibson, J: struck down sodomy law: 1) KRS 510.100 violates KY Const privacy rights, which are broader than U.S. Const; 2) KRS 510.100 violates KY Const equal protection: singles out homosexuals for different treatment for engaging in same activity heterosexuals are free to perform; 3) no rational basis for punishing deviate sexual intercourse based on sexual preference; sexual preference, not act, determines criminality. 1/21/93: reh'g denied.

Ernesto Scorsone, 167 W Main St #804, 40507; Pam Goldman, PO Box 102, 40501; Dean W Bucalos, 201 W Short St, 40507; all Lexington, KY; amici: Kenneth C Plotnik, 607 W Ormsby Ave, Louisville, KY 40203; Allen W Holbrook, 100 St Ann St, Owensboro, KY 42301; Stanley M Spracker, 1616 L St NW; David W Ogden, 21 DuPont Circle NW; both Washington, DC 20036

  Gay Rights
- 27.1 -
c. CASES WITH SUPREME COURT OPINIONS

PL-777/27.1. William Wayne Thompson v. Oklahoma 724 P2d 780 (OK Ct of Cr App 1986); 108 SCt 2687 (1988)

15 year old Pet actively participated in brutal murder. DA filed petition to have Pet tried as adult (10 OK Stat §§1101(b), 1112(b); 21 OK Stat §§701.10-701.15).

• Grady Cty J granted. Jury convicted Pet: 1st degree murder; sentence: death. 1986: OK Ct of Crim App, Brett, J, aff'd. 6/29/88: USSC vacated, remanded (5-3), Stevens, J: 8th, 14th Amdts prohibit execution of Pet convicted of 1st degree murder for offense committed when 15 yrs old.

Harry F Tepker, Jr, Norman, OK; amici: Randy Hertz, Martin Guggenheim, Child Welfare League of America; Robert H Kapp, Int'l Human Rights Law Group; Eugene C Thomas, Andrew J Shookkhoff, Steven H Goldblatt, American Bar Assn; Joseph T McLaughlin, Jeremy G Epstein, Henry Weisburg, American Society for Adolescent Psychiatry; Paul L Hoffman, Joan W Howarth, Joan E Hartman, Mary E McClymont, John E Osborn, Amnesty Int'l; Anna Mamalakis Pappas, Defense for Children Int'l-USA; James E Coleman, Jr, Michael A Mello, Nat'l Legal Aid & Defender Assn; Theodore Gottfried, Office of IL Appellate Defender

  Juvenile Death Penalty
PL-383/27.1. Kevin Stanford v. Kentucky; Missouri v. Heath Wilkins 734 SW2d 781 (KY Sup Ct 1987); 736 SW2d 409 (MO Sup Ct 1987); 109 SCt 2969 (1989)

1987: Defs-minors sentenced to death under laws of different states. Separate state Sup Ct decisions aff'd.

• 6/26/89: USSC aff'd (5-4), Scalia, J: 8th Amdt does not forbid execution of juveniles. Brennan, J, diss at 2982: execution of minors violates standard of decency; cited Art 6(5) (6 ILM 368, PL-97/2.2), American Convention on Human Rights Art 4(5) (9 ILM 673), Geneva Convention Art 68 (6 UST 3516), UNESCO Res 1984/50, all explicitly prohibiting execution of juveniles; Amnesty Int'l recording of only 8 executions of criminal minors worldwide since 1979.

Frank W Heft Jr, Louisville, KY

  Death Penalty
PL-680/27.1. Illinois v. Manuel Salazar 535 NE2d 766 (IL Sup Ct 1988); cert den 110 SCt 3288 (1990); reh'g den 111 SCt 15 (1990)

9/12/84: Def-Mexican nat'l fled from 2 uniformed police officers in marked car. Officer left car, chased Def; scuffle; officer shot/killed. Def fled to Mexico, claimed officer beat Def after surrender, Def took officer's gun, shot him in self-defense. 4/10/85: Def charged w/murdering police officer in course of duty; extradited to U.S. 8/29/85: Def's change of venue motion granted.

• 1986: McLean Cty jury found Def guilty; sentence: death. Def appealed: denied equal protection when transferred to McLean Cty: exclusion of Hispanics, blacks from jury. 11/21/88: IL Sup Ct aff'd,

- 27.2 -
Cunningham, J: jury selection appropriate, no abuse of discretion. 6/28/90: USSC denied cert, Marshall, J, diss: death penalty in all circumstances is cruel, unusual punishment prohibited by 8th, 14th Amdts; would grant cert, vacate death sentence. 8/30/90: USSC denied petition for reh'g.

Michael D Ettinger, Barry S Pechter, Oak Lawn, IL; Michael Metnick, IL Attys for Criminal Justice, 107 W Cook St, Springfield, IL 62704

  Jury Selection
PL-879/27.2. Ford v. Georgia (Coweta Cty Cir Ct 1984); 335 SE2d 567 (GA Sup Ct 1985); 107 SCt 1268 (1987); 362 SE2d 764 (GA Sup Ct 1987); rev'd 111 SCt 850 (1991)

1984: Black Def arrested: kidnapping, rape, murder. Def filed pretrial motion to restrict racial use of peremptory challenge: DA had history of excluding blacks from juries where issues involved whites.

• 10/25/84: Lee, J: denied motion. During voir dire, DA used peremptory challenges to remove 9 black jurors, leaving 1. Jury convicted Def. 2/19/85: Lee, J: denied motion for new trial. 10/29/85: GA Sup Ct, Smith, J, aff'd. 2/23/87: USSC rev'd, remanded: 476 US 79 (1986), applies retroactively. 2/19/87: GA Sup Ct: Def's equal protection claim procedurally barred. 2/19/91: USSC rev'd (9-0), Souter, J: 1) although Def's pretrial motion did not mention equal protection, new trial motion cited 6th Amdt, pretrial motion's reference to pattern of excluding black jurors over long period constituted assertion of equal protection; 2) rule (requiring objection to jury between selection, admr of oaths) not adequate, independent state procedural ground barring fed'l judicial review of Def's claim.

Charles J Ogletree Jr

  Jury Selection
PL-753/27.2. Arizona v. Fulminante 778 P2d 602 (AZ Sup Ct 1988); aff'd 111 SCt 1246 (1991)

1982: Def murdered 11 year-old stepdaughter, fled AZ, convicted of unrelated fed'l crime, incarcerated in NY, befriended FBI informant, admitted killing stepdaughter; Def released from prison, confessed to informant's wife. 9/4/84: Def indicted in AZ: 1st degree murder. Def moved to suppress confession as coerced, violated 5th, 14th Amdts.

• 12/19/85: Gerst, J: denied Def's motion; Def convicted, sentence: death. 1988: AZ Sup Ct rev'd, remanded: confession was coerced, precedent precluded use of harmless-error analysis; ordered new trial w/out use of confession. 3/26/91: USSC aff'd (JJ divided on 7 issues), White, J: 1) Def's confession was coerced; motivated by fear of physical violence w/out protection from informant; 2) State failed to meet beyond reasonable doubt burden that admission of Def's confession was harmless; unlikely physical, circumstantial evidence alone sufficient to convict; per Rehnquist, ChJ: 3) harmless error rule applied to admission of involuntary confessions; involuntary

- 27.3 -
confession may be assessed in context of other evidence presented to determine whether admission harmless beyond reasonable doubt.

Stephen R Collins, Phoenix, AZ

  Death Penalty
PL-856/27.3. Powers v. Ohio 536 NE2d 1172 (OH Ct of App 1989); rev'd 111 SCt 1364 (1991)

1988: White Def on trial: murder, aggravated murder w/ firearms specifications. During voir dire, Def objected to DA's use of peremptory challenges to remove 7 black jurors.

• 1988: Trial J rejected Def's request to require DA to explain reasons for excluding black jurors. Jury convicted Def; sentence: 53 yrs-life. 1989: OH Ct of App aff'd. 1989: OH Sup Ct dism'd. 4/1/91: USSC rev'd (7-2), Kennedy, J: Under 14th Amdt equal protection: 1) criminal Def may object to race-based peremptory challenges whether or not Def and excluded jurors are of same race; 2) affords ordinary citizens valuable opportunity to participate in democratic process; 3) purpose of jury system to impress on Def, community that verdict is given in accordance w/ law by persons who are fair, which would not occur if jury chosen by unlawful means.

Robert L Lane, Columbus, OH

  Jury Selection
PL-890/27.3. Bryan Lankford v. Idaho (Idaho Cty Ct 1984); 747 P2d 710 (ID Sup Ct 1987); 108 SCt 2815 (1988); 775 P2d 593 (ID Sup Ct 1989); rev'd 111 SCt 1723 (1991)

12/1/83: Def indicted: 2 counts 1st degree murder. 9/84: After trial, jury convicted. DA notified ct: would not seek death penalty. 10/12/84: At sentencing h'g, Reinhardt, J: DA's recommendation inadequate; sentenced: death (ID C §19-2515 (1987)).

• 7/29/87: ID Sup Ct, Bakes, J, aff'd. 6/13/88: USSC vacated, remanded. 4/4/89: ID Sup Ct, Bakes, J, aff'd. 5/20/91: USSC rev'd, remanded (5-4), Stevens, J: sentencing process violated 14th Amdt due process; at sentencing h'g, Def did not have adequate notice judge might sentence him to death: presentencing order comparable to pretrial order limiting issues to be tried. Scalia, J (Rehnquist, White, Souter, JJ) diss.

Joan Marie Fisher, Genessee, ID

  Death Penalty
PL-886/27.3. California v. Hodari D (Alameda Cty Super Ct 1989); 265 CA Rptr 79 (CA Ct of App 1989); rev'd 111 SCt 1547 (1991)

4/88: Youths fled at approach of unmarked police car; police, wearing police jackets, left car to chase; officer almost upon Def, Def tossed small amount of cocaine; officer tackled, handcuffed, arrested Def: cocaine possession.

• 1989: In juvenile proceeding, Sweeney, J: denied Def's motion to suppress $130 cash, pager, cocaine; convicted Def. 12/15/89: Ct of App rev'd, Rancanelli, J: Def seized when he saw officer running toward him; seizure unreasonable: 4th Amdt; DA conceded officer lacked reasonable suspicion required to justify stopping Def; evidence

- 27.4 -
re cocaine had to be suppressed as fruit of illegal seizure. 1990: CA Sup Ct denied review. 4/23/91: USSC rev'd (7-2), Scalia, J: officer's show of authority in pursuing Def not seizure w/out physical contact, evidence Def yielded to show of authority in chase; Def abandoned cocaine while running: not fruit of seizure. Stevens, J (Marshall, J) diss: citizen's response should not govern constitutionality of police conduct; had officer succeeded in tackling Def before he dropped cocaine, it unquestionably would have been excluded as fruit of unlawful seizure; consequence of Ct decision: seizure occurs, not when reasonable citizen believes he is no longer free to go, but only after officer exercises control over citizen.

James L Lozenski, Berkeley, CA

  Seizure
PL-782/27.4. Hernández v. New York (Kings Cty Sup Ct 1987); 528 NYS2d 625 (App Div 1988); 552 NE2d 621 (NY Ct App 1990); aff'd 111 SCt 1859 (1991)

1986: Hispanic Def arrested: attempted murder, criminal possession of weapon. During voir dire, Def objected to Pl's peremptory challenges of 4 Latino jurors.

• 1/30/87: Beldock, J: rejected Def's claim under 476 US 79 (1986); convicted. 5/16/88: App Div aff'd. 1990: NY Ct of App, Bellacosa, J, aff'd. 5/28/91: USSC aff'd (4-2-3), Kennedy, J: 1) DA offered race-neutral explanation for striking 2 Spanish-speaking Latino jurors: doubted ability of bilingual jurors to accept official translation of Spanish testimony; 2) trial ct did not commit clear error in concluding DA did not discriminate on basis of race; once DA offered race-neutral explanation, trial ct finding represents finding of fact accorded great deference on appeal. Stevens, J (Marshall, Blackmun, JJ) diss: Neither other equal protection holdings have imposed on Def added requirement to generate evidence of DA's subjective intent to discriminate; DA's explanation insufficient, inevitably results in disproportionate disqualification of Spanish-speaking jurors; less drastic means available (instructing jury); if DA's concerns valid/substantial, would have supported challenge for cause.

Kenneth Kimerling, NY, NY

  Jury Selection
PL-877/27.4. California v. Acevedo (Orange Cty Super Ct 1989); 216 CalApp3d 586 (4th DCA 1990); rev'd 111 SCt 1982 (1991)

10/30/87: Police saw Def w/ brown paper bag leave apartment known to contain marijuana. Def placed bag in car trunk, drove away. Police stopped car, opened trunk/bag, found marijuana, arrested Def: possession of marijuana for sale (CA Health & Safety C §11359). Def pleaded guilty.

• 1989: Brown, J: denied Def's motion to suppress; convicted Def. 1/3/90: DCA rev'd: marijuana should have been suppressed; police could seize, could not open closed container w/out warrant. 5/30/91: USSC rev'd (5-1-3), Blackmun, J: police may search container in car w/out warrant w/ probable cause to believe container holds contraband

- 27.5 -
even w/out probable cause to search car. Stevens, J (Marshall, White, JJ) diss: Ct does not attempt to identify any exigent circumstances to justify its refusal to apply general rule against warrantless searches; one's privacy interest in one's luggage can certainly not be diminished by removing it from public thoroughfare, placing it in privately-owned vehicle; if police have probable cause, they can seize/detain luggage, obtain search warrant.

Fred W Anderson, Santa Ana, CA

  Search and Seizure
PL-765/27.5. Florida v. Bostick 510 So2d 321 (FL Ct of App 1987); 554 So2d 1153 (FL Sup Ct 1989); rev'd 111 SCt 2382 (1991)

198_: 2 Broward Cty Sheriff officers boarded Def's bus; questioned Def w/out stating basis for suspicion, requested consent to search Def's luggage for drugs, advised Def of right to refuse. Def consented; officers found cocaine; arrested Def: drug trafficking.

• 1987: Seay, J: denied Def's motion to suppress cocaine because seizure violated 4th Amdt; Def convicted. 1987: FL Ct of App aff'd, but certified question to FL Sup Ct. 1989: FL Sup Ct: sheriff's practice of working buses unconstitutional; reasonable passenger would not have felt free to leave bus to avoid questioning by police. 6/20/91: USSC rev'd (6-3), O'Connor, J: random bus searches conducted pursuant to passenger's consent not per se unconstitutional; test is whether, taking into account all circumstances surrounding encounter, reasonable passenger would feel free to decline officer's requests, terminate encounter.

Donald B Ayer, Washington, DC

  Search and Seizure
PL-768/27.5. Ronald Harmelin v. Michigan 440 NW2d 75 (MI Ct of App 1989); aff'd 111 SCt 2680 (1991)

Pet arrested: possessing 672 grams of cocaine (1980 MI Comp Laws §333.7403(2)(a)(i), §§791.233b(1)(b), 791.234(4), §333.7401(2)(a)(i)); convicted; sentence: mandatory life w/out parole. Def appealed.

• MI Ct of App aff'd. 6/27/91: USSC aff'd (5-4), Scalia, J: imposition of mandatory sentence of life in prison w/out possibility of parole or consideration of mitigating factors (Pet had no prior felony convictions) did not constitute cruel, unusual punishment; severe, mandatory penalties may be cruel, but not unusual; individualized capital-sentencing doctrine may not be extended outside capital context because of qualitative differences between death and all other penalties. White, J (Blackmun, Stevens, JJ) diss: undeniable USSC cases have construed 8th Amdt to embody proportionality component ... decisions requiring proportionality do so because of 8th Amdt's prohibition against cruel, unusual punishments; Court's capital punishment cases requiring proportionality reject Scalia's notion that 8th Amdt bars only cruel, unusual modes, methods of punishment. Marshall, J, Stevens, J (Blackmun, J) diss.

Carla J Johnson

  Cruel, Unusual Punishment
- 27.6 -
PL-874/27.6. Payne v. Tennessee (Shelby Crim Ct 1988); 791 SW2d 10 (TN Sup Ct 1990); aff'd 111 SCt 2597 (1991)

1991: Jury convicted Def of 1st degree murder of woman, 2 yr-old daughter; 1st degree assault w/ intent to murder 3 yr-old son. At sentencing Def called parents, girlfriend, clinical psychologist to testify to mitigating circumstances in Def's background. State called victim's grandmother to testify son missed mother/sister; commented on crimes' impact on victims' family. Jury sentenced Def to death.

• 4/16/90: TN Sup Ct aff'd sentence, Fones, J: grandmother's testimony, State's closing argument re crimes' impact on victims' family not violations of 8th Amdt. 6/27/91: USSC aff'd (6-3), Rehnquist, ChJ: 8th Amdt did not bar capital sentencing jury from considering victim impact evidence; stare decisis does not require ct to follow precedent when governing decisions unworkable/badly reasoned. Marshall, J (Blackmun, J) diss: victim impact evidence creates unacceptable risks of arbitrary sentencing; prejudicial effect outweighs probative value. Stevens, J (Blackmun, J) diss: victim impact evidence does not pass 8th Amdt scrutiny: aspects of victim's character irrelevant, not foreseeable to Def at time of crime; quantity/quality of victim impact evidence not defined until after crime, cannot be applied consistently.

J Brooke Lathram, Memphis, TN

  Death Penalty
PL-898/27.6. Randall White v. Illinois (Vermilion Cty Cir Ct 1989); 555 NE2d 1241 (IL Ct of App 1990); aff'd 112 SCt 736 (1992)

4/16/88: Babysitter awakened by child's screams, witnessed Def exiting 4 yr-old girl's bedroom. Child told babysitter Def engaged in sexual contact w/ her. Soon child repeated story to mother, police, nurse, doctor. Def indicted: aggravated sexual assault, residential burglary, unlawful restraint.

• 1989: At trial, Def objected to statements by babysitter, mother, police, nurse, doctor: hearsay, 6th Amdt confrontation. J overruled Def's objections: spontaneous declaration exception; exception for statements made in course of securing medical treatment (IL Rev Stat ch 38 para 115-13 (1989)). Child called as witness, did not testify. Jury convicted Def. 6/15/90: IL Ct of App, Steigmann, J, aff'd. IL Sup Ct denied review. 1/15/92: USSC aff'd (7-2), Rehnquist, ChJ: 1) Confrontation clause satisfied when testimony under spontaneous declaration, medical exam exceptions to hearsay rule has sufficient guarantees of reliability; statement offered in moment of excitement, w/out opportunity to reflect on consequences, may justifiably carry more weight than similar statement offered in relative calm of ctroom; statement made in course of medical exam, where declarant knows false statement may cause misdiagnosis, mistreatment, carries special guarantees of credibility; 2) requirement that hearsay testimony of child be permitted only on showing of necessity involved question of what in-ct procedures constitutionally required once child is testifying, does not apply to out-of-ct

- 27.7 -
statements admitted under hearsay exceptions. Thomas, J (Scalia, J) conc.

Arleen C Anderson, Chicago, IL; amicus Stephen L Nightingale, Washington, DC

  Child Abuse
PL-762/27.7. Dawson v. Delaware 581 A2d 1078 (DE Sup Ct 1990); 112 SCt 1093 (1992)

12/1/86: Pet-Aryan Brotherhood member escaped from DE correctional center, stole car, burglarized house, murdered woman, stole victim's car, money; arrested: 1st degree murder, other crimes.

• Super Ct jury convicted. At penalty h'g, DA read stipulation referring to Pet's association w/ Aryan Brotherhood; sentence: death. 1990: DE Sup Ct aff'd. 3/9/92: USSC vacated, remanded (8-1), Rehnquist, ChJ: 1) Pet's 1st, 14th Amdt rights violated; constitutional error to admit stipulation of Pet's membership in white racist prison gang where that evidence not relevant to any issue being decided at punishment phase; 2) on remand, DE Sup Ct to consider whether admission of Aryan Brotherhood evidence was harmless error. Pending.

Bernard J O'Donnell for Pet; Richard E Fairbanks, Jr for Resp; both Wilmington, DE

  Death Penalty
PL-885/27.7. Georgia v. Thoams McCollum (Dougherty Cty Super Ct 1991); aff'd 405 SE2d 688 (GA Sup Ct 1991); rev'd, remanded 112 SCt 2348 (1992)

8/10/90: White Defs indicted: assaulting 2 African-Americans. DA moved to prohibit Defs from using peremptory challenges to remove black jurors.

• 1991: Kelley, J: denied DA's motion. 7/12/91: GA Sup Ct aff'd: distinguished (111 SCt 2077 (1991), PL-780/32.11): civil litigants not criminal Defs. 6/18/92: USSC rev'd, remanded (6-1-2), Blackmun, J: 1) equal protection clause prohibited Defs from exercising peremptory challenges in racially discriminatory manner; excluding jurors due to group bias undermines foundation of justice system; 2) Def's exercise of peremptory challenges was state action; Def's conduct deemed fairly attributable to gov't; 3) State had 3rd party standing; it suffers concrete injury when fairness, integrity of judicial process undermined; 4) prohibition of discriminatory exercise of peremptory challenges does not violate Def's rights to fair trial, counsel, atty/client privilege, trial by impartial jury. O'Connor, Scalia, JJ, diss.

Harrison W Kohler, Atlanta, GA; amicus Michael R Dreeben, Washington, DC

  Jury Selection
PL-633/27.7. RAV v. St Paul, MN (St Paul Juvenile Ct); 464 NW2d 507 (MN Sup Ct 1991); rev'd, remanded 112 SCt 2538 (1992)

6/21/90: Def, other juveniles burned cross inside fenced yard of African-American family's home; arrested: bias-motivated disorderly

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conduct (St Paul, MN Legis C §292.02 (1990)) prohibiting display of symbol one has reason to know "arouses anger, alarm, resentment ... on basis of race, color, creed, religion, gender."

• 1990: Flinn, Ramsey Cty J, dism'd charge prior to trial: ordinance overbroad, content-based, violating 1st Amdt. 1/18/91: MN Sup Ct rev'd, Tomljanovich, J: ordinance not overbroad, fighting words unprotected by 1st Amdt; not content-based, but narrowly tailored to serve compelling gov't interest to protect community against bias-motivated threats to public safety/order. 6/22/92: USSC rev'd, remanded (5-3-1), Scalia, J: ordinance unconstitutional prohibition on subject matter of speech. White, J (Blackmun, O'Connor, Stevens, JJ) conc: ordinance overbroad extension to protected speech. Blackmun, J: no 1st Amdt values would be compromised by law "prohibit hoodlums from driving minorities out of their homes by burning crosses on their lawns. ... great harm in preventing the people ... from specifically punishing the race-based fighting words that so prejudice their community."

Tom Foley-Cty Atty, Steven C DeCoster-Asst Cty Atty; amici: Steven W Zachary, NAACP; all St Paul, MN; Jeffrey D Sineusky, Stephen M Freeman, Michael A Sandberg, NY, NY; Mark S Weitz, Timothy R Meyerson, Lawrence P Schaefer, Leonard, Street & Deinard for Anti-Defamation League of B'Nai B'rith; Robert J Alfton-City Atty, Mitchell Lewis Rothman-Deputy City Atty, all Minneapolis, MN

  Hate Crimes
PL-894/27.8. Wisconsin v. Mitchell (Kenosha Cty Cir Ct 1990); 473 NW2d 1 (WI Ct of App 1991); 485 NW2d 807 (WI Sup Ct 1992); rev'd 113 SCt 2194 (1993)

10/7/89: Def, other young black men beat white boy severely, stole shoes, arrested: aggravated battery.

• 1990: Jury convicted Def: intentionally selected victim due to race, increased maximum penalty from 2-7 yrs, WI Stat §939.645(1)(b). Breitenbach, J, sentenced Def: 4 yrs. 1991: WI Ct of App aff'd: rejected Def's claims that §939.645 violated 1st Amdt, void for vagueness; Def waived 14th Amdt claim. 1992: WI Sup Ct rev'd: §939.645(1)(b) violates 1st Amdt, punishes what legislature deems offensive thought; overbroad. 6/11/93: USSC rev'd (9-0), Rehnquist, ChJ: 1) §939.645 penalty enhancement provision did not violate Def's free speech rights; physical assault is not expressive conduct; Def's motive for committing crime, as opposed to Def's abstract beliefs, is factor judges consider in sentencing; statute aimed at unprotected conduct, not speech; 2) statute not overbroad; prospect of citizen suppressing bigoted beliefs for fear evidence of beliefs will be introduced against him at trial if he commits crime is too speculative; 1st Amdt does not prohibit evidentiary use of speech to establish elements of crime, prove motive, intent.

James Doyle, Madison, WI; amici for Pl: Anti-Defamation League, 1100 Connecticut Ave NW, Ste 1020, 20036; Cong Charles E Schumer; Michael R Dreeben; all Washington, DC; Lawyers Comm for Civil Rights Under Law; Lynn S Adelman, Milwaukee, WI for Def

  Hate Crimes
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PL-895/27.9. Dorsie Lee Johnson v. Texas (Scurry Cty Dist Ct 1987); aff'd 773 SW2d 322 (TX Ct of Crim App 1989); aff'd 113 SCt 2658 (1993)

3/86: Def-19 yr-old robbed convenience store, killed employee. 4/86: Def arrested: capital murder (TX Pen C §§19.02(a)(1), 19.03(a)(2) (1989)).

• 1987: After trial, jury convicted Def. During sentencing, Def's father, other witnesses testified to Def's violent tendencies; DA submitted 2 special issues to jury. Jury answered yes to both. Dulaney, J: sentenced Def: death (TX Pen C §37.071(e) (1981). 1989: TX Ct of Crim App aff'd. 6/24/93: USSC aff'd (5-4), Kennedy, J: jury instruction on future dangerousness based on probability of violence allowed adequate consideration of Def's youth; 8th Amdt requirements satisfied: mitigating evidence w/in effective reach of sentencer; no additional instruction required. O'Connor, J (Blackmun, Stevens, Souter, JJ) diss: death sentence cannot be upheld unless jurors able to consider fully Def's mitigating evidence; emotional, mental immaturity of young people may cause them to respond to events as adult would not; should vacate sentence, remand for resentencing: jurors could not give effect to this aspect of Def's youth.

Michael E Tigar, Austin, TX

  Death Penalty
- 28.1 -
d. CASES LOST

PL-9/28.1. Oregon v. Ahrens (Columbia Cty Dist Ct Nos 78-260 to 78-533)

Spring/79: 193 anti-nuclear protesters climbed fence at Trojan Nuclear Power Plant, occupied site 4 days; arrested: criminal trespass (ORS 156.620). Defs submitted memo seeking: additional peremptory challenges, choice of evils defense: activities protected by 1st Amdt.

• 6/79: Ct allowed all voir dire questions, excluded evidence re necessity defense, 1st Amdt; jury convicted Defs.

Michael E Rose, Doreen Nepom, Edward Jones, S Lynn Parkinson, Ronald A Fontana, Jane Van Dyke, John Bergland, James P Cunningham, Steven Gorham

  Nuclear Power
PL-280/28.1. Connecticut v. Demott (Plowshares #2)

(Groton Ct)

12/13/80: Def-former seminarian, Vietnam vet entered Gen'l Dynamics Electric Boat Shipyard during launch ceremony, rammed Trident sub w/ security van, denting rudder; arrested: criminal mischief, trespass.

• 1981: After pro se defense, jury convicted; sentence: 1 yr. Def served time.

  Nuclear Weapons Protest
PL-1/28.1. Pennsylvania v. Berrigan (Plowshares 8)

rev'd 472 A2d 1099 (PA Super Ct 1984); rev'd 501 A2d 226 (PA Sup Ct 1985); remanded en banc 535 A2d 91 (PA Super Ct 1987); all app den 557 A2d 341 (PA Sup Ct 1989); cert den 110 SCt 219 (1989)

9/9/81: 8 Defs hammered, poured blood on hydrogen bomb missile components being manufactured for use by U.S. Gov't at Gen'l Electric's King of Prussia plant; arrested: burglary, criminal conspiracy.

• Salus, J: refused to present instructions to jury on Defs' state of mind based on duty under int'l law; jury convicted; sentences: 5-10 yrs. Defs' appeal brief argued: 1) manufacture, deployment of hydrogen bomb, nuclear missiles violate custom, treaty provisions of int'l law, Nuremberg Principles, constitute crime of state; 2) when such crimes committed, int'l law of war imposes individual criminal responsibility on civilian manufacturers who carry out official policy, correlative duty to impede such manufacture where reasonable to do so. 2/17/84: Super Ct did not deal w/ int'l law, rev'd due to trial error: refusal to allow expert testimony on necessity defense. Spaeth, J, conc: "No peril even approaches ... the peril of nuclear war ... It extends ... to our survival as a species ... e are not entitled to hold, `as a matter of law,' ... that a jury could not find that our situation is as desperate as appellants offered to prove, and ... could not go on to decide that appellants' conduct, however unlikely of success, represented a reasonable response." 12/85: PA Sup Ct rev'd reversal, aff'd convictions; did not allow necessity defense, testimony by experts on nuclear danger; upheld trial ct (w/ 3 dissents) in excluding public from voir dire questioning of prospective jurors, in method of conducting voir

- 28.2 -
dire; remanded to Super Ct for disposition of issues raised but not yet considered. 12/3/87: Beck, Super Ct J: aff'd convictions, vacated sentences, remanded for resentencing before different J, questioned trial J's impartiality; held justification defenses not available to Defs; Tamilia, Super Ct J, diss: questioned J's impartiality at trial, sentencing. 1989: PA Sup Ct denied all appeals. 1989: USSC denied cert. 4/10/90: At resentencing, Buckingham, J: permitted Defs to raise justification defense, call expert witnesses: Ramsey Clark, Robert Jay Lifton, Richard Falk, Howard Zinn; expressed sympathy w/ Defs' views. DA made no recommendation; Gen'l Electric did not request reparations. Sentences: time served: 5 days-17 mths. 1981-89: Since Defs' action, peace activists participated in more than 36 "plowshares" actions in U.S., Europe, Australia.

Thomas Colas Carroll; Peter Goldberger, The Ben Franklin Ste 400, Chestnut St at 9th, 19107; both Philadelphia, PA; Charles A Glackin, Jenkintown, PA; Richard Falk, Princeton, NJ; Ramsey Clark, 36 E 12th St, NY, NY 10003; Michael C Shields, Norristown, PA

See PL-282/23.8; PL-230/23.5; PL-276/23.12; PL-159/23.11; PL-277/23.13; PL-250/23.15; PL-280/28.1; PL-281/28.3; PL-46/23.4; PL-11/28.15; PL-233/28.6

  Nuclear Weapons Protest
PL-616/28.2. Pennsylvania v. Mumia Abu-Jamal (Philadelphia Cty Ct of Common Pleas Nos 1357-58, 1982); 521 PA 188 (1989); cert den 111 SCt 215 (1990); reh'g den 111 SCt 541, 2819 (1990-91)

12/9/81: Police officer stopped Def's brother for traffic violation; Def-journalist, former Black Panther witnessed beating, tried to intercede, struggle ensued: police officer fatally shot, Def shot in stomach. Def, eyewitnesses reported third party fired shots. Police beat Def at scene, arrested: murder.

• 1982: At trial, Def denied pro se defense; prosecution excused 12 African-Americans on jury panel, final jury included 2 African-Americans (Philadelphia 40% African-American). Prosecution never produced gun that killed officer, asserted Def had pistol registered in his name that could have been weapon used. 7/3/82: Jury convicted Def. 7/4/82: At sentencing h'g, DA informed jury they were not being "asked to kill anyone" because Def would have numerous appeals, claimed Def's membership in Black Panther Party showed he was committed cop-killer. Jury recommended death penalty. 5/25/83: Sabo, J, sentenced Def: death in electric chair. On appeal, Def argued: denial of impartial jury, counsel of choice; prosecutor allowed to slander Def's character witness ("friend of cop-killers"). 3/6/89: PA Sup Ct, Zappala, J, aff'd sentence. 10/1/90: USSC denied cert (8-1); Marshall, J, diss. 11/26/90: USSC denied petition for reh'g. 6/10/91: USSC denied motion for leave to file second petition for reh'g. Def remains on death row.

Rachel Wolkenstein, Partisan Defense Comm, PO Box 99, Canal St Station, NY, NY 10013; Leonard Weinglass; Steven Hawkins, NAACP Legal Defense Fund

  Death Penalty
- 28.3 -
PL-283/28.3. Connecticut v. Beaumont (Trident 9)

(Groton Ct)

7/4/82: 9 Defs entered Gen'l Dynamics Electric Boat Shipyard; 4 boarded Trident USS Florida, damaged missile hatches, poured blood, spraypainted "USS Auschwitz"; 5 others entered storage yard, damaged 2 Trident sonar spheres; arrested: criminal mischief, trespass, conspiracy.

• J denied justification defense, expert testimony. Jury convicted on all charges. Sentences: up to 1 yr jail, $1387 restitution. All Defs served time; 1 paid restitution, 8 served extra time instead.

  Nuclear Weapons Protest
PL-281/28.3. Connecticut v. Grady (Plowshares #4)

(Groton Ct)

11/14/82: 7 Defs entered Gen'l Dynamics Electric Boat Shipyard, hammered, poured blood on Trident missile hatches, components; arrested: criminal mischief, conspiracy, trespass.

• 1983: J denied justification defense; jury convicted; sentences: 2 mths-1 yr; Defs served time.

  Nuclear Weapons Protest
PL-54/28.3. Minnesota v. Honeywell 1,880 (Honeywell Project)

(Hennepin Cty Dist Ct 1982-88)

11/82-9/88: Tens of thousands demonstrated against Honeywell Corp military production; police arrested 1,880, including wife of Police Chief Bouza; typical charges: trespass, resisting arrest.

• 11/82-9/88: Dist Ct judges dism'd charges against 50 trial groups before trial: technical deficiencies in DA's cases (eg, 8 Defs arrested 11/85 had charges dism'd 9/16/86: DA could not prove arrestees were same people as identified because 2 sets of police involved but only 1 set of officers' names supplied; 6 Good Friday '86 Defs' charges dism'd when arresting officer in hospital, unable to testify). After 85 jury trials of numerous protesters: 16 juries acquitted, 69 juries convicted. Typical sentences: 2 days jail, $50 fine, 1 day community service.

Honeywell Project

See PL-28/35.1; PL-316/28.12; PL-317/66.1

  Nuclear Weapons Protest
PL-117/28.3. Washington v. Rakevich (Kitsap Cty Dist Ct No 83-03020)

3/22/83: Demonstration held to protest "white train" in Bangor, WA. 5 arrested: trying to block train (misdemeanor). 2 Defs appeared pro se. Defs' brief argued actions justified by binding principles of int'l law, Kellogg-Briand Pact, Nuremberg Principles, (PL-370/2.1), Hague Conventions, (PL-90/2.7, PL-553/50.1), (PL-62/65.1, PL-62a/65.2), UN Res 3168, 1653, 2373.

• Phillips, J: denied int'l law defense; permitted expert testimony on

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int'l law re mental state. After 5+ hours deliberation, jury convicted Defs; sentences: $200 fines, 90 days suspended.

John Midgley, Robert Adelman

See PL-77/25.5; PL-119/25.2

  Nuclear Weapons Protest
PL-118/28.4. Washington v. Delaney (Aukeen Dist Ct, King Cty)

9/27/83: 5 members of Puget Sound Women's Peace Camp impersonated Boeing employees, entered Boeing Cruise Missile Production Facility in Kent, WA, to talk w/ workers; arrested: 1st degree criminal trespass.

• Trial J denied int'l law, necessity defenses. Jury convicted; sentences: 16 days. 3 Defs served time, other 2 agreed to pay ct costs, do community service.

Lynn Greiner, Rachel Levy, Kristin Delaney, Cynthia Nelson, pro se

  Nuclear Weapons Protest
PL-113/28.4. South Carolina v. Braswell (Aiken Cty Magis' Ct); 42 Guild Practitioner 103-06, 125-26 (1985)

10/83: Defs planned to block traffic outside Dupont Co's Savannah River plant, protesting proposed manufacture of cruise missile parts. U.S. Atty obtained injunction against demonstrations from fed'l ct; Defs got injunction lifted. 10/24/83: Demonstrators tried to prevent people from going to work; 100 arrested: impeding traffic. Defs agreed to stipulation on what prosecution witnesses (police) would testify to in return for no state efforts to exclude testimony by Defs, experts, jury instructions on necessity, 1st Amdt.

• After hearing 2 days of defense expert testimony, jury convicted.

Robert L Hallman

  Nuclear Weapons Protest
PL-34/28.4. Minnesota v. Brechon 352 NW2d 745 (MN Sup Ct 1984)

4/83: 9 Defs blocked entrances of Honeywell's int'l headquarters in protest of Honeywell's research, development, production of nuclear weapons systems; arrested: trespass.

• J ruled Defs could offer evidence re reasons for trespassing under state stat. 6/13/83: Jury acquitted. Dist Ct rev'd. 8/3/84: MN Sup Ct, Todd, SJ: unanimously reinstated trial ct order, remanded. On retrial, all Defs appeared pro se; convicted.

John Brechon, Scott Carpenter, Mark Wernick, 2520 Park Ave; Michael C Hickey, Robert D Metcalf, Maurice U Lazarus, 1660 Hwy 100 S; all Minneapolis, MN

  Nuclear Weapons Protest
PL-337/28.4. Oklahoma v. Stahl 665 P2d 839 (OK Ct of Crim App 1983); cert den 464 US 1069 (1984)

6/2/79: 9 Defs-reporters entered site of proposed nuclear power plant during Sunbelt Alliance demonstrations; 9 Defs, 339 others arrested: entry w/out permission (21 OS 1981 §1935(a)). Defs filed motion to dismiss: 1st Amdt freedom of press.

- 28.5 -

• 1/15/80: After bench trial, Ct denied motion to dismiss: utility's nuclear activities considered state action because of Gov't entanglements, subsidies; 1st Amdt applies; press had no special right of access to crime scenes under 1st Amdt; convicted Defs. 5/21/80: Sentences: $25 fine, $27 costs each. 6/22/83: OK Ct of Crim App aff'd (2-1), Brett, J, diss: criminal trespass stat violates free press clause.

Robert Hager, E Barrett Prettyman; expert witness: Dr Amory Lovins (Gov't subsidies to nuclear industry); amici: ACLU; Harvard Civil Rights-Civil Liberties Comm

  Nuclear Power
PL-3/28.5. California v. Barr (Livermore-Pleasanton Muni Ct, Alameda Cty, Nos 5151-6401)

6/20/83: Massive demonstration against nuclear weapons development at Livermore Nuclear Weapons Lab; 21 Defs among 1,000 arrested: obstruction of roadway (Pen C §§647c, 148.9). Def's pretrial brief sought discovery, extensive voir dire; trial brief argued Defs' fundamental right to present defenses, actions protected by 1st, 14th Amdts; CA Const Art I, §§1, 3, 5; (PL-370/2.1), Nuremberg Principles. 5 churches filed amicus briefs on Defs' freedom to exercise religion.

• DA dropped charges against 11 Defs, 1 pleaded nolo. 1/84: At trial, J heard Defs' expert witness, did not permit testimony to go to jury; after 5 days' deliberation, jury convicted 9; sentences: 8-10 days served before arraignment.

Joanne F Casey, Warren B Wilson, Priscilla Camp, Ann Fagan Ginger

  Nuclear Weapons Protest
PL-163/28.5. California v. Adam Weber; California v. Phipps 208 CA Rptr 719 (San Diego Super Ct App Dept 1984)

During demonstrations by nuclear protesters at Gen'l Dynamics, U.S. Navy Sub Base, Ballast Point, San Diego, 4 Defs arrested: trespass, obstruction of street/sidewalk (Pen C §§602(n), 647(c)).

• In J refused jury instruction on necessity defense. In J gave necessity instruction to jury. Both refused jury instructions on int'l law, Nuremberg Charter. In after conviction, J equated Defs' action w/ felonious theft of Gen'l Dynamics' possession, police services, ct's time; sentences: 6 mths jail, 45 days suspended for 2 Defs, 1 day suspended for Phipps. 2 trials consolidated on appeal. 9/21/84: App Dept aff'd all convictions: 1) in J correctly refused necessity instruction; in J erred in giving instruction; 2) no duty existed to give instruction on int'l law. remanded for resentencing, due to trial J's improper standard for sentencing.

Diane C Campbell, Allen R Bloom

  Nuclear Weapons Protest
PL-127/28.5. Rhode Island v. Champa 494 A2d 102 (RI Sup Ct 1985)

10/3/83: Group entered Gen'l Dynamics' Electric Boat Division, spraypainted Trident II missile tubes to protest nuclear war; 3 arrested: trespass, malicious injury to property.

• 1/84: Trial J denied necessity defense, charge that jury could reach own conclusion despite ct's instructions. J: 1 Def in contempt; jury

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convicted on both charges; sentences: 6 mths prison, probation, fine. 6/19/85: RI Sup Ct aff'd.

  Nuclear Weapons Protest
PL-33/28.6. Washington v. Johnny Baranski (Clark Cty Dist Ct)

7/24/84: 38 attempted to block "white train" transporting nuclear warhead components through Vancouver, WA; arrested: obstructing train (RCW 81.48.020).

• 9/84: Ct denied necessity defense, int'l law; gave jury instructions. Jury convicted Defs; sentences: different fines.

William D Robison, Morse & Brat, Ste 400 Arts Bldg, 1104 Main St, Vancouver, WA 98666; Aver, Glick & Powell

  Nuclear Weapons Protest
PL-233/28.6. Rhode Island v. Panopoulos (Trident II Plowshares)

(Cty Ct)

10/1/84: 5 entered Electric Boat Quonset Point facility, N Kingston, damaged Trident II missile tubes w/ hammers, blood, unfurled banner, posted "Call to Conscience" condemning Trident weapons under int'l, religious law; arrested: possession of burglary tools, malicious damage to property, criminal trespass.

• During jury trial, Defs' expert witnesses qualified; J disallowed their testimony, justification defense. Defs pleaded guilty to malicious damage; prosecution dropped burglary tools charge; J dism'd trespassing charge. 10/18/85: Defs sentenced: 1 yr, $500 fine. Defs served time.

  Nuclear Weapons Protest
PL-64/28.6. New York v. Wilson (City, Cty of Albany Police Ct)

4/24/85: State U of NY (SUNY) students staged sit-in at Central Admr Business Office to protest U.S. rejection of divestiture from cos operating in S Africa; arrested: 3d degree criminal trespass (NYPL 140.05). Defs filed pretrial motions raising defenses of justification, int'l law ( PL-370/2.1), Nuremberg Principles, 1st Amdt.

• 8/15/85: J denied expert testimony on apartheid, NY legislator on role of protests, demonstrations in shaping public policy. J convicted Defs; ordered: $250 each, not participate in "unlawful demonstration" for 1 yr.

Mark S Mishler

  Apartheid
PL-138/28.6. Ohio v. Elliott (Athens Cty Muni Ct Nos CRB 85-7-106 - 108)

6/29/85: 3 Defs entered Athens IRS office "authorized personnel only" area to publicize U.S. funding of Nicaraguan contras; arrested: criminal trespass (ORC 2911.21(A)(4)). Defs' memo in opposition to state's motion in limine argued: actions justified under Nuremberg Principles, int'l law, 1st Amdt, necessity defense (ORC 2901.01(L)).

• J permitted 2 expert witnesses to testify outside jury's hearing on necessity defense, int'l law; held experts' testimony insufficient, would not permit jury to hear; rejected int'l law defense; included jury

- 28.7 -
instructions on necessity, 1st Amdt defenses. During trial state, DA produced U.S. Justice Dept printout of fed'l cases disallowing defenses in civil disobedience cases, asked if defense expert was member of Communist Party. Defs filed motion in limine to prohibit such questions; DA stipulated to order. 10/6/85: Jury convicted; later said they supported Defs.

Richard R Renner, Jonathan Sowash, Athens, OH; Betty Elliott, Richard Moser, pro se

  Contra Aid
PL-106a/28.7. California v. Patrick "Hooty" Croy (Placer Cty Super Ct); 41 CA3d 1 (CA Sup Ct 1985)

7/16/78: After scuffle in store w/ 27 police officers, Def fired once, killed police officer; Def surrendered; charged: conspiracy to commit murder (see PL-106/25.15).

• Placer Cty jury convicted Def; sentence: death. 12/31/85: CA Sup Ct rev'd, ordered resentencing. 10/4/90: Super Ct resentenced: 10 yrs probation.

J Tony Serra, 473 Jackson St, 94111; Jasper Monti, 629 Bryant St, 94107; both San Francisco, CA

See PL-106/25.15, PL-106b/29.1

  Native American Rights
PL-4/28.7. California v. Brannon (Livermore-Pleasanton Muni Ct, Alameda Cty)

6/20/83: Defs arrested at demonstration against nuclear weapons development at Lawrence Livermore Lab: obstructing roadway.

• 12/5/83: Defs filed extensive Memorandum of Points and Authorities in Support of Right to Present Evidence of Int'l Law; brief argued right to assert necessity defense. Muni Ct J granted Defs' motion for representative trial of 11, other 220 Defs to be bound by outcome; rejected necessity defense, Defs offered no defense; 12/8/83: Jury convicted Defs. 1/17/85: Alameda Cty Super Ct-App Dept upheld convictions. 4/26/85: CA Sup Ct denied h'g (6-1). 10/24/85: Defs filed petition for writ of habeas corpus in U.S. DC (ND CA). 11/7/85: Patel, DJ: issued order to show cause. 2/12/86: convictions aff'd. All Defs served sentences based on decision against 11 Defs tried.

Leonard Post, Alan Ramo, Andrew M Lichterman

  Nuclear Weapons Protest
PL-143/28.7. California v. Crane (Little Lake Justice Ct Nos 8238-39, Mendocino Cty)

4/15/85: 2 Defs participated in 1-hour demonstration outside front door of Remco Hydraulics in Willits, CA, distributed leaflets, spoke w/ employees on Co's involvement in nuclear arms race, carried sign: "We are all chained to nuclear weapons bought by our tax dollars"; arrested: misdemeanor trespass (Pen C 602(j)). 10/17/85: Defs filed pretrial memo outlining right to present all relevant defenses: necessity, int'l law including Nuremberg Principles, (PL-370/2.1), int'l treaties, conventions, resolutions signed by U.S. Gov't, 1st Amdt, self defense; defense of others, defense of property.

- 28.8 -

• 2/27/86: In pretrial chambers meeting, Defs pleaded nolo to reduced trespass charge; sentences: 24 hours community service.

Norman Rosen Vogel

  Nuclear Weapons Protest
PL-162/28.8. Missouri v. Diener 706 SW2d 582 (MO Eastern DCA Div 1, 1986)

11/10/83: Def in large demonstration against nuclear weapons production at Gen'l Dynamics Corp, Clayton, MO; arrested: 1st degree trespass (§569.140 RSM 1978).

• 12/3/84: J denied necessity defense; jury convicted; sentence: 3½ mths jail. 3/11/86: DCA unanimously aff'd: Def failed to prove imminence of threat, lack of available alternative remedy.

  Nuclear Weapons Protest
PL-71/28.8. Rhode Island v. Trident II Pruning Hooks (Washington Cty, RI Super Ct)

4/18/85: 6 Defs entered Gen'l Dynamics Electric Boat Shipyard at Quonset Point, N Kingston, RI, hammered, poured blood on 3 Trident II (D-5) nuclear missile tubes; arrested: felony possession of burglary tools, misdemeanor trespass, malicious damage to property.

• 8/13/85: At pretrial conference, Defs refused to plea bargain 2 yrs probation, restitution in exchange for nolo plea. J denied justification defense; jury convicted on all charges. 3/31/86: Sentences: 3 yrs, suspended after 1 yr, 2 yrs probation.

Amy Tabor

  Nuclear Weapons Protest
PL-284/28.8. Wisconsin v. Leys (Wisconsin ELF Disarmament)

(Hayward Ct)

8/14/85: Def damaged Extra Low Frequency (ELF) pole by sawing 2 deep notches; arrested: criminal property damage.

• 9/30/85: Jury convicted Def. 10/29/85: Sentence: 5 mths jail, 3 yrs suspended, 3 yrs probation, $4,775 restitution. 4/86: Def began serving time: refused to pay restitution for reasons of conscience. 9/86: Ct of App aff'd; Def served 3 yrs.

  Nuclear Weapons Protest
PL-226/28.8. Georgia v. Cheatham (Sumter Cty Ct)

2/86: 5 arrested: trying to block "white train" carrying nuclear warheads from Pantex plant (Amarillo, TX) to sub base (Charleston, SC).

• 6/86: Defs found guilty. J offered sentences: 2 mths jail, $1000 fine; Defs refused. Sentences: 1 yr. Defs served time.

  Nuclear Weapons Protest
PL-169/28.8. California v. Appleby (Little Lake Justice Ct No 8717, Mendocino Cty 1986)

3/28/86 (Good Friday): Def entered Remco Hydraulics, poured own blood on plaque from Martin Marietta acknowledging Remco's contribution to MX missile manufacture; arrested: trespass, vandalism.

• 6/5/86: In bench trial, J denied necessity defense, expert testimony

- 28.9 -
on: nuclear weapons, necessity, int'l law, 1st Amdt defenses. Witnesses testified to Def's character. DA asked whether Def was Communist; objection sustained. J convicted, based on (PL-163/28.5, 208 CA Rptr 719); respected Def for courage of convictions; sentence: 1) 15 days jail (credit for 3 served, remaining 12 suspended); 2) $255 fine (payable as 51 hours community service); 3) $192 restitution to Remco for cleanup, employees' time, under "Victims' Bill of Rights," CA Const, Art 1, §28; 4) 24-mth probation. Def refused 3, 4. Sentence: 90 days jail; continued order to pay restitution.

Joel Coble

  Nuclear Weapons Protest
PL-240/28.9. Colorado v. Zook (Martin Marietta MX)

(Denver Cty Ct)

9/27/85: Nun, 2 other Defs entered Martin Marietta plant; unable to reach MX production areas, poured blood on windows, placed banner; arrested: felony burglary (dropped), criminal mischief (upgraded to felony). Defs imprisoned 1 mth, released on own recognizance.

• 3/5/86: During trial, J denied justification defense; jury convicted. 5/1/86: Sentences: 2 mths prison. Defs served time.

  Nuclear Weapons Protest
PL-202/28.9. (Beatty Township Justice Ct #10 2620A, Nye Cty)

9/86: Def-professor emeritus, senior lecturer, MA Institute of Technology, arrested w/ 149 other protestors at NV Test Site: trespass.

• 9/25/86: Sullivan, J: convicted Def after bench trial. Sentence: $150 or 6 days jail.

Lisa Peattie, pro se

See PL-203/28.11; PL-204/25.8; PL-205/25.8; PL-206/26.1

  Nuclear Weapons Protest
PL-160/28.9. Michigan v. Steven Latta (MI DC, 15th Dist No CR 85-1805)

10/22-23/85: Students at U of MI protested CIA recruiting on campus by occupying hallway, stairs outside Placement Office; refused to leave premises after warning; Defs arrested: trespass (MSA 28.820). 1/21/86: Defs' motion to dismiss: since Defs arrested during regular business hours on publicly-owned property, trespass stat unconstitutionally vague, overbroad, prior restraint on 1st Amdt freedoms.

• J denied necessity defense; Defs convicted. Cir Ct aff'd.

Molly H Reno, Nancy Francis

  CIA Recruiting
PL-157/28.9. New York v. Stewart Borowsky (City, Cty of Albany Police Ct #F-13105, 1986)

3/3/86: 4 Defs obstructed traffic protesting Pres Reagan's requested $100 million aid to Nicaraguan contras; arrested: disorderly conduct (Pen Law §240.20). Defs' filed Pretrial Omnibus Motion defenses of justification, int'l law (OAS, PL-370/2.1), 1st Amdt.

- 28.10 -

• 4/86: In bench trial, J denied expert testimony. J acquitted 2 Defs: police/witnesses failed to identify which Def did what; convicted 2 Defs: fined $200 each; refused to pay fine; resentenced: 15 days jail.

Mark S Mishler

  Contra Aid
PL-667/28.10. New York v. Goetz (NY Cty Sup Ct 1985)

12/22/84: White Def shot, wounded 4 African-American youths, two in back, on Manhattan subway train w/ hollow "dum dum" bullets; Cabey permanently paralyzed. Def confessed.

• NY Cty Grand Jury indicted Def: gun possession. 1985: Cabey sued Def for $50 million damages: bodily injury. 1985: Grand Jury re-indicted Def: 4 counts of attempted murder. 6/87: Jury acquitted Def on all but gun possession charge; sentence: 1 yr.

See PL-667a/39.1

  Hate Crimes
PL-340/28.10. New Hampshire v. Rajiv Menon (Hanover Dist Ct 1986)

1986: Def-Indian student led anti-apartheid activity at Dartmouth; participated in protests. U withheld degree as punishment. 6/86: Def attended commencement; arrested: disorderly conduct, resisting arrest.

• 8/86: At trial, Def claimed 1st Amdt right to attend exercises, denied resisting. Boswell, J: Def not guilty of disorderly conduct, guilty of resisting; sentence: 7 days jail, $250 fine; raised bail on appeal from $500 to $2,000. 8/21/86: Dartmouth Comm on Standards: Def guilty of disorderly conduct, not guilty of resisting, stipulated no degree until 6/87, banned from campus except for purely academic reasons.

Anti-Apartheid Defense Fund

  Apartheid
PL-352/28.10. California v. José Carrasco (Alameda Cty Ct #108942-8, 1986)

1986: Def participated in anti-apartheid rallies at U of CA, arrested: battery on police, resisting arrest, malicious mischief, 14 other counts.

• 12/12/86: Greenburg, J: granted Def's discovery motion of U Police complaint files. Police did not comply. 2/20/87: Def moved for dismissal based on police failure. J dism'd 16 counts; Def pleaded to malicious mischief, $250 fine.

Linda Fullerton, 145 Park Place, Pt Richmond, CA 94801

  Apartheid
PL-232/28.10. Washington v. Baxter (Spokane Cty Dist Ct #87-14060)

5/18/87: Pledge of Resistance, Spokane Peace & Justice Action League sponsored direct action to protest 50,000 U.S. troops in "war games" in Honduras. 100 walked to Navy recruiting station; it closed; demonstrators held vigil at Air Force recruiting station; it closed; 14 occupied Marine Corps office; city police arrested 14: 1st degree criminal trespass (RCW 9A.52.070, 9A.52.010(3)). 9/15/87: Defs submitted trial brief seeking admission of evidence to negate criminal intent based on

- 28.11 -
privilege under int'l law, Nuremberg Principles, necessity justification.

• 1987: Madden, J: rejected Defs' expert witnesses; convicted all Defs.

Lewis M Wilson, James Sheehan, George Caplan

  Honduras
PL-194/28.11. New York v. Boylan (Nassau Cty Dist Ct, 1st Dist Cr #33697-1986, #33699-1986)

8/6/86: Defs protested Sperry Corp's manufacture of nuclear components for Trident sub; arrested: trespass (140.05 Pen Law). Defs' memo argued justification (Pen Law 35.05(2)), 1st, 14th Amdts' freedom of speech/religion.

• 2/5/87: Bench trial, Alpert, J: rejected defenses of justification (Pen Law 35.05(2)), freedoms of speech/religion: rights of property owner not outweighed by interest of trespasser; Defs failed to establish: emergency; action had reasonable certainty of success; convicted.

Robert Boehm, 500 5th Ave, NY, NY 10036

  Nuclear Weapons Protest
PL-351/28.11. Florida v. Willa Elam (Brevard Cty Ct)

1/87: 186 protested at Cape Canaveral, including 77 yr-old CA woman atty who climbed, w/out detection, to 13th story of active Titan launch tower, Navy Trident II D-5, during testing program; announced action. Cty police arrested 186 under admr decision by U.S. Air Force/Cty that Cty process such cases (formerly handled by fed'l authorities).

• At trial, Defs called expert witness Prof Francis Boyle on int'l law defenses. J convicted, sentenced Def to 6 mths; released after 4 mths.

See PL-363/28.12

  Nuclear Weapons Protest
PL-203/28.11. Nevada v. Morearty (Beatty Township Justice Ct #11-2883A, Nye Cty)

2/5/87: Demonstration against nuclear weapons tests at NV Test Site; Def arrested w/ 430 others: criminal trespass (NRS 207.200(1)).

• 4/9/87: Sullivan, J: granted DA's motion in limine to bar defenses of duress, necessity, choice of evils, 1st Amdt; bench trial: J upheld DA's repeated objections on this basis; convicted Def; sentence: $150 fine.

John Morearty, 2906 Carpenter Rd, Stockton, CA 95205

See PL-202/28.9; PL-204/25.8; PL-205/25.8; PL-206/26.1

  Nuclear Weapons Protest
PL-293/28.11. Florida v. Maxwell (Brevard Cty Ct)

1/87: 200 arrested at Trident protest at Cape Canaveral: trespass.

• 1987: Jury convicted 3 Defs. Budnick, J: passed sentence, including requirement for Defs to develop "People-to-People" peace plan spurring dialogue between U.S./USSR citizens.

  Nuclear Weapons Protest
- 28.12 -
PL-231/28.12. California v. Hartwell (Santa Cruz Cty Muni Ct #Z87-6154)

10/28/87: 90 protesters closed Lockheed, Santa Cruz, for 2½ days; arrested: failure to yield to vehicular traffic. Defs raised crime prevention/int'l law defense, filed brief based on (PL-222/25.11).

• 12/11/87: McAdams, J: necessity defense requirement of "no adequate alternative" not met; convicted Defs.

Defs pro se, assisted by John Burroughs, 145 A St, Pt Reyes Station, CA; amici: Robert Aldridge, aerospace engineer; Prof Frank Newman

  Nuclear Weapons Protest
PL-363/28.12. Florida v. Willa Elam, Wendy Loomas (Brevard Cty Ct)

5/8/88 (Mother's Day): 78-, 77-yr old, 3 younger women demonstrated at Cape Canaveral Missile Test Range; arrested: misdemeanor trespass.

• 6/30/88: Haddad, J: denied int'l law, necessity defenses; convicted Defs; sentences: 4 to 9 mths; 1 to 1 yr due to previous trespass conviction. 9/88: Security Co sought $32,000 restitution for arrest costs; denied. Defs served 5½ mths.

Burton Greene, ACLU, PO Box 320087, Coco Beach, FL 32932-0087 in restitution h'g

  Nuclear Weapons Protest
PL-425/28.12. New York v. Frank Zollo (Town of Niskayuna, Schenectady Cty)

3/4, 3/23, 4/18/88: Defs-Knolls Action Project members requested meeting with manager of Knolls Atomic Power Lab (KAPL); refused. 4/22/88: Defs entered KAPL premises; arrested: trespass. Defs, DA agreed: Defs admitted trespass, DA did not object to justification (NY Pen C §35.05), int'l law defenses.

• In bench trial, Peter Weiss, CCR, gave expert testimony on int'l law; J convicted.

Connie Mayer

  Nuclear Power
PL-316/28.12. Minnesota v. Spring '87 Demonstrators (Hennepin Cty Dist Ct 1987)

Spring/87: Hundreds demonstrated at Honeywell Corp against military weapons production; many arrested: trespass. Defs sought to present necessity, Nuremberg Principles, technical defenses (speedy trial); some sought representative trials.

• 4/21/88: Jury convicted 5. J sentenced: 4 to 2 days, regardless of past arrest/conviction records; 1 requested community service, sentenced to 21 hrs. 5/5/88: 7 Defs representing larger group came to trial after several postponements making it impractical to present expert witnesses; 7 pleaded guilty; Burke, J: sentenced 7+ trial group to 1 day optional community service. 5/9/88: 4 Defs appeared for representative trial of 25; Lang, J, dism'd: violation of right to speedy trial.

Honeywell Project

See PL-28/35.1; PL-54/28.3; PL-317/66.1

  Nuclear Weapons Protest
- 28.13 -
PL-326/28.13. Florida v. Yoos 522 So2d 898 (FL 5th DCA 1988)

1987: 2 protested Trident I nuclear missile test on Kennedy Space Center property; arrested: criminal trespass (§810.09 FL Stats (1985)). DA, Def filed motions in limine.

• 1987: At trial, J granted State motion denying Defs' right to present Nuremberg defense: right under int'l law to act to prevent commission of war crime, crime against humanity. Defs pleaded nolo, appealed. 2/25/88: DCA aff'd, answering certified question: int'l law not paramount to FL criminal law, does not provide valid legal defense to violation of state criminal law.

Dan & Val Jonas, Sharon A Jacobs, 220 71st St Ste 210, Miami Beach, FL 33141

  Nuclear Weapons Protest
PL-387/28.13. Texas v. James Williams (Travis Cty Ct #7 No 307,892, 1988)

7/14/88: Def, 100 others entered vacant home owned by U of TX-Austin. Def, 2 other homeless men remained overnight; arrested: criminal trespass. 1989: Def's pretrial memo raised necessity defense (TX Pen C §9.22): Def's conduct being politically, morally motivated does not negate defense; Def sought to avoid harm of homelessness, influence Gov't housing policy, prevent planned destruction of 26 U-owned homes, influence U to provide low income housing as promised.

• Kennedy, J: did not allow necessity defense, expert testimony on lack of shelter in Austin. Jury convicted. No appeal.

Rick Levy, 1405 W 6th St, 78703; Julie Howell, 702 San Antonio Ste 201, 78701; Elizabeth A Crabbe, 2400 NCNB Tower, 515 Congress Ave, 78767; all Austin, TX

  Homeless
PL-547/28.13. U.S. v. Boertje 569 A2d 586 (DC Ct of App 1989)

12/29/84: Def knelt on White House tourist path to protest nuclear weapons policy, refused to move; arrested: unlawful entry. Def requested voir dire questions: whether potential jurors had relative, close friend in gov't agency, firm involved w/ nuclear weapons; raised 1st Amdt free speech.

• Beauden, Super Ct J: changed voir dire question to one about protests in general; jury convicted. 10/31/89: DC Ct of App aff'd, Terry, J: Def's 1st Amdt right not violated, his action did not communicate protest; changed voir dire question did not prejudice Def.

Nina Kraut, Washington, DC

  Nuclear Weapons Protest
PL-197/28.13. Connecticut v. Drummy 18 CT App 303 (1989); amicus 45 Guild Practitioner 36 (1988)

10/4/86: 4 Defs attempted to discuss U.S. foreign policy re Nicaragua w/ sergeant at U.S. Armed Forces Recruitment Center, New Haven. Police ordered Defs to move; Defs refused; arrested: criminal trespass (CT GS 53a-107).

- 28.14 -

• Trial J denied Defs' motions in limine: for permission to present necessity, int'l law defenses; to charge jury on necessity defense. Jury convicted. On appeal, amici argued Defs' actions not merely justified by int'l law, manifestation of int'l law at work (Nuremberg Principles), should have been admitted; since issue involved possible conflict that could lead to nuclear holocaust, trial ct decision denying Defs' necessity defense should be subjected to "more exacting judicial scrutiny," as in n4, 304 US 144, 152 (1937). 5/2/89: App Ct aff'd.

Defs pro se at trial; Elizabeth A Curry, Susan Meredith on appeal; amici Anne Simon, Peter Weiss, CCR, Lawyers Comm on Nuclear Policy

  Nicaragua
PL-388/28.14. California v. Bloom (Sacramento 1989)

7/7/89: 10 people occupied Sacramento BIA Office protesting Big Mountain relocation policy (Hopi & Navajo Tribes Land Act, 25 USC §640d), remained past office hours. Def arrested: disorderly conduct.

• 10/8/89: Magis allowed defense testimony based on 1st Amdt, (PL-364/2.1, 78 UNTS 277 (1948)), (PL-365/50.5, 18 USC §§1091-3), Nuremberg Principles, 1980 4th Russell Tribunal on Rights of Indians of Americas. Magis convicted Def; sentence: $50 or 16 hrs community service.

Paul Bloom, pro se, Big Mountain Support Group, 720 E 20th St #1, Oakland, CA 94606

See PL-294/34.3; PL-133/43.8

  Native American Rights
PL-385/28.14. Alabama v. Cox 531 So2d 71 (AL Ct of Cr App 1988); cert den 488 US 1018 (1989)

1988: Defs-Klansmen arrested: aiding/abetting murder of black man. 2/88: During jury selection, Def's atty used peremptory challenges to strike blacks from jury. Prosecution filed petition for writ of mandamus, alleging violation of 14th Amdt equal protection, citing 476 US 79 (1986).

• 6/28/88: AL Ct of Cr App denied writ. AL, 45 other states sought cert. 1/9/89: USSC denied cert.

Edward Carnes, AL Asst Atty Gen'l

  Hate Crimes
PL-549/28.14. Michigan v. Martin (Walled Lake Dist Ct #88-003767 - 003779); "Ramsey Clark's Testimony Annotated"

12 Defs stood in driveway of Williams Int'l Corp-cruise missile engine designer, manufacturer; arrested: molesting/disturbing persons in peaceable pursuit of lawful occupation. 3/14/89: Ramsey Clark, former U.S. Atty Gen'l, gave expert testimony that planning, preparation of weapons by Corp violated int'l law, including 1907 Hague Conventions Art 2 (2), (3), Art 33 (PL-370/2.1), Nuremberg Principles,

- 28.15 -
1949 Geneva Convention, (PL-364/2.1).

• 3/89: Batchik, DJ: int'l law had no place in his ct; refused to permit jury to hear Clark's testimony. 1989: Jury found 12 Defs guilty.

William H Goodman, 3000 Cadillac Tower; Deborah A Choly, 1816 One Kennedy Sq; Kenneth M Mogill, 1930 One Kennedy Sq, all Detroit, MI 48226; Julie H Hurwitz, 1394 E Jefferson, Detroit, MI 48207; Peter Dougherty, pro se

  Nuclear Weapons Protest
PL-11/28.15. Massachusetts v. John Schuchardt (AVCO Plowshares)

557 NE2d 1380 (MA Sup Ct 1990)

7/14/83: Protest against nuclear weapons production at AVCO Corp in Wilmington, MA; 7 arrested: criminal trespass, destruction of property. 8/1/83: Defs filed pretrial brief arguing illegality of nuclear weapons under int'l law.

• J allowed expert testimony on necessity, imminent danger of nuclear war (including Daniel Ellsberg, Admiral Gene LaRocque); excluded testimony on emotional harm to public from threat of nuclear war; ruled jury could not consider necessity defense; jury convicted; sentence: up to 3½ mths jail. Super Ct aff'd, Viola, J: Defs did not establish necessity. 8/15/90: MA Sup Ct, O'Connor, J: aff'd trespass; rev'd destruction of property: incorrect charge. Liacos, ChJ, diss: Defs presented sufficient evidence to establish necessity.

John Schuchardt, pro se; Robert L Hernández, Boston, MA

  Nuclear Weapons Protest
PL-619/28.15. California v. Nessen (Mt Diablo Muni Ct #110120-3, Alameda Cty); ( CA real party in interest, Contra Costa Cty Super Ct App Div #C88-01741)

9/1/87: Vietnam vet Willson, others, sat down on railroad tracks outside Concord Naval Weapons Station to protest shipment of weapons to Central America. Munitions train leaving base ran over Willson, causing loss of two legs. (See PL-234/41.2, PL-234a/30.8). 9/5/87: 10,000 gathered outside Weapons Station to protest maiming, U.S. involvement in Central America; several hundred began dismantling nearby RR tracks. Police on scene did not interfere. 2/22/88: Def charged: conspiracy to dismantle RR tracks, Pen C §182.1; felony vandalism, Pen C §549(B)(i). 3/1/88: Def only person arrested. After arrest, Contra Costa Cty DA Yancey told reporters he felt Def was "primarily responsible" for "mob scene", remarks published in newspaper. 3/10/88: Muni Ct imposed conditions on Def's release on own recognizance: 1) obey all laws; 2) banned from Concord Naval Weapons Station. 3/28/88: Def filed Motion to Reconsider Conditions, Motion to Demur. 4/8/88: Simon, J: denied motions. 8/31/88: Def petitioned Contra Costa Cty Super Ct for writ mandating Muni Ct to remove conditions, alleging Muni Ct abused discretion in denying writ. 9/10/88: Def moved to dismiss for selective prosecution, prosecutorial delay: complaint filed 5½ mths after demonstration, inhibited preparation of defense; to disqualify DA's office on ground Yancey's statements constituted conflict of interest making fair trial unlikely.

- 28.16 -
10/14/88: Super Ct App Div denied Def's motions.

• 8/90: At trial, Def pleaded not guilty. Law, J: Def "reasonably good person" who should not face felony charges. Def changed plea from not guilty to nolo. 8/23/90: Law, J, sentenced: 500 hours community service, $500 fine, 3 yrs probation.

Linda Fullerton, 124 Washington Ave, Ste A, Pt Richmond, CA 94801

  Nuclear Weapons Protest
PL-306/28.16. Colorado v. Doub (Jefferson Cty Ct #87M2169); 800 P2d 607 (CO Sup Ct 1990)

8/9/87: On anniversary of Nagasaki bombing, protesters attempted to block workers entering DoE-Rockwell Int'l nuclear weapons facility; 320 arrested. 8/20/87: 5 DAs met w/ 3 judges to discuss case w/out notifying defense attys. Defense learned of meeting through anonymous letter, moved to recuse judges.

• Goldberger, J: attended meeting, denied recusal motion. Jefferson Cty Dist Ct, Munch, J: remanded, instructed Goldberger to take additional facts into consideration; on remand, Goldberger recused himself. At jury trial, J denied expert testimony, evidence re int'l law, necessity, 1st Amdt defenses. Jury convicted 8 Defs; J sentenced 7: $96 costs, 8 days community service; 1: $45 costs, 4 days community service; 1 Def pleaded guilty, no sentence. 7/88: 4 Defs scheduled for trial. 11/13/90: CO Sup Ct aff'd (6-1), Erickson, J: Def's evidence insufficient as matter of law to support specific, definite imminent injury required for necessity defense. Quinn, J, diss: Def's evidence should have been submitted to jury; magnitude, probability of nuclear harm sufficiently imminent even though actual war not impending.

Eugene Deikman, 1700 Broadway Ste 702, Denver, CO 80290; Alan Dunn, 4800 Wadsworth Blvd #318, Wheatridge, CO 80033

  Nuclear Weapons Protest
PL-389/28.16. California v. David Wylie (Santa Clara Muni Ct #E8849052)

8/9/89: 15 Defs leafleted re Lockheed's Trident II missiles to Sunnyvale employees on 43rd anniversary of Nagasaki bombing; ordered to leave, refused, arrested: trespass (CA Pen C §602(n)). 11 pleaded nolo.

• 6/29/90: Gurney, J: allowed Defs' expert witness Justice Frank Newman: Trident Missile (being developed for first-strike capabilities against USSR) is violation of int'l law. Defs testified intent to obey Nuremberg Principles. J instructed jury: disregard int'l law. Jury convicted Defs; sentences: 30 days suspended, 1 yr probation, $115.

Craig A Brandt, John Burroughs, Western States Legal Foundation, 1440 Broadway Ste 420, Oakland, CA 94612

  Nuclear Weapons Protest
PL-550/28.16. Ohio v. Coalition to Stop Envirosafe (Lucas Cty Ct of Common Pleas 1990)

11/14/89: Envirosafe Services of OH Inc, suburban hazardous waste dump, sought, received injunction to prevent Def's plan to demonstrate at Co. 11/15/89: Def carried out protest, police arrested 12: blocking entrance, disorderly conduct; 2 w/ resisting arrest.

• 12/15/89: Resnick, J: Defs guilty of contempt: violation of ct order.

- 28.17 -
1/31/90: Resnick, J, sentenced: $200 fine, 3 days jail, suspended provided 100 hours community service performed for Sierra Club.

  Nuclear Weapons Protest
PL-625/28.17. New York v. Scutari 560 NYS2d 943 (Nassau Cty Dist Ct 1990)

2/2/90: 7 Defs sought to speak w/ Rep McGrath re El Salvador; refused to leave office until appointment scheduled; arrested: trespass.

• 9/5/90: At bench trial, Defs sought to present necessity defense, expert testimony on human rights violations by El Salvador Gov't. 9/90: Seybert, J: Defs not entitled to necessity defense: no real emergency; convicted Defs.

Douglas Colbert, Keri Gould, Community Legal Assistance Corp; Matthew Chachere, CCR, 666 Broadway, 7th Fl, NY, NY 10012

  El Salvador
PL-569/28.17. Michigan v. Richa (59th Jud Dist #8421)

9/24/90: Def stood leafleting at supermarket entrance during boycott of Folgers' coffee; arrested: trespass, obstructing police officer. 10/11/90: During pretrial h'g, DA offered to drop obstructing charge if Def pleaded guilty to trespass; Def refused. Def moved to dismiss obstructing charge; DA dropped charge.

• Verema, J: denied evidence on Nuremberg Principles, int'l law, jury nullification, 1st Amdt freedom of speech including freedom to be heard. Def testified supermarket essentially public property. Jury convicted; sentence: $200. Def refused to pay fine; J changed sentence to 20 days Cty jail, to be served when space available. Def still not notified space available.

Richa, 448 Pleasant St SE, Grand Rapids, MI 44503, pro se

  Leafleting
PL-386/28.17. New York v. James O'Grady (Richmond Cty Crim Ct Nos 8R001031, -1035, -1037); 560 NYS2d 602, 147 Misc 2d 118 (6/18/90, corrected 1/17/91)

3/88: Coalition for Nuclear Free Harbor demonstrators climbed chain link fence surrounding U.S. Navy's homeport, Stapleton, Staten Island, during construction; police warned, arrested Defs: 3rd degree criminal trespass (Pen Law 140.10(a)). Defs filed motions to dismiss in interests of justice. Most demonstrators pleaded guilty; 3 did not.

• 12/19/88-1/24/89: In bench trial, Defs sought to present int'l law defense. McBrien, J: denied motion. In 2-day trial, Defs testified effectively re issues. McBrien, J: Defs guilty; sentences: $200-$500 fines, 1 yr, discharged on condition Defs avoid homeport. 1/17/91: aff'd: free speech, justification defenses w/out merit.

Defs pro se; Peter Weiss, Matthew Chachere, CCR, 666 Broadway, 7th Fl; Robert L Boehm, Lawyers Comm on Nuclear Policy, 225 Lafayette St; all NY, NY 10012

See PL-111/43.5; PL-150/48.3; PL-270/48.3; PL-271/48.4; PL-272/48.4; PL-273/48.4; PL-274/25.15

  Nuclear Homeporting
- 28.18 -
PL-367a/28.18. North Carolina v. Eddie Hatcher 387 SE2d 56 (NC Sup Ct 1989); 389 SE2d 100 (NC Sup Ct 1990)

2/1/88: Def, Timothy Jacobs occupied local paper to dramatize official corruption, involvement in drug trade, plight of local blacks, Native Americans (see PL-367/20.3). 12/6/88: After acquittal by fed'l ct jury, NC authorities reindicted/arrested Def: 14 counts kidnapping. 12/9/88: Hobgood, J: reduced bond from $140,000 to $25,000, posted by Nat'l Council of Churches; Def fled state. 1/89: Def surrendered to Shoshone-Bannock Tribal Ct, Ft Hall Reservation, ID. Lohah, Tribal J: required extradition request; NC obtained fed'l warrant instead. 1/29/89: Brannon, J: appointed Public Defender for Def in NC. 2/89: Def fled ID reservation after threat of FBI capture. 3/10/89: Def denied asylum at Soviet consulate-San Francisco; arrested: interstate flight. 7/2/89: Gov't returned Def to Robeson Cty.

• 7/7/89: Brooks, J: allowed Def's outside counsel to aid public defender. 9/5/89: Farmer, J, rev'd: Def denied outside counsel, pro se defense, must proceed w/ public defender. 11/14/89: Lake, J: Def's atty in criminal contempt, had Def bound/gagged, removed from ct. 11/27/89: NC Sup Ct, Wichard, J: dism'd Def's mandamus petition. 1/18/90: NC Sup Ct, Wichard, J: vacated 7/7, 9/5/89 orders, remanded. 2/14/90: Def pleaded guilty; sentence: 18 yrs. 9/18/91: Def attacked, nearly killed by inmate who implicated prison staff. 10/20/92: Def refused to work in unsanitary conditions, placed in prison lock-up. 2/24/93: Def on hunger strike protesting maximum security conditions, third parole denial.

See PL-367/20.3; PL-367b/49.6

  Native American Rights
PL-602/28.18. California v. Geronimo Pratt (San Francisco Super Ct); (Los Angeles Super Ct)

7/72: Def enlisted in U.S. Army, served 2 tours of duty in Vietnam, returned to U.S.; after assassinations of Malcolm X, ML King Jr, joined/became leader of Black Panther Party, named target of FBI's COINTELPRO efforts, arrested: murder. In Santa Monica, CA trial, Def asserted he was framed by FBI, Los Angeles police, DA; convicted. 6/91: Def filed 147-page petition w/ 300 pp of exhibits in San Francisco Super Ct to set aside conviction: evidence showed LAPD intimidation of witness who heard actual murderer discussing crime, previously unknown FBI wiretap showed Def in Oakland at time crime committed in Santa Monica; petition not filed in Los Angeles because it alleged misconduct by Richard Kalustian, DA at Def's trial, now sitting judge in Los Angeles, whose colleagues should not evaluate his credibility.

• 6/27/91: McCabe, J: issued order requiring state to show cause why Def should not be freed. Gov't requested case be transferred to Los Angeles. 7/1/91: McCabe, J: routinely transferred to another ct; new judge, Louie, J: granted Govt's order for transfer. 8/91: Klausner, Los Angeles Super Ct J: dism'd Def's petition. Appeal denied.

Robert Bloom, Berkeley, CA; Stuart Hanlon, San Francisco, CA

See PL-602a/49.8

  Black Panthers
- 28.19 -
PL-611/28.19. New York v. Marcia Craig (Nicaragua 11)

(Rochester City Ct 1985); 585 NE2d 783 (NY Ct of App 1991)

5/85: Pres Reagan imposed embargo on Nicaragua. 11 Defs met w/ 2 U.S. Reps w/out incident. 5/7/85: Defs visited office of Rep Eckert, told Rep unavailable, refused to leave office; arrested: trespass (infraction). Defs raised necessity defense (NYPL 35.05): Eckert, conservative Republican close to Reagan, had power to affect policy.

• At bench trial, Valentino, J: denied expert witnesses on necessity defense; convicted; sentence: 1 yr probation. 12/19/91: Ct of App aff'd, Hancock, J: no basis for necessity defense. 1 Def died; appeal abated.

Irene Dymkar, 1135 Main St East, Rochester, NY 14609; Charles DiSalvo, WVU Law School, PO Box 6130, Morgantown, WV 26506

  Nicaragua
PL-575/28.19. Vermont v. Elliott (Franklin Cty Dist Ct 1989); 616 A2d 210 (VT Sup Ct 1992)

1979, 1983: Defs-36 members of Abenaki Nation fished on Missisquoi River w/out licenses to dramatize claims to ancestral land, aboriginal hunting/fishing rights, repatriation of archeological tribal remains, official gov't recognition; arrested; charges dropped. 10/19/87: Defs staged third "fish-in"; served w/ citations, ordered to appear 3/15/88 in VT Dist Ct, subject to $25 fine, barred from fishing for 1 yr.

• 8/11/89: Wolchik, J: dism'd charges against all but 6 Defs found not to be legitimate tribe members: 1) recognized Abenaki as tribe; 2) tribe retained aboriginal title permitting fishing w/out state licenses. 6/12/92: VT Sup Ct rev'd, remanded (5-0), Wood, J: aboriginal title extinguished by gradual series of historical events between 1763, 1971. On remand, charges against all but tribal protest leaders dropped.

Gabor Rona, Rubin, Rona, Kidney & Myer, Barre, VT; Neil Mickenberg, Mickenberg, Dunn, Sirotkin & Dorsch, 29 Pine St, PO Box 406, Burlington, VT 05401-0406; James A Dumont, Sessions, Keiner, Dumont, Barnes & Everitt, Middlebury, VT

  Native American Rights
PL-576/28.19. Massachusetts v. Scott Schaeffer-Duffy, Maureen Briggs (Springfield Dist Ct, Hampden Cty, 9023JC 3680); 592 NE2d 777 (MA App Ct 1992)

10/20/90: 13 Defs blockaded gates to Westover AFB to protest Operation Desert Shield; arrested: trespass. Ryan, J: allowed in part Defs' pretrial motion to present evidence, expert witnesses on necessity; excluded evidence on effect of arms race/Persian Gulf War on U.S. poor.

• 5/91: At trial, Defs' expert witnesses testified on: imminence of war in Persian Gulf as of 10/90; destructive capability of weapons deployed in Gulf; threat to civilians; crimes against Arab-Americans since deployment of troops to Persian Gulf, history of necessity defense, civil disobedience. Ryan, J, granted DA's motion to strike necessity defense: Defs raised sufficient evidence on elements of imminence of threat, lack of effective legal means to abate threat, lack of clear legislative

- 28.20 -
position on issue; Defs failed to show effectiveness of means to abate threat. Jury found Defs guilty. 5/4/92: MA App Ct aff'd.

Scott Schaeffer-Duffy, pro se, 52 Mason St, Worcester, MA 01610

  Gulf War Protest
PL-210/28.20. Texas v. Wilson; Katherine Arnold v. Texas (Travis Cty Ct at Law #1); 778 SW2d 172 (TX 3rd DCA-Austin 1989)

10/20/86: Def, 15 others locked selves into office of Pres, U of TX-Austin, protesting U investment in S Africa. Defs filed motions: in limine, to consolidate trials, to dismiss, to recuse judge.

• 5/11-7/27/87: At jury trials, to prove defenses of necessity, int'l law, public duty under TX Pen C Defs proffered expert witnesses: State Sen Craig Washington; Themba Ntinga, Sec'y, Youth Section, African Nat'l Cong Mission to UN; Joshua Nessen, American Comm on Africa; Prof Francis Boyle, U of IL; Prof Thomas DeGregori, U of Houston; Prof Mike Tigar, U of TX; State Sen Gonzalo Barrientos. Taylor, J: denied all defenses, did not admit evidence, give jury instructions on defenses; denied recusal motion. After 1 week trial, jury convicted Defs; sentences: 3-5 mths jail, $200 fine. 9/27/89: TX DCA, Smith, J, aff'd. 2/28/90: TX Ct of Crim App granted petition for discretionary review. 5/19-26/93: Def's motion for reh'g on petition for discretionary relief denied.

Brian East, 1405 W 6th, 78703; Tom Kolker, 1006 E 1st, 78702; Willie Schmerler, 607 W 10th, 78701; Cynthia Biggers; NLG; all Austin, TX

See PL-296/46.3; PL-450/57.1

  Apartheid
PL-851/28.20. California v. Powell, Briseno, Koon, Wind (Los Angeles Cty Super Ct B058842); 232 CalApp3d 785, 233 CalApp3d 607 (1991); (Ventura Cty Super Ct 1992)

3/3/91: Defs-Los Angeles police officers severely beat Rodney King-parolee/black motorist, after freeway chase. Witness videotaped beating, sold tape to local TV station. Initial viewing caused social/political uproar, nat'l media coverage. 3/26/91: Defs arrested, charged: 1) assault w/ deadly weapon by force likely to cause great bodily injury; 2) officer unnecessarily assaulting/beating King. Defs Koon, Powell charged w/ submission of false police report; Def Koon charged w/ being accessory after the fact. Defs pleaded not guilty, filed motion to change venue.

• Kamins, J: denied motion. 6/12/91: App Ct granted Defs' motion for stay of trial, jury selection. 6/17/91: Kamins, J: wrote to App Ct indicating willingness to change venue. 6/18/91: Kamins, J: sent ex parte communication to DA's office assuring DA venue would be handled properly. 6/19/91: Kamins indicated trial would remain in Los Angeles. 7/15/91: Defs filed motion to disqualify Kamins for cause: 1) ex parte communications w/ DA's office; 2) disregard for law to expeditiously move case to trial; 3) allowing media to influence case management. 7/23/91: App Ct, Klein, PJ (Danielson, Croskey, Hinz, JJ): compelled trial ct to change venue. 8/21/91: App Ct (Klein, Danielson, Croskey, Hinz) disqualified Kamins, J: changed venue to Simi Valley, Ventura Cty (population 2% black;

- 28.21 -
Los Angeles 10.6%; CA 7%). 4/29/92: After trial, jury acquitted Defs of all charges but use of excessive force under color of authority. Verdict shocked public, touched off 7 days of riots/revolts in Los Angeles, throughout U.S.

See PL-851a/49.8

  Police Brutality
PL-681/28.21. Texas v. Frank Bagget, Jr (Smith Cty Dist Ct, 1992)

1/29/92: Def, other police officers, prompted by informant who allegedly bought drugs from victim's relative, conducted pre-dawn raid outside of jurisdiction; Def shot, killed 84-yr-old black, bedridden woman; found no drugs; filed no charges; Def arrested: negligent homicide. Def claimed automatic pistol fired accidentally.

• 8/92: Inquest jury deadlocked; Grand jury failed to indict: rejected negligent homicide argument. Cty Commr Andrew Melontree: "Blacks have been complacent far too long; we all have a vested interest; get involved."

Ernest Deckard, Pres, NAACP of Tyler, TX; Andrew Melontree, Cty Commr, Tyler, TX

  Police Misconduct
PL-683/28.21. Arizona v. Elmer (DC AZ #CR 92-456 TUC JMR, 1992)

6/12/92: Dario Miranda-Valenzuela, unarmed, crossed AZ border to find work; Def-U.S. border patrol agent shot, killed him; Def, partner dragged body back to Mexico, hid body; Santa Cruz Cty Coroner: victim could have lived if given medical attention w/in 30 minutes. Def arrested: 1st degree murder, aggravated assault, obstruction of justice. Def admitted shooting, hiding body; Def claimed self-defense: victim was drug smuggler. Case removed to fed'l ct on Def's motion.

• 12/16/92: After trial, DJ reduced charges, told jury (11 whites, 1 Mexican-American) to deliberate on 2nd degree, manslaughter, not guilty verdicts. Jury acquitted. Roll, DJ: overturned another J's order releasing Def on $120,000 bond: Def must be kept in custody pending investigation on similar offense.

Guadalupe Castillo, La Mesilla Organizing Project, 630 S Main St, Tucson, AZ 85701

See PL-683a/29.4

  Border Control
PL-811/28.21. California v. Mousa and Raheeja Abdulghani; In re Aisha A, a minor (San Joaquin Cty Super Ct, SC51758 1992; Juv Ct); CA Lawyer (11/92 p22)

1992: 17 yr-old Arab-American: parents forced her into arranged religious marriage. Def-parents arrested: abducting, forcing minor to marry, aiding/abetting rape, battery, disturbing peace; bail denied. Def-husband arrested: sex w/ minor; pleaded nolo.

• 8/92: after ct trial, Saiers, J: complainant's testimony unbelievable,

- 28.22 -
fabricated to justify leaving home; acquitted Defs of felonies; convicted of disturbing peace, battery. Juv Ct denied parents custody; when complainant reached 18, dism'd case.

Gary Talesfore, Deputy DA, San Joaquin Cty; Mike Ballard, Public Defender

  Women's Rights
- 29.1 -
e. CASES PENDING

PL-106b/29.1. California v. Norma Jean Croy (Placer Cty Super Ct 1979); (3rd DCA 1981); (San Francisco Super Ct 1991); (1st, 3rd DCA, CA Sup Ct 1992); (ED CA #S-93-1153 LKK/JHM 1993)

7/17/78: Def-Shasta Karuk, Native American woman, fled w/ 4 others to grandmother's home in Yreka, CA following argument w/ store clerk; 27 police officers besieged family, fired 200 shots, shot Def in back.

• 7/24/78: Ct-appointed atty tried case before jury. 6/29/79: Jury convicted, sentenced Def to life imprisonment; Patrick Croy sentenced to death (see PL-106/25.15). 4/28/81: 3rd DCA aff'd. 5/1/90: On retrial Patrick Croy claimed self-defense, San Francisco jury acquitted; Stern, J: if Def tried under same facts/evidence presented in Patrick Croy's case, judgment would be not guilty. 12/20/91: San Francisco Super Ct denied habeas petition. 3/24, 5/14, 9/16/92: 1st, 3rd DCA, CA Sup Ct denied habeas petitions. 1993: Def's parole, fed'l habeas petitions pending.

James S Thomson, 660 J St Ste 280, Sacramento, CA 95814; Diana Samuelson, 473 Jackson St, 3rd Fl, San Francisco, CA 94111

See PL-106/25.15, PL-106a/28.7

  Native American Rights
PL-546/29.1. New York v. Dhoruba Bin Wahad cert den 434 US 987 (1977); 550 NYS2d 893 (App Div 1990)

3/2/69: Def-Black Panther leader arrested w/ 20 other Panthers ("Panther 21"): conspiracy to commit murder, arson. 3/70: Def released on bail. 5/13/71: Jury acquitted Panther 21. 5/19, 5/21/71: 4 NY police officers murdered; Black Liberation Army claimed responsibility. 6/5/71: Def arrested: armed robbery of narcotics club. Def pleaded guilty: clumsy attempt to rid black community of drugs. Police began to investigate Def for police murders. 6/12/71: Witness Pauline Joseph called police: Def not guilty of police murders. Police held Joseph as material witness for 20 mths; she changed story to hold Def guilty. At trial, prosecution did not introduce Joseph's recorded statements exonerating Def, exculpatory FBI, NYPD fingerprints, ballistics evidence. 1972: First jury hung. 1973: During jury selection, after several black jurors selected, Martinez, J, became ill; declared mistrial. 4/26/73: At third trial, only 5% of jurors selected were black; jury convicted Def. All appeals denied. 11/77: USSC denied cert. 1975: After U.S. Cong Church Comm disclosed COINTELPRO against Panthers, Def filed civil rights lawsuit. 5/80: Lowe, DJ: ordered FBI, NYPD to produce files on Def, Panthers, COINTELPRO. 1980-87: Def uncovered 300,000 pages of documents, challenged deletions. 1987: FBI produced file detailing investigation of Def, exculpatory tests, Joseph's interview exonerating Def. 4/88: Def filed motion for new trial.

• 3/17/89: McQuillan, J, denied motion: DA wrongfully withheld evidence which would have impeached Joseph but issue should have been raised on direct appeal. 2/8/90: Ct of App unanimously rev'd;

- 29.2 -
vacated conviction. 3/22/90: Def released on own recognizance; DA appealed release. 12/19/91: Ct of App overturned reversal of conviction: burden of proof on Def to prove withheld material would have affected jury's decision. 12/22/92: Allen, J, ordered new trial: reasonable possibility undisclosed statements to FBI would have caused different jury verdict. Pending.

Elizabeth Fink, Robert Bloom, Robert Boyle, 244 Atlantic Ave, Brooklyn, NY 11201; Joan P Gibbs, CCR, 666 Broadway, 7th Fl, NY, NY 10012

  Black Panthers
PL-720/29.2. California v. Valoree Jean Day (Tuolumne Cty Super Ct #29332, 1988); 2 CalApp4th 405 (5th DCA 1992)

1987: Def and boyfriend had violent relationship; he tried to strangle, run Def over w/ car; witnesses noticed bruises, black eyes, swollen lips, bite marks on Def's body after she moved in w/ boyfriend. 1/88: Def stayed at friend's house after boyfriend beat her; Def sustained black eye, bruises, red marks. 3/88: Boyfriend punched Def in face after another fight; Def never filed formal complaint despite history of abuse, alcohol abuse. 6/10/88: Boyfriend, drunk, came home late, allegedly attacked Def w/ knife, threatened to kill her; Def stabbed him. 6/11/88: Nurse examined Def, found bruises all over body, redness, swelling on knuckles, abrasions on right knee, elbow; boyfriend died. Def arrested: claimed self-defense.

• After trial, jury convicted Def: involuntary manslaughter, assault w/ deadly weapon. Def filed motion for new trial: counsel's failure to introduce evidence, investigation of Battered Woman Syndrome (BWS) (Evid C §1107). Hardin, J, denied motion: counsel's failures did not prejudice Def. 1/92: DCA rev'd, Ardaiz, J: counsel's failure to produce evidence of BWS did prejudice Def's case; prosecution would have had to explain behavior, misconceptions about women living in abusive circumstances. New trial pending.

Alisa M Weisman, CA

  Women's Rights
PL-682/29.2. Florida v. William Lozano (Dade Cty Cir Ct 1989); (FL Ct of App 1991); (Leon Cty Cir Ct 1993)

1/89: Def-Hispanic police officer killed 2 black motorists in predominantly black neighborhood resulting in rioting: 136 buildings burned, 1 person killed, 372 arrested; Def claimed victims tried to run him over while fleeing from other officer. Def arrested: manslaughter.

• 12/89: After trial, jury convicted Def of 2 counts manslaughter. 1991: Ct of App rev'd: trial should have been moved to different venue, jury "obviously", "justifiably" concerned riots may break out if Def acquitted. 5/6/92: Spencer, J, sua sponte, ordered change of venue for 2nd trial from Orlando to Tallahassee to insure blacks on jury: blacks make up larger percent of population; warned attys jury selection will be examined closely to insure no racial discrimination

- 29.3 -
w/ peremptory challenges. Def will challenge: right to trial by jury of peers sacrificed due to pressure. Pending.

Roy E Black, 201 S Biscayne Blvd Ste 1300, Miami, FL 33131 for Def

  Police Misconduct
PL-679/29.3. Louisville High School v. Harvey Darden (Louisville, MS Muni Ct 1990)

4/23-27/90: Def-head of Winston Cty NAACP led peaceful protest of 21 blacks: no aggressive, threatening, intimidating tactics used; Defs entered campus, held signs w/ 60 discrimination problems of school; Pls had Defs arrested: disturbing peace; Defs claimed 1st Amdt rights.

• Woods, J, convicted Def: 5 counts of disturbing peace; sentence: 150 days jail, $2,125 fine: "We have a good school system up here ... it's just a few radicals, renegades trying to run things, stir things up." Appeal pending; h'gs of 20 other Defs postponed.

Marie Wilson, Lawrence Young, Solomon Osborne, N MS Rural Legal Services, PO Box 928, Oxford, MS 38655

  Racial Discrimination
PL-571/29.3. New Hampshire v. Chichester (Rockingham Cty Super Ct 1990)

1/14/90: Def cut down nuclear siren pole in protest against Seabrook nuclear power plant; arrested, indicted: felony criminal mischief, misdemeanor disorderly conduct (later dropped). Def raised necessity, free speech defenses: 1st, 9th Amdts, NH Const Arts 3, 10.

• McHugh, J: granted 2 continuances. 9/16/93: Jury trial date.

Guy Chichester, Box 102, Rye, NH 03870, pro se

  Nuclear Power
PL-706/29.3. Mississippi v. De La Beckwith (re: murder of Medgar Evers)

157 So2d 403 (1963); 615 So2d 1134 (MS Sup Ct 1992)

1950s-60s: Medgar Evers, active black civil rights leader in MS. 6/12/63: Evers murdered in Jackson home. 6/23/63: Def-vocal segregationist, white supremacist, arrested for Evers' murder. 2/64: trial ended in hung jury. Judge released Def on $10,000 bail. 1967: Def ran unsuccessful campaign for Lt Gov; indicting DA did not seek reelection; successor DA requested, obtained nolle prosequi from Cir Ct. 12/90: Hinds Cty grand jury indicted Def for Evers murder; Cir Ct denied bail. 10/91: Def jailed. 4/92: Def moved to dismiss indictment: violations 6th Amdt right to speedy trial, 5th Amdt due process, double jeopardy.

• 8/4/92: Cir Ct denied motion. Def filed interlocutory appeal. 12/16/92: MS Sup Ct (4-3) dism'd in part, aff'd in part, remanded in part, Hawkins, J: speedy trial, due process issues afford no basis for interlocutory appeal; double jeopardy claim dism'd as w/out merit. Def's trial for murder pending.

Bobby De Laughter, Asst DA, Jackson, MS

  Hate Crimes
- 29.4 -
PL-685a/29.4. California v. Houghton (Alameda Cty Super Ct 1992)

2/87: Def moved behind Pl, Palestinian-American family in Castro Valley, CA. 7/87: Def sought variance to build multi-car garage at residence; homeowners assn, Pl, others voiced opposition at h'gs; City approved variance; Def began to racially harass, threaten, assault, batter, intimidate Pl. Pl sought injunction against Def. 7-12/89: Super Ct granted preliminary injunction, found Def in contempt, refused to jail Def. 1990-1992: Sheriff characterized situation as feud. 9/20/92: Pl signed final papers to sell house; Def fired multiple gunshots at Pl, real estate agent: shattered car window, damaged car trunk, garage ceiling, Pl not injured. Police arrested Def: attempted murder, assault w/ deadly weapon.

• 9/28/92: Lewman, J, denied bail: repeated threats, racial bias, previous contempt conviction. Pending.

Don Tamaki, 388 Market St Ste 1080, 94111-5315; Doreena Wong, Hate Violence Project, Asian Law Caucus, 468 Bush St, 3rd Fl, 94108; all San Francisco, CA

See PL-685-39.2

  Hate Crimes
PL-683a/29.4. Arizona v. Elmer 815 FSupp 319 (DC AZ 1993)

3/18/92: Nat'l Guard, in joint operation w/ border patrol, on lookout for drug smugglers; 20-30 male/female Mexicans crossed AZ border to find work; Def, other border patrol agents equipped w/ night vision goggles, M-16 rifles w/ infra-red targeting, fired at aliens for 5-10 minutes, hitting 1 in leg; incident unreported; aliens given voluntary departure same night. 7/22/92: Inspector Gen'l investigating Def for murder (see PL-683/28.21), received anonymous letter implicating Def; Def arrested: 10 counts aggravated assault. Def admitted shooting: thought victims were drug traffickers. Case removed to fed'l ct on Def's motion.

• 1/26/93: Roll, DJ: granted Def's motion to exclude evidence from murder trial, other acts; denied motion to exclude evidence of Def's firing at alleged drug traffickers, not in self-defense, on 3/16/92. Pending.

Guadalupe Castillo, La Mesilla Organizing Project, 630 S Main St, Tucson, AZ 85701

See PL-683/28.21

  Border Control
PL-826/29.4. Maryland v. Phil Berrigan (Howard Cty Dist Ct 1992); Catholic Agitator (4/92)

12/5/91: In anti-nuclear weapons protest at Johns Hopkins U Applied Physics Lab (received $300 million/yr from Pentagon for war research), 8 members of Baltimore Emergency Response Network (BERN) arrested: trespass.

• 3/26/92: At trial, Def complained re ct restrictions: "This is a disgrace"; Vaughan, J: convicted Def; sentence: 5 yrs. Appeal pending.

  Nuclear Weapons Protest
- 29.5 -
PL-909/29.5. In re Sgt Thomas Gerard; California v. Gerard (San Francisco Police Commn 1993); (San Francisco Super Ct 1993)

1985-92: Def-20 yr San Francisco Police (SFPD) Intelligence/Special Investigations Div inspector, Roy Bullock-acted as spy for 39 yrs for Anti-Defamation League of B'nai B'rith amassed/shared computer files on: ex-Cong McCloskey (R-CA), 3,000 Arab-Americans, 9,000 others; 1,000+ orgs from San Francisco, Los Angeles, San Diego, Portland, Chicago, St Louis, Atlanta, NYC: LA Times, Mother Jones, ACLU, Nat'l Lawyers Guild, CCR, Asian Law Caucus, Bay Area Nat'l Conf of Black Lawyers, African Nat'l Cong, NAACP, Black United Fund, N CA Ecumenical Council, Int'l Jewish Peace Union, Friends of Yesh Gvul, Israelis Against Occupation, American-Arab Anti-Discrimination Comm, Christic Inst, CISPES, Greenpeace, Earth Island Inst, UAW, AFSCME, SEIU, SF Labor Council/AFLCIO, Oakland Education Assn. Bullock told FBI: he/Def began selling info on U.S. reporters, anti-apartheid activists to S African agent in 1987, split $16,000 payment. 10/25/92: FBI questioned Def re possession of secret FBI/CIA docs, Bullock's claim; Def denied selling info to S Africa; FBI released Def: no secrets revealed; Def fled to Philippines: no extradition treaty w/ U.S. 11/92: Def sent retirement papers to SFPD. 2/11/93: SF Super Ct h'g, John Dwyer-Asst SF DA: 1 Chicago Arab-American detainee in Israel is on Def's list. 4/7/93: police w/ warrants raided ADL-SF/LA offices, Bullock's home, Def's former home/police locker.

4/9/93: SF DA released 700-page "Declaration of SFPD Inspector Ron Roth" containing transcripts of interviews w/ Def, Bullock, others, exhibits from seized docs, computer files; conclusions: 1) Def passed confidential law enforcement agencies' information to Bullock, who filed it w/ ADL; 2) Def gave Bullock SFPD files ordered destroyed in 11/90 pursuant to SFPD Disorder & Intelligence Guidelines; 3) copies of secret FBI report on Popular Front for Liberation of Palestine (see PL-241/44.4) found at Bullock's home, ADL-SF; 4) 1987-92: ADL committed 48 felonies by not claiming Bullock on tax returns; 5) San Diego Police Detective Carroll: Def, Bullock "work with the FBI quite a bit"; 6) Def's briefcase in SFPD locker contained: CIA instructional memo, newsletter; many alias passports, drivers/marriage licenses, birth certificate; 3 page "International Activities Division — Special Activities Group" w/ 100+ names/phone numbers Def identified as CIA int'l undercover agents, black cloth hood w/ drawstring, dozen articles on Central American death squad activities. 4/27/93: Def: "victim of circumstance" caught between CIA, FBI, ADL, SFPD; would blow lid on CIA support for Death Squads if prosecuted; CIA was directly involved in training/support of torturers/death squads operating in El Salvador, Honduras, Guatemala during mid-1980s; quit CIA in late 1985: could not stomach what he witnessed there; manila envelope containing "Interrogation Training Farm Prison 1984" is from CIA training camp outside Williamsburg, VA; 4 envelopes labelled "D.S." = information on death squads: "Secret Biodata of the Nominees to be Trained in Human Resource Exploitation (Interrogation) Course" w/ 13 names; CIA station chief in

- 29.6 -
San Salvador secret cable responding to query from CIA HQ-Langley, VA on alleged human rights abuses: "It shows they knew what was going on"; several photos show CIA agents attending interrogations/posing w/ death squad members; 3-page "Int'l Activities Div-Special Activities Group": "That's the who's who" of the CIA.

• 4/28/93: SF Police Commn public h'g: Def guilty of violating dept guidelines: unauthorized gathering/dissemination of intelligence; Commn to: 1) notify 7,000+ people, numerous orgs on Def's lists; 2) determine why files ordered destroyed in 11/90 policy change never destroyed. 5/6/93: SFPD arrested Def: theft of gov't documents, computer theft, burglary, conspiracy; Def released on $20,000 bail, returned to Philippines. 5/7/93: Cong Don Edwards (D-CA): threatened Cong h'gs re FBI's relationship w/ Bullock-ADL operative. Pending.

John Dwyer-Asst DA, Arlo Smith-DA, San Francisco, CA

  National Spy Network
- 30.1 -
B. CIVIL COURT DECISIONS
1. FEDERAL
a. CASES WON AT TRIAL COURT LEVEL

PL-589/30.1. Alan, Margaret McSurely v. McClellan (Sen Res 191, 91st Cong, 1st Sess, 1969); rev'd, remanded 426 F2d 664 (DC Cir 1970); 521 F2d 1024 (DC Cir 1975); 553 F2d 1277 (DC Cir 1976) en banc; cert granted 434 US 888 (1977); cert dism'd 438 US 189 (1978); 697 F2d 309 (DC Cir 1982); 753 F2d 88 (DC Cir 1985)

8/11/67: Pike Cty, KY police seized papers from Pls-civil rights organizers, arrested: sedition (KY Rev Stat §432.040). Defs, Sen Brick, 2 staff members inspected, took seized material to Washington w/out Pls' knowledge/consent; Ratliff, KY prosecutor, gave Sen access to Pls' papers. Sen subpoenaed Pls for doc held by Ratliff. 3/4/69: Pls appeared before Cong, refused to comply w/ subpoenas, Sen approved res authorizing contempt prosecution. 3/4/69: Pls sued Defs: declaration they did not have to comply w/ subpoenas, injunction to prevent criminal contempt charges being brought, alleging damages from violation of 1st, 4th, 5th Amdts, 42 USC §§1981, 1983, 1985.

• 12/18/69: DC stayed all proceedings until final disposition of contempt prosecution. 3/26/70: Bazelon, CJ, rev'd, remanded: over-broad. Pls amended complaint: damage claims against Defs, charging Sen Brick's inspection, transportation of docs unlawful, staff members entered into conspiracy w/ Brick. Sen Defs sought dismissal: immune from liability under Speech or Debate Clause. 6/12/73: DC denied motion. 10/28/75: Wilkey, CJ: rev'd in part, aff'd in part. 12/21/76: DC Cir, en banc, vacated, remanded: dism'd most claims against Sen Defs, divided on others. 10/11/77: USSC granted Sen Defs cert. 6/26/78: USSC dism'd writ. After trial on merits, jury returned verdicts against each Sen Def for violating Pls 1st, 4th Amdt rights, right to privacy. Sen Defs appealed. Ratliff settled w/ Pls, dism'd as party on appeal. 1/18/85: DC Cir, per curiam: aff'd verdict against Brick for violation of Pls' right to privacy, rev'd other verdicts.

Morton Stavis, Charles Mason Jr

  Freedom of Information
PL-279/30.1. Isabel Morel de Letelier v. Chile 488 FSupp 665, 19 ILM 409 (DC DC 1980); 502 FSupp 259, 19 ILM 1418 (DC DC 1980)

9/21/76: Orlando Letelier-Chilean exile leader/ambassador under Allende Gov't assassinated in Washington, DC. 8/78: Pls-relatives sued: Def-gov't directed assassination. Def submitted 2 diplomatic notes to U.S. State Dept, which it forwarded to DC: sovereign immunity, charges false.

• 3/11/80: Green, DJ: Ct had jurisdiction under FSIA tortious activity exception, 28 USC §1605(a)(5), act of state doctrine did not protect Def if it ordered assassination in U.S. 11/5/80: Green, DJ, issued default judgment: Gov't, agents of Pinochet responsible for assassination;

- 30.2 -
ordered $2.9 million damages. For later developments, see PL-279a/33.3, then see PL-279b/18.2.

Michael E Tigar, Lynne A Bernabei, Samuel J Buffone

See PL-279a/33.3, PL-279b/18.2; PL-126/20.2

  Chile Junta
PL-392/30.2. Soróa-Gonzáles v. Civiletti 515 FSupp 1049 (ND GA 1981)

Cuban refugee brought habeas corpus action to challenge legality of indefinite detention in maximum security fed'l prison on ground he arrived w/out proper entry papers.

• 5/21/81: Shoob, DJ: ordered Pl released on domestic law grounds, but if "forced" to decide int'l law issue, would find Pet's detention violated UDHR Art 9, American Convention on Human Rights Art 7(3), Art 9(1) (PL-97/2.2), at 515 FSupp at 1061 n18.

See PL-392a/41.9

  Detention
PL-75/30.2. Lombardi, Krupkin v. Dow Chemical; In re Agent Orange Product Liability Litigation 506 FSupp 762; 580 FSupp 1242, 597 FSupp 740 (ED NY 1984); 611 FSupp 1223, 1267, 1396; 818 F2d 179, 187 (2d Cir 1987); cert den 108 SCt 2898 (1988)

1978: Vietnam vets, families brought product liability suit against 7 chemical cos for damages due to injuries suffered from exposure to Agent Orange in SE Asia when sprayed by U.S. military. Defs impleaded U.S. Gov't.

• DC granted U.S. motion to dismiss third party complaint. Defs moved for reconsideration of dismissal. 2/16/84: DC: U.S. immune from claims of vets, derivative claims of families; U.S. not immune from independent claims of vets' spouses, children, Fed'l Tort Claims Act (28 USC §1346(b)), Feres-Stencel Doctrine ( 340 US 135; 431 US 666). 5/84: 7 cos agreed to establish $180 million fund for class members. 1984: 300 vets challenged settlement. 1987: DC dism'd: manufacturers immune from suit. 2d Cir aff'd. 6/27/88: USSC decided (PL-325/32.4). 6/30/88: USSC denied cert. 7/6/88: Weinstein, DJ, began process of allocating fund (now $240 million) to 250,000 injured vets, families: $170 million cash benefits to long-term, totally disabled vets, families of deceased vets; $52 million for social service projects benefiting vets, families; $5 million to vets in Australia, N Zealand; $13 million for Pls' attys; admr of distribution plan by Aetna Life Insurance Co.

Phillip E Brown; Stanley M Chesley, 1513 Central Trust Tower, 4th & Vine, Cincinnati, OH 45202; David J Dean, 55 Mineola Blvd, Mineola, NY 11501-4220; Thomas Henderson; Gene Locks; Benton Mussle White; John O'Quinn; Newton B Schwartz; Stephen J Schlegel; James Sparrow, Dir, Vietnam Vets Agent Orange Victims

See PL-164/43.16; PL-396/41.21

  Agent Orange
- 30.3 -
PL-57/30.3. Demjanjuk v. Petrovsky; U.S. v. Demjanjuk 518 FSupp 1362 (ND OH 1981); 680 F2d 32 (6th Cir 1982); cert den 459 US 1036 (1982); 603 FSupp 1463, 1468, 612 FSupp 544, habeas den 612 FSupp 571 (all ND OH 1984, 1985); 776 F2d 571 (6th Cir 1985); habeas den 785 F2d 1114 (DC Cir 1986)

1952: Def-Ukrainian admitted to U.S. under 1948 Displaced Persons Act. 1958: Def became U.S. citizen. 1981: U.S. sought denaturalization of Def based on information he was brutal WWII guard "Ivan the Terrible" at Treblinka, Poland concentration camp. At h'gs, 6 witnesses testified for Gov't; Def claimed mistaken identity.

• Battisti, DJ: ordered denaturalization. U.S. brought deportation proceedings. 1984: Israel sought extradition under 1962 U.S./Israel extradition treaty, claiming jurisdiction to prosecute deportee for crimes committed outside Israeli territory before its independent existence. Deportee filed habeas petition. 1985: Battisti, DJ: int'l law permits nation to try persons accused of acts w/ which it has no territorial nexus when offenses so special in character they make perpetrators enemies of all mankind; therefore any nation that can find perpetrators may try, punish, under principle of universal jurisdiction. 10/31/85: 6th Cir aff'd: treaty covers "mass murder" as well as murder. 1986: DC Cir denied habeas petition. Def extradited to Israel.

Steven Schneebaum, Int'l Human Rights Law Group, amicus

See PL-57a/85.4

  War Crimes
PL-73/30.3. Korematsu v. U.S. 323 US 214 (1944); 584 FSupp 1406 (ND CA 1984)

1942: Pl convicted of being in place excluded to persons of Japanese ancestry: Civilian Exclusion Order No 34 (18 USC §97(a)). 1944: USSC aff'd. 1984: Pl filed extensive petition for writ of coram nobis to vacate conviction: Gov't misconduct: officials of U.S. War Dept altered, destroyed, withheld knowledge of evidence from DoJ, USSC; officials of War Dept, DoJ suppressed evidence re loyalty of Japanese-Americans, alleged commission of espionage; Gov't officials failed to advise USSC of falsity of allegations in final report of Gen'l Dewitt.

• 4/19/84: Patel, DJ: granted petition.

Dale Minami, Lorraine K Banwai, Robert L Rusky, Karen Kai, Michael Wong, Russell Matsumoto, Maniwa & Mabumoto, Steven Bomse, Michael Shepard, Andrea Peterson, Peter Irons; Heller, Ehrman, White & McAuliffe, amicus

See PL-32/32.4; PL-135/30.4; PL-361/50.4

  Japanese-American Internment
PL-581/30.3. Ozonoff v. Berzak 744 FSupp 224 (1st Cir 1984)

1/9/53: Pres Truman issued Exec Order 10422 (22 USC §287), requiring loyalty checks as precondition to employment of U.S.

- 30.4 -
citizens applying to UN, other public int'l orgs. Pl, seeking job w/ World Health Org, sought declaration that: 1) Pres lacked constitutional authority to promulgate Order; 2) terms of Order too vague, broad in violation of 1st Amdt.

• 1984: McNaught, DJ: granted summary judgment for Pl. 9/21/84: 1st Cir aff'd, Breyer, CJ: terms of Order violate 1st Amdt rights to freedom of speech, association. 6/2/86: U.S. notified UN Secretariat security clearances of U.S. citizens employed by int'l orgs would no longer be carried out.

Leonard B Boudin, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, NY, NY

  Loyalty Checks
PL-23/30.4. Frank O'Reilly v. Reagan (ND CA #C-84-20624-WAI)

9/3/84: Def-Reagan/Bush '84 campaign paid De Anza College $6621 to rent stadium for widely-publicized election rally. Students carrying political banners opposing Reagan/Bush, their policies, denied entry to rally; pushed back from Presidential motorcade where people w/ pro-Reagan signs permitted. 10/1/84: Sued Reagan/Bush '84, Santa Clara Cty, U.S. Secret Service, De Anza College: false imprisonment (42 USC §1983).

• 10/18/84: Ingram, DJ: issued preliminary injunction ordering Defs to notify Pls of any appearance in ND CA, authorizing h'g 24 hrs before appearance. 4/4/86: DJ: rally constituted public forum; dismissed Secret Service as Defs, denied Defs' motion for summary judgment. 6/23/87: DJ dism'd Pls' prayer for punitive damages. 2/8/88: Reagan/Bush '84, Cty agreed to pay Pls $39,000 settlement, announce right of people w/ dissident signs to go wherever people w/ supportive signs go.

Constance Carpenter, 131 George St, San Jose, CA; Stan Doty, Jeff Lake, Dan Mayfield, Cynthia Rice

  Election Rally
PL-47/30.4. Santa Cruz VFW Post 5888 v. Veterans of Foreign Wars (CD CA)

Nat'l VFW expelled Santa Cruz VFW chapter for adopting policy statement opposing U.S. intervention in Central America. Chapter sued for reinstatement.

• 6/15/85: settled; chapter agreed not to publicly oppose nat'l VFW positions in return for reinstatement.

  Central America
PL-135/30.4. Hirabayashi v. U.S. 320 US 81 (1943); 627 FSupp 1445 (WD WA 1986); 828 F2d 591 (9th Cir 1987)

During WWII Pet refused to observe curfew regs, removal orders imposed on Japanese-Americans. Trial J instructed jury to convict Pet of 2 misdemeanor violations of military orders; sentence: 8 mths jail. 1943: USSC aff'd. 1/83: Pet filed Petition for Writ of Error Coram Nobis alleging Gov't failed to review docs by Cong Commn on Wartime Relocation and Internment of Civilians, which found no

- 30.5 -
military necessity to intern Japanese-Americans in concentration camps; Gov't suppressed, altered evidence placed before ct which showed curfew, exclusion orders racially based in original report by gen'l who issued order long suppressed, violating Pet's constitutional right to equal treatment, fair trial. Pet asked Ct to vacate criminal convictions, dismiss indictment, enter findings of reasons.

• 5/18/84: Voorhees, DJ: denied Govt's motion to dismiss. 6/17/85: Evidentiary h'g. 2/10/86: Voorhees, DJ: Gov't engaged in misconduct in justifying forced removal; vacated Pet's conviction for failure to report to military authorities for relocation, upheld conviction for curfew violation. Pet, Def appealed. 9/24/87: 9th Cir, Shroeder, CJ: vacated curfew conviction.

Rodney Kawakami, Camden Hall, Benson Wong, Kathryn Bannai, Michael Leong, Craig Kobayashi, Daniel Ichinaga, Arthur Barnett

See PL-32/32.4; PL-73/30.3; PL-361/50.4

  Japanese-American Internment
PL-300/30.5. New York Land Co v. Philippines 634 FSupp 279 (SD NY 1986); aff'd as 806 F2d 344 (2d Cir 1986); 640 FSupp 737 (1987); cert den 481 US 1048 (1987)

9/21/72: Philippines Pres Marcos declared martial law near end of elected term. 1972-86: Marcos directed systematic appropriation of public funds. 2/25/86: Marcos fled to HI. Philippines Gov't sued to prevent Marcos/agents from transferring stolen property held anywhere in world.

• 5/2/86: Leval, DJ, issued preliminary injunction against Defs: act of state doctrine inapplicable to personal acts of conversion not done in name of foreign sovereign. 11/26/86: 2d Cir aff'd, Oakes, CJ: act of state doctrine did not prohibit adjudication of private acts by Marcos, who lost protection when he lost power. 5/18/87: USSC denied cert.

Morton Stavis, Peter Weiss, CCR, 666 Broadway, NY, NY 10012

See PL-298/30.8; PL-299/31.1; PL-375/23.18; PL-393/30.9

  Ferdinand Marcos
PL-110/30.5. Beulah Mae Donald v. United Klans of America (SD AL Civ #84-0725-8H)

1981: Mobile jury hung in trial of black man for murder of white policeman; Klansmen randomly caught, hanged, Michael Donald. 1983: After 2 investigations, 2 members of Def (largest Klan org) tried; convicted: 1-murder, 1 (Tiger Knowles) violating civil rights. 1984: Pl-victim's mother sued on theory of agency: murderers carried out policy of Def, Def's Imperial Wizard.

• 2/12/87: At 4-day trial, ex-Klan members testified leaders directed harassment, killing blacks; Knowles said acted as Klansman, asked jury to find for Pl. All-white jury awarded Pl $7 million. 5/87: Pl received deed to Def's headquarters; sought further assets.

Morris Dees, Southern Poverty Law Center, 400 Washington Ave, PO Box 2087, Montgomery, AL 36102-2087; Michael Figures, State Sen

  Hate Crimes
- 30.6 -
PL-259/30.6. U.S. v. Palestine Liberation Organization (UN Mission Closure)

690 FSupp 1243 (SD NY 1962 ELP)

1974: PLO opened observer mission in NY City at invitation of UNGA. 12/16/87: Cong passed Anti-Terrorism Act (ATA) (22 USC §5201) barring PLO from receiving, spending funds, operating offices in U.S. 3/21/88: ATA took effect; U.S. sued for injunction to close PLO mission at UN.

• 6/8/88: DJ permitted Carl August Fleischauer-UN Undersec'y-Gen'l, Legal Counsel, to address Ct at outset. 6/29/88: Palmieri, DJ dism'd suit: U.S. may prohibit people from working officially for PLO in U.S. except for UN mission under UN Headquarters Agreement, UNGA Res 169 (II), 11 UNTS 11, No 147 (1947) 61 Stat 756, TIAS No 1976, authorized by SJ Res 144, 80th Cong, 1st Sess, Pub Law 80-357, in 22 USC §287 note (1982); Ct may not direct U.S. to submit to arbitration under Agreement §21, due to political questions doctrine; later enacted stat supersedes treaty only where irreconcilable, Cong clearly intended to supersede. 8/30/88: U.S. announced it will not appeal.

PLO-Ramsey Clark, Lawrence W Schilling; Mansour-Leonard Boudin, Michael Krinsky; amicus: UN-Keith Highet; NYC Bar Assn-Sheldon Oliensis

See PL-260/30.6; PL-309/5.3; PL-318/43.14

  Palestinians
PL-260/30.6. Mendelsohn v. Meese (Palestine Information Office)

(SD NY #88 Civ 2005 ELP)

12/16/87: Cong passed Anti-Terrorism Act (ATA) (22 USC §§5201-5203): as of 3/21/88, Palestine Liberation Org barred from receiving, spending funds, operating offices in U.S. 3/23/88: 65 U.S. citizens, orgs sued for declaratory judgment: ATA violates 1st Amdt free speech, association, bill of attainder prohibition of U.S. Const Art I §9(3).

• 6/29/88: Palmieri, DJ, upheld constitutionality of ATA by narrow interpretation: ATA restricts transfer of funds by PLO to 2 Pls, does not prohibit 3rd Pl from opening, maintaining information office so long as office accepts no money from, does not purport to act officially for PLO. 8/30/88: U.S. announced it will not appeal.

Leonard Boudin, Michael Krinsky, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, 740 Broadway, NY, NY 10003

See PL-259/30.6; PL-309/5.3; PL-318/43.14

  Palestinians
PL-262/30.6. In re Requested Extradition of Suárez-Mason 672 FSupp 1531 (ND CA 1987); 694 FSupp 676 (1988)

3/24/76: Argentine military took power in coup. 1976-79: Military Gov't conducted "dirty war" against "subversive thought." 1983: Civilian Gov't took power in Argentina: 9-member military junta claimed full responsibility for conduct of "dirty war"; arrested, prosecuted. 3/84: Sup Council summoned Def-former military commander, Buenos Aires Zone, not member of junta; Def fled to U.S. 1/24/87: Def found in

- 30.7 -
Foster City, arrested for extradition to Argentina: 43 murder, 24 kidnapping counts, forgery of exit visa. Def: not extraditable under "political offense exception." 4/5/88: Prof Frank Newman filed amicus brief: political offense exception could not be applied to former Gov't officials who committed crimes against humanity under Nuremberg Charter. Def filed habeas petition.

• 4/27/88: Jensen, DJ: denied habeas petition; granted extradition on 39 murder counts, forgery; kidnapping barred by U.S. stat of limitations; "military offense" exception in extradition treaty inapplicable to murder; political offense exception inapplicable to conduct of Gov't officials suppressing rebellion; alleged murders not incident to military uprising, would not fall w/in exception. 5/7/88: Def extradited.

U.S. Atty Mark N Zanides, San Francisco, CA

See PL-181/30.7; PL-285/30.8; PL-286/30.7; PL-552/70.5

  Argentine Junta
PL-286/30.7. Martínez-Baca v. Suárez-Mason (ND CA #C-87-2057-SC, Slip Op)

1976-80: During "dirty war," Argentine military junta held, tortured Pl-union atty in secret military prisons. 1/24/87: U.S. arrested Def-former Buenos Aires military commander: extradition for murder. 4/30/87: Pl sued for damages under Alien Tort Claims Act (28 USC §1350).

• 3/15/88: Conti, DJ: entered default judgment against Def. 3/28/88: At award h'g, DJ heard expert testimony: Rabbi Marshall Meyer, 16-yr resident of Argentina; Richard Mollica, psychiatrist, re "torture victim's syndrome." 4/25/88: DJ awarded Pl full amount requested: $21 million damages. Pl seeking to uncover Def's assets.

David Cole, Georgetown Law Center, 600 New Jersey Ave NW, Washington, DC 20001; Peter Weiss, Michael Ratner, CCR; Samuel Issacharoff; William Gordon; Kathy Bagdonas Jordaneth, Paul Friedman, Joanne Hoeper, Tom Long, Morrison & Foerster

See PL-181/30.7; PL-262/30.6, PL-552/70.5; PL-285/30.8

  Argentine Junta
PL-181/30.7. Quiros de Rapaport v. Suárez-Mason (ND CA Civ #C87-2266-JPV)

1977-78: 3 families tortured to death or disappeared while in custody of Def-Commander, Argentina's 1st Army Corps. 1983: Democracy restored in Argentina; Def fled to U.S. 1/24/87: Def arrested in Foster City, held in San Francisco Cty jail pending determination of extradition request. 5/6/87: Pls-relatives of 3 families, sued for damages under Alien Tort Claims Act (28 USC §1350). 5/7/88: Def extradited.

• Vukasin, DJ: awarded Pls $60 million damages. Tracking of Def's assets proceeding.

Human Rights Advocates, Box 5675, Berkeley, CA 94705

See PL-262/30.6, PL-552/70.5; PL-285/30.8; PL-286/30.7

  Argentine Junta
- 30.8 -
PL-285/30.8. Alfredo Fortí v. Suárez-Mason 672 FSupp 1531 (ND CA 1987); 694 FSupp 707 (1988)

2/18/77: Argentine military seized Pl, Pl's mother, 4 brothers from airplane at Buenos Aires Int'l Airport. 2/23/77: Military released Pl, brothers; mother "disappeared". 1983: Civilian Gov't restored; Argentina charged Def-former Buenos Aires military commander: murder, kidnapping, forgery. 1/24/87: U.S. arrested Def. Pl sued for damages under Alien Tort Claims Act (28 USC §1350).

• 10/6/87: Jensen, DJ, granted Def's motion to dismiss: Alien Tort Claims Act provides cause action; law of nations does not extend only to relations between sovereign states; endorsed 630 F2d 876 (1980) (PL-19/31.1); Pl failed to establish int'l human rights norm against "disappearance", "cruel, inhuman or degrading treatment." 11/18/87: Pl filed Motion for Reconsideration w/ affidavits from Richard Falk, other int'l law scholars. 7/6/88: Jensen, DJ: Pls may file claims for disappearance, torture, not for "cruel, inhuman, or degrading treatment." 4/90: DJ awarded Pl $2 million damages.

Kathy Bagdonas Jordaneth, Paul T Friedman, Joanne Hoeper, Morrison & Foerster, 345 California St, San Francisco, CA 94104; Samuel Issacharoff, William C Gordon; David Cole, Peter Weiss, Michael Ratner, CCR, 666 Broadway, 7th Fl, NY, NY 10012

See PL-181/30.7; PL-262/30.6, PL-552/70.5; PL-286/30.7

  Argentine Junta
PL-234a/30.8. Dawson v. Brian Willson (ND CA #C880328 RFP 1988)

9/1/87: U.S. Navy train bearing munitions for contras, Salvadoran army ran over, maimed Def-Willson at Concord Naval Weapons Station. 1/11/88: Train crew sued Willson, two other protesters in Super Ct: conspiracy to "directly affect physical actions and emotional responses" of train crew. Pls dropped state suit, filed same complaint in fed'l Ct.

• 4/90: Trial date. Case dism'd.

Doron Weinberg, Larson & Weinberg, 523 Octavia St, San Francisco, CA 94102

See PL-234/41.2; PL-287/57.1

  Contra Aid
PL-298/30.8. Philippines v. Marcos 818 F2d 1473 (9th Cir 1987); 832 F2d 1110 (1987); 862 F2d 1355 (1988); cert den 109 SCt 1933 (1989); (Honolulu Ct 1992)

9/21/72: Def-Philippines Pres Marcos declared martial law near end of elected term. 1972-86: Def directed systematic appropriation of public funds. 2/25/86: Def fled to HI. Philippines Gov't sued in U.S. Ct under RICO to prevent Def from transferring property stolen from Gov't.

• Pfaelzer, DJ: issued preliminary injunction for Pls. 7/8/86: Fong, DJ: denied motion to dismiss. 2 cases consolidated on appeal. 6/4/87: 9th Cir vacated, Kozinski, CJ: action barred by act of state doctrine, political question doctrine, or both. Nelson, CJ, diss. 11/16/87: 9th Cir panel ordered reh'g. 12/1/88: 9th Cir, en banc, aff'd DC, Noonan, CJ:

- 30.9 -
suit not barred by act of state, political question doctrines. 1989: USSC denied cert. 9/92: Honolulu jury awarded liability verdict; damages pending size, location of assets of Marcos Estate.

Ronald L Olson, Richard B Kendall, Bradley S Phillips

See PL-299/31.1; PL-300/30.5; PL-375/23.18; PL-393/30.9

  Ferdinand Marcos
PL-428/30.9. Helen Liu v. Taiwan 642 FSupp 297 (ND CA 1986); 892 F2d 1419 (9th Cir 1989); cert den 111 SCt 27 (1990)

10/15/84: Henry Liu-historian/journalist critical of Taiwan Gov't assassinated in CA. 1985: Taiwan Military Ct convicted Defense Intelligence Bureau Dir Wong Hsi-Ling: ordering assassination; sentence: life imprisonment. Pl-widow sued Def under RICO (18 USC §1985(3)), Civil Rights Act (42 USC §§1985(3), 1986): wrongful death, emotional distress.

• 8/11/86: Lynch, DJ, denied motion to dismiss, later granted: act of state doctrine precludes Def's liability under CA law. 12/29/89: 9th Cir rev'd, remanded, Boochever, CJ: 1) murder occurred in CA: CA law of respondeat superior applies; 2) Dir acted to benefit Def: Def liable under CA law, Pl established subject matter jurisdiction under FSIA (28 USC §§1330(a), 1604, 2680(a)); 3) suit not barred by act of state doctrine. 9/28/90: USSC denied cert. 10/25/90: case settled for undisclosed sum; Def admitted no wrongdoing. 1/21/91: Taiwan released Wong under clemency law.

Gerard E Harper, Paul, Weiss, Rifkind, Wharton & Garrison, 1285 Ave of Americas, NY, NY 10019-6064; Jerome Garchik, 57 Post, San Francisco, CA 94104

  Government Responsibility
PL-398/30.9. Joseph Santauzzi v. Pringle (SD CA 1988)

11/88: Def-GOP chair Fuentes hired security guards to stand at polling places on election day. 5 Hispanic voters alleged guards handled ballots (fed'l violation), carried signs warning undocumented immigrants: illegal to vote. Pls sued successful GOP candidate Pringle, Fuentes: harassment, intimidation.

• 1989: Defs Saddleback Security Co, Cty Registrar agreed to pay Pls $80,000. 12/28/89: Defs Pringle, Fuentes agreed to pay Pls $400,000 damages, denied wrongdoing.

Joseph Remcho, 155 Montgomery St, San Francisco, CA 94109

  Ethnic Harassment
PL-393/30.9. Estate of Silme Domingo v. Philippines (WD WA No C82-1055 VR)

6/1/81: Dictado, Ramil, Guloy, Domingues entered Union headquarters, assassinated U.S. citizens Domingo-sec'y-treasurer, Viernes-dispatcher, ILWU Cannery Workers Local 37, member of 2 anti-Marcos orgs. Domingues murdered. WA Super Ct tried 3 Defs: murder; convicted. 1982: Pls sued Defs Ferdinand/Imelda Marcos,

- 30.10 -
Malabed, Baruso, Philippines for $30 million: wrongful death: Marcos ran intelligence operation against political opponents in U.S. Defs either conspired against Pls or their negligent conduct was proximate cause of Pls' injuries. Extensive pretrial discovery. 9/89: Ferdinand Marcos died.

• 11/20/89: Rothstein, DJ, jury heard Pls' expert witnesses: Philippines Cong Bonifacio Gillego, Prof Richard Falk, ex-CIA agent Ralph McGehee. 1/15/90: Jury held for Pls. Rothstein, DJ, assessed damages: $15 million against Marcoses, $8.5 million against other Defs. 1991: Some assets uncovered; some damages/atty fees being paid.

Michael E Withey, Jeffrey P Robinson, Schroeter, Goldmark & Bender, 540 Central Bldg, 98104; James A Douglas, Gibbs, Douglas, Theiler & Drachler, 1613 Smith Tower, 98104; John Caughlan, 1508 McGilvra Blvd E, 98112; Elizabeth Schott 1027-31st Ave E, 98112; all Seattle, WA

See PL-298/30.8; PL-299/31.1; PL-300/30.5; PL-375/23.18

  Ferdinand Marcos
PL-572/30.10. Braun v. Soldier of Fortune Magazine 749 FSupp 1083 (MD AL, N Div 1990); 757 FSupp 1325 (1991); 968 F2d 1110 (11th Cir 1992)

1985: Def-magazine ran classified ad offering "gun-for-hire" for 10 mths. Person placing ad murdered Richard Braun. 3/31/88: Pls-Braun's sons sued for damages: personal injuries, father's wrongful death.

• 12/7/90: Jury awarded Pls $12.4 million. 1/23/91: Hobbs, DJ: jury's award excessive; reduced to $4.4 million. 8/13/92: 11th Cir aff'd, Anderson, CJ: Def negligent to place ad which put public in substantive danger; no constitutional interest to protect public illegal activity.

Perry Hooper, 456 S Court St, 36104; Stephen Glassroth, L Gilbert Kendrick, 615 S McDonough St, 36104; John Cason, 4191 Carmichael Rd, 36106; all Montgomery, AL

  Anti-Terrorism
PL-815/30.10. Vietnamese Fishermen's Assn v. Knights of Ku Klux Klan 518 FSupp 993 (SD TX 1981); 543 FSupp 198 (1982)

Defs harassed, intimidated Pls while they were fishing in Galveston Bay, Texas. 1981: Pl sued: infringement on legal right to fish in bay.

• 1981: Dist Ct enjoined Def from any further harassment. 1982: Dist Ct further enjoined Def from operating paramilitary army in Texas.

Southern Poverty Law Center, PO Box 2087, Montgomery, AL 36102

  Hate Crimes
PL-693/30.10. Hosea Williams v. Southern White Knights, Knights of Ku Klux Klan (ND GA #1:87-cv-565-CAM, 1988); (11th Cir #89-8092, 1989); Klanwatch Intelligence Report (4/91, 6/93)

1/17/87: Pls scheduled, held "Brotherhood March" to commemorate birth of Martin Luther King, Jr to promote racial harmony in

- 30.11 -
Forsyth Cty, GA; Defs-leaders of 2 KKK groups/other white supremacist groups met to plan strategy to disrupt march; Defs climbed fences despite police efforts, threw rocks, bottles, shouted obscenities, racial epithets; marchers suffered severe physical, emotional injuries. 1988: Pls filed suit: conspiracy to deprive Pls of civil rights (42 USC §1985(3)).

• 10/25/88: After trial, jury awarded Pls compensatory, punitive damages: $940,000. 10/27/89: 11th Cir aff'd, Henderson, CJ: evidence showed Defs plotted to disrupt, stop peaceful civil rights marchers by violent means; jury award not excessive, disproportionate; jury may award punitive damages in civil rights action if determined that Def motivated by evil intentions, actions were recklessly, callously indifferent to fed'l protected rights. 1989-93: Pls sought to uncover Defs' assets. 5/20/93: Invisible Empire, KKK agreed to go out of business, pay Pl $37,500; Southern White Knights to pay Pl $11,000 damages; case settled.

Joe Roy, Klanwatch Project, PO Box 548, 36101-0548; Southern Poverty Law Center, PO Box 2087, 36102; all Montgomery, AL

  Hate Crimes
PL-725/30.11. UA Local 38 Convalescent Trust Fund v. Carole Braden (ND CA 1989); 967 F2d 584 (9th Cir 1992) (not for publication); cert den 113 SCt 656 (1993)

1987: Pl-waitresses filed sex discrimination, retaliation suit against Konocti Harbor Inn, owned/operated by Def-Union Trust Fund: management moved Pls from dining room to less lucrative jobs in coffee shop, said they wanted only male waiters in dining room, committed direct assault against one Pl.

• 11/89: Legge, DJ: granted Pls' summary judgment motion on retaliation under CA Govt C §12940, right-to-sue letter from CA Fair Employment & Housing Dept. Prior to trial, DJ granted Pls' directed verdict motion on Def's liability for unlawful sex discrimination. 1990: After trial, jury awarded waitresses $400,000 back pay, damages, $800,000 atty fees. 1/17/92: 9th Cir aff'd, Chambers, Tang, Pregerson, JJ: DC did not abuse discretion by retaining jurisdiction over case, suit filed timely, granting of summary judgments acceptable: Defs did not adequately respond to discovery, did not make legally adequate defense to summary judgment motion, jury damages awards reasonable based on evidence. 12/7/92: USSC denied cert. 1/7/93: Def-Plumbers Union closed Inn, laid off 300 workers.

  Sex Discrimination
PL-697/30.11. Brown v. Invisible Empire, Knights of Ku Klux Klan (ND AL #80-HM-1449-S, 1989)

Def attacked Pl-Southern Christian Leadership Conference marchers in Decatur, AL; 10 members of Def-KKK arrested, convicted. Pls sued for damages.

• 1989: DJ approved consent decree: Def to stop paramilitary activities, pay Pl monetary damages, take mandatory race relations seminar taught by Rev Joseph Lowery.

Southern Poverty Law Center, 400 Washington Ave, PO Box 2087, Montgomery, AL 36102-2087

  Hate Crimes
- 30.12 -
PL-687/30.12. Alicia Castrejón, EEOC v. Tortillería "La Mejor" (ED CA CV-F-87-505, 1991); 68 Interpreter Releases, Foreign Language Information Service 248 (1991)

1987: Pl-undocumented worker took pregnancy leave; Def refused reinstatement as promised. Pl sued Def: sex discrimination, sought reinstatement, back pay. Def argued: undocumented workers not entitled to protection under fed'l civil rights laws since undocumented workers prohibited employment under 1986 IRCA (8 USC §1254 (b)(3)).

• 2/20/91: Coyle, DJ: undocumented workers, while seeking amnesty, have right to file discrimination lawsuits against employers under Title VII, 1964 Civil Rights Act (42 USC §2000e). 10/21/91: Case settled, terms confidential.

María Blanco, Equal Rights Advocates, 1663 Mission St, 94103; Bill Tamayo, Asian Law Caucus, 468 Bush St, 94108; both San Francisco, CA; Manual Romero, Mexican American Legal Defense & Education Fund

  Sex Discrimination
PL-713/30.12. Tomko v. Emery Worldwide & Consolidated Freightways (WD PA #91-1449, 1991)

4/91: Def laid off, w/out warning, over 50 non-union employees at 2 Pittsburgh, PA locations as part of simultaneous nationwide termination of over 1,000 non-union Emery employees. Def immediately began using independent contractors. Pls sued: violation of Worker Adjustment Retraining Notification Act (WARN), 29 USC §2104. Def claimed: firing less than 50 employees at single site of employment conforms w/ WARN Act requirements.

• 6/3/92: Bloch, DJ: certified Pl class. 12/18/92: Bloch, DJ, memo opinion: Pls entitled to jury trial on WARN claims. 5/93: Def settled for undisclosed amount, neither party allowed to disclose terms.

Jay Hornack, Cindy Akers, Leslie Grey, NLG/Sugar Law Center, 2915 Cadillac Tower, Detroit, MI 48226

  Workers' Rights
PL-712/30.12. Auerbach v. Financial News Network, NBC Cable (Adv Proc #92-9122A)

1991: Def-CNBC bought FNN, laid off 325 Pls-employees w/out warning at 6 locations throughout U.S. Pls filed Worker Adjustment Retraining Notification Act (WARN) claims (29 USC §101). Def settled w/ studio offices in NY, Los Angeles, refused to acknowledge responsibility for sales office, 3 branch offices. Pls pressed suit.

• 5/93: Conrad, Bankruptcy J: Def settled for undisclosed amount.

Richard Levy, Elizabeth Werby, Gwynne Wilcox, NLG, Sugar Law Center, 2915 Cadillac Tower, Detroit, MI 48226

  Workers' Rights
PL-686/30.12. American-Arab Anti-Discrimination Comm v. Pan Am (DC NY 1991)

3/1/91: Pls sued Def: harassment, discrimination against Arabs, Arab-Americans seeking to fly w/ Def on int'l, domestic flights by

- 30.13 -
singling them out for questioning, luggage searches. 4/4/91: Pls filed interrogatories, request for production of docs re details of security policies. 4/12/91: Def answered, denied allegations.

• 1993: Parties settled: Def agreed to pay Pl-Comm, Pl-Mohammed Ghonoudian, ACLU; Pls to drop suit against bankrupt airline.

American-Arab Anti-Discrimination Comm, 4201 Connecticut Ave NW Ste 500, Washington, DC 20008; amicus ACLU, 132 W 43rd St, 2d Fl, NY, NY 10036

  Nationality Discrimination
PL-812/30.13. Lee v. California Dept of Transportation (ND CA #C-92-3131 SBA, 1992)

3/5/92: Oakland Police Dept (OPD) arrested Pl-homeless person: trespass; confiscated Pl's personal belongings (prescription eyeglasses, medication, food stamps, clothing), intentionally discarded into refuse truck; forcefully stopped Pl from retrieving glasses. 4/92: Pl, other homeless persons, sued Defs: injunctive relief, damages: violation of due process (14th Amdt), unreasonable search and seizure (4th Amdt), conversion, CA Civ C §2080.

• 7/93: Defs settled w/ all Pls: OPD will not destroy, assist in destruction of arrestees' personal property; $13,000 for Pls' monetary damages; parties each bear own costs, expenses. Armstrong, DJ: entered final judgment for injunctive relief.

James M Finberg, William M Audet, Embarcadero Center W, 275 Battery St, 30th Fl, San Francisco, CA 94111; Stephen Ronfeldt, Legal Aid Society of Alameda Cty, 1440 Broadway, Ste 700, Oakland, CA 94612; Osha Neumann, 1840 Woolsey St, Berkeley, CA 94703

  Homeless
- 31.1 -
b. CASES WON ON APPEAL

PL-19/31.1. Dolly Filártiga v. Peña-Irala 630 F2d 876 (2d Cir 1980); U.S. amicus brief 19 ILM 585 (1980)

1976: Joelito Filártiga, 17, died of heart failure after 4 hours torture in Paraguay. Sister, father-noted critic of Stroessner regime sued Def-Paraguayan citizen residing illegally in U.S. for torture/murder of son.

• Nickerson, DJ: dism'd. 6/30/80: 2d Cir rev'd, Kaufman, CJ: torture cognizable in U.S. cts although committed abroad ( (PL-370/2.1), customary int'l law). U.S. Dept of State, DoJ submitted amicus memo: int'l law part of U.S. law, including certain fundamental human rights. 1/10/84: In trial after Def deported by INS, DJ awarded each Pl $5 million punitive, $400,000 total compensatory damages.

Donald L Doernberg, Peter Weiss, Rhonda Copelon, John Corwin, CCR; U.S. amicus: Robert B Owen, William T Lake, Stefan A Riesenfeld, Charles Runyon, Linda A Baumann, Dept of State; Drew S Days III, John E Huerta, Brian K Lansterg, Irwin Gornstei, DoJ

  Paraguay Regime
PL-299/31.1. In re Estate of Ferdinand Marcos Human Rights Litigation; Agapita Trajano v. Marcos; Sisón v. Marcos (DC HI 1986); (ND CA 1987); 878 F2d 1438 (9th Cir 1989 (unpublished)); (DC HI #MDL No 840, Civ #86-0207); 978 F2d 493 (9th Cir 1992), 32 ILM 106 (1993)

9/21/72: Philippines Pres Marcos declared martial law near end of elected term. 1972-86: Marcos directed systematic repression of political opposition in Philippines. 2/25/86: Marcos fled to HI. 3/86: Philippine citizens, expatriates, filed 3 suits in HI, 2 in CA: wrongful death, false imprisonment, torture (UN 23 ILM 1027 (1984), PL-101/2.3), intentional infliction of emotional distress, violation of int'l law (Alien Tort Claims Act, 28 USC §1350): act of state doctrine inapplicable to lawless acts contrary to public interest, furthering Marcos' personal power, where established int'l law principles prevail.

• 7/18/86: Fong, DJ, dism'd HI suits: act of state doctrine. 1/22/87: Williams, DJ, dism'd CA suits: act of state doctrine. 10/87: U.S. Gov't filed amicus brief on behalf of Def: int'l human rights cases should not be heard in U.S. fed'l cts (reversing Govt's position in PL-19/31.1). 7/10/89: 9th Cir rev'd, remanded. 1990: DJ entered default judgment against Def. 10/27/90: Sen ratified (136 Cong Rec S17486, PL-623/50.2). 5/13/91: Real, DJ: torture, death, execution of Archimedes Trajano constituted gross violation of fundamental human rights — tort under law of nations, awarded Pl-estate of deceased $411,000 damages for lost earnings, moral damages (physical suffering, mental anguish, wrongful death, execution); awarded Pl-mother of deceased $1,250,000 for mental anguish; $250,000 atty fees; $2.5 million punitive damages (Philippine Civ C Arts 2229, 2231). 1991: Cong passed Torture Victim Protection Act, 106 Stat 73 (1992). 10/21/92: 9th Cir aff'd, Rymer, CJ: 1) DC had subject matter jurisdiction under 28 USC §1350; FSIA, 28 USC §1330 not applicable; 2) DoJ "flip" on "not a

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definitive statement" but "by different administrations"; 3) Pls' suit is as alien for tort of wrongful death committed by military intelligence officials through torture prohibited by law of nations.

Sherry Broder, 345 Queen St Ste 800; Lillian Ramirez Uy, 1850 Pioneer Plaza, 900 Fort St Mall; Peter C Labrador, 33 S King St #402; all Honolulu, HI 96813; Jon Van Dyke, 41-911 Laumilo St, Waimanalo, HI 96795; David Cole, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Jules Lobel, U of Pittsburgh Law School, 3900 Forbes Ave, Pittsburgh, PA 15260; Harold Koh, Yale Law School; Paul Hoffman, ACLU, 633 S Shatto Pl, Los Angeles, CA 90005

See PL-298/30.8; PL-300/30.5; PL-375/23.18; PL-393/30.9

  Ferdinand Marcos
PL-690/31.2. Iron Cloud v. Sullivan, Sec'y, Health & Human Services 984 F2d 241 (8th Cir 1993)

2/92: Pl sought injunction to stop testing of unlicensed experimental Hepatitis A vaccine on Native American children/infants on reservations w/out informed consent of parents: violation of int'l human rights law, U.S. Const, fed'l regs re medical experimentation on human subjects, U.S.-Oglala treaty obligations.

• Battey, DJ: denied injunction. 1/93: 8th Cir, Bowman, CJ: appeal moot: gov't suspended testing at Standing Rock, Pine Ridge reservations.

Matthew J Chachere, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Bruce Ellison, Rapid City, IA

  Native Americans/Human Experimentation
- 32.1 -
c. CASES WITH SUPREME COURT OPINIONS

PL-591/32.1. Morgan v. Katzenbach 247 FSupp 196 (DC DC 1965); 384 US 641 (1966)

1965: Cong passed Voting Rights Act, §4(e): no person who successfully completed 6th grade in Puerto Rican school in which predominant language was not English shall be denied right to vote in any election because of inability to pass English literacy test. Pls-NY City voters sought declaratory judgment, injunction restraining compliance w/ Act: unconstitutional for prohibiting enforcement of NY election laws requiring ability to read, write English as condition of voting (NY Const Art 2, §1, Election Law NY §§150, 168).

• 11/15/65: Holtzoff, J: granted declaratory, injunctive relief. Defs appealed directly to USSC. 6/13/66: USSC rev'd (7-2), Brennan, J: application of Act to prohibit enforcement of NY literacy requirement was proper exercise of powers granted to Cong by enforcement section of 14th Amdt, U.S. Const supremacy clause.

Alfred Avins, Memphis, TN

  Elections
PL-83/32.1. Runyon v. McCrary 363 FSupp 1200 (ED VA); 515 F2d 1082 (4th Cir); 427 US 160 (1976)

Pls filed suit against private schools, admrs: Pls' children excluded from private schools solely on basis of race; deprivation of civil rights.

• DJ found for Pls; claim for damages barred by limitations. 4th Cir aff'd, denied atty fees to Pls. 6/25/76: USSC aff'd (7-2), Stewart, J: Civil Rights Act provides all persons under U.S. jurisdiction shall have equal rights to make, enforce contracts; applying stat to private schools does not violate rights to free association, privacy under U.S. Const, parents' right to direct children's education. (White, Rehnquist, JJ, diss).

  Racial Discrimination
PL-615/32.1. U.S. v. Washington; Washington State Commercial Passenger Fishing Vessel Assn v. Washington; Puget Sound Gillnetters Assn v. Washington 384 FSupp 312 (WD WA 1974); 520 F2d 676 (9th Cir 1975); cert den 423 US 1086 (1976); 87 WA2d 417 (WA Sup Ct 1976); 88 WA2d 677 (WA Sup Ct 1977); 89 WA2d 276 (1977); 443 US 658 (1979); 92 WA2d 939 (1979)

1854-55: U.S., various Indian tribes signed treaties protecting tribal fishing rights. 9/70: U.S., on own behalf, as trustee for 7 tribes, sued WA: sought interpretation of treaties, injunction requiring state to protect Indians' share of fish from non-tribal fishers. 7 additional tribes, commercial/sports fishing orgs intervened.

• 2/12/74: Boldt, DJ: state could regulate fishing rights for conservation only, Indians entitled to ½ of fish passing through tribal grounds. 6/4/75: 9th Cir, Choy, CJ, aff'd, remanded for continuing jurisdiction. Pl-Commercial Fishing Assn sued state in state ct: sought declaratory judgment that fishing regs promulgated in compliance w/ fed'l order invalid. Super Ct, Alexander, J: regs invalid. 8/12/76: WA Sup Ct dism'd (5-4), Rosellini, J. Gillnetters Assn sued, seeking writ of mandamus requiring state to restrict regs to conservation,

- 32.2 -
treat all fisherman equally. 6/9/77: WA Sup Ct, Rossellini, J, agreed: fed'l DC cannot require state Fisheries Dept to act beyond its statutory authority. 11/23/77: WA Sup Ct, on reh'g, (7-2), Rossellini, J: granting ½ of fish to Indians violated equal protection. 1977-78: DC entered series of orders allowing it to directly supervise state Fisheries to preserve Indians' treaty fishing rights. 4/24/78: 9th Cir, Goodwin, CJ: upheld DC power to take direct action, enjoin persons not party to proceedings. 7/2/79: USSC (6-3), Stevens, J: DC had power to undertake remedial measures to ensure compliance w/ ct order; under supremacy clause, state Fisheries Dept may be ordered to promulgate regs in accordance w/ ct order even if state law prohibits it. 11/30/79: WA Sup Ct, on remand, Horowitz, J: regs necessary to run fishery consistent w/ Indian rights could be promulgated by state.

  Native American Rights
PL-105/32.2. Doe v. Plyler 628 F2d 448 (5th Cir 1980); 102 SCt 2382 (1982)

5/75: TX legislature passed Education C Ann §21.031 withholding from local school dists any state funds for education of, to deny enrollment to children not legally admitted to U.S. 9/77: Mexican children residing in U.S. filed class action seeking injunctive, declaratory relief against exclusion from public schools.

• 1977: DC enjoined Def from denying free education to Pl class. 1980: DC: illegal aliens entitled to 14th Amdt equal protection. 10/20/80: 5th Cir: OAS Charter Art 47 was partial evidence of U.S. Govt's commitment to expanding educational opportunities for all children. 6/15/82: USSC (5-4): §21.031 violates 14th Amdt equal protection, state's concern to save money by excluding aliens from schools not compelling interest.

Peter D Roos, Larry Daves, Vilma S Martínez

See PL-105a/32.2

  Immigrants' Rights
PL-105a/32.2. In re Alien Children Education Litigation 501 FSupp 544 (SD TX 1980); 452 US 937 (1981)

• Consolidated w/ PL-105/32.2.

Peter A Schey, Al Campos, Larry Mealer, Jane Swanson

  Immigrants' Rights
PL-582/32.2. Allied Plywood v. Int'l Longshoremen's Assn, AFL-CIO; Walsh v. ILA 488 FSupp 524 (DC MA 1980); 492 FSupp 334 (1980); 640 F2d 1368 (1st Cir 1981); 257 NLRB 151 (1981); 456 US 212 (1982); 554 FSupp 32 (DC MA 1982); (DC MA Civ A No 80-584-S 1986)

1/9/80-6/2/81: Gleason-ILA Pres decided to boycott incoming shipments of Soviet goods as protest against Soviet troop activities in Afghanistan. Pl-importer of plywood, hardboard from USSR, claimed damages for refusal of members of Def's locals to unload material during boycott. 3/31/80: Pl sued: Def's actions violated: 1) NLRA prohibition against secondary boycotts, 29 USC §158(b)(4), for which Pl had private right of action under 29 USC §187; 2)

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Sherman Act, 15 USC §1; 3) constituted tortious interference w/ Pl's business relationships in violation of admiralty law. Walsh, NLRB Reg Dir, sought preliminary injunction under 29 USC §160(1). Cases consolidated. Defs moved to dismiss.

• 6/17/80: Skinner, DJ, dism'd: Pl stated no cause of action. 1/6/81: 1st Cir, Campbell, CJ, rev'd. 4/20/82: USSC aff'd (9-0): Pl's complaint stated cause of action under NLRA: Def's actions based solely on political motives, however commendable, effectively placed heavy burden on neutral employers, secondary boycott provisions designed to prevent this type of burden; Pl's allegation of violation of NLRA does not infringe 1st Amdt rights of Def; conduct designed not to communicate but to coerce merits little consideration under 1st Amdt. Pl sued in DC MA, moved for partial summary judgment on liability. 10/1/82: Skinner, DJ, granted motion: NLRB finding that union, through boycott, committed unfair labor practices would be given collateral estoppel effect. Pl sued for damages for out-of-pocket expenses, lost favorable trade arrangements, lost profits. 9/19/86: Skinner, DJ, awarded damages to Pl: $8,055,490 plus prejudgment interest at 8% from 11/1/85 to date of judgment, plus costs.

Ernest L Mathews Jr, Thomas W Gleason, Charles R Goldburg

  Labor Boycotts
PL-578/32.3. Burke v. Barnes 582 FSupp 163 (DC DC 1984); 759 F2d 21 (DC Cir 1985); 479 US 361 (1987)

9/30/83: House passed HR 4042, conditioning continuance of U.S. military aid to El Salvador on Pres' semiannual certification of El Salvador's progress protecting human rights. 11/17/83: Sen passed bill. 1984: Barnes, 32 other House members sued Defs-Burke-U.S. Archivist, Geisler-White House Exec Clerk, challenging Pres Reagan's pocket veto. Both parties moved for summary judgment.

• 4/9/84: Jackson, DJ, dism'd: Defs' motion for summary judgment granted, Pls' motion denied. 4/25/85: DC Cir, McGowan, CJ, rev'd. 1/14/87: USSC vacated, remanded (6-2): issues concerning whether bill had become law mooted when bill expired by own terms, regardless of whether it had previously been enacted into law.

Morgan J Frankel, Washington, DC

  Military Aid for El Salvador
PL-758/32.3. California v. Cabazon Band of Mission Indians 783 F2d 900 (9th Cir 1986); 107 SCt 1083 (1987)

Cty sought to enforce CA laws prohibiting gambling w/in reservations. Groups of Cabazon/Morongo Indian Bands sued to enjoin Cty from enforcing state law: preempted by Indian Gaming Regulatory Act (25 USC §2710).

• CD CA held for Pl. 1986: 9th Cir aff'd: Indian gaming illegal, violating state public policy (criminal/prohibitory), civil/regulatory state laws. 2/25/87: USSC aff'd (6-3), White, J: 1) Cong did not expressly consent to application of such state laws to reservation Indians by 18 USC §1162, 28 USC §1360 (1953), Organized Crime Control Act, 18 USC §1955 (1970); 2) state laws not expressly

- 32.4 -
authorized by Cong preempted by compelling fed'l, tribal interests. Stevens, J (O'Connor, Scalia, JJ) diss.

Glenn M Feldman, Phoenix, AZ

  Indigenous Rights
PL-32/32.4. William Hohri v. U.S. 586 FSupp 769 (DC DC 1984); rev'd 782 F2d 227 (DC Cir 1986); vacated, remanded 482 US 62 (1987); 847 F2d 779 (Fed Cir 1988); cert den 488 US 925 (1988)

1942: Pres Roosevelt acceded to U.S. military requests, issued Exec Order 9066: U.S. Gov't to remove 120,000 Japanese-Americans from their homes as "military necessity", place them in internment camps during WWII. 1944: USSC upheld internment as military necessity. 1976: Pres Ford formally revoked Exec Order 9066. 1980: Cong created Commn on Wartime Relocation & Internment of Civilians. Commn held h'gs, forced DoJ to reveal docs contradicting "military necessity." 3/16/83: 19 Japanese-American former internees, their org filed class action for monetary damages, declaratory judgment.

• 1984: DJ dism'd suit: stat of limitations had run. 1986: DC Cir rev'd in part: Govt's fraudulent concealment of facts tolled stat of limitations (so it did not run) until 1980 Act. 6/1/87: USSC vacated, remanded (8-0): Fed Cir, not DC Cir, has jurisdiction. 1988: Fed Cir aff'd (2-1) dismissal. Baldwin, CJ, diss. USSC denied cert.

Benjamin L Zelenko, Nussbaum & Wald, One Thomas Circle NW, Washington, DC 20005

See PL-73/30.3; PL-135/30.4; PL-361/50.4

  Japanese-American Internment
PL-402/32.4. Aguillard v. Edward 762 F2d 1251 (5th Cir 1985); 482 US 578 (1987)

LA passed "Creationism Act": forbade teaching of evolution in public schools unless "creation science" also taught. Pls sued for declaratory, injunctive relief: Act violated 1st Amdt establishment clause.

• DJ granted summary judgment to Pls. 1985: 5th Cir aff'd. Many amicus briefs filed. 6/19/87: USSC aff'd (7-2), Brennan, J: Act unconstitutionally endorsed religion, did not further stated secular purpose of "protecting academic freedom." Scalia, Rehnquist, JJ, diss.

Jay Topkis, John DiGiulio, Samuel Rosenberg, Allen Blumstein, Jack Novik, Burt Neuborne, Norman Dorsen, John Sexton, Ron Wilson

  Creationism
PL-325/32.4. Boyle v. United Technologies 792 F2d 413 (4th Cir 1986); 108 SCt 2510 (1988)

4/27/83: Marine copilot Boyle killed when CH-53 helicopter manufactured by Def crashed. Boyle's family sued: negligence, breach of warranty, death due to faulty design (misplaced escape hatch).

• Jury awarded Pls $725,000. 5/27/86: 4th Cir rev'd. 6/27/88: USSC aff'd (5-4), Scalia, J: In developing new weapon, Pentagon must consider "trade-off between greater safety and greater combat effectiveness"; cts should not later allow suits against manufacturers if their

- 32.5 -
products "conformed to those specifications" and contractors told Gov't about known dangers of product. Brennan, J (Marshall, Blackmun, JJ) diss: "There is no more reason for fed'l law to shield contractors now that the Gov't is liable for some torts than there was when the Gov't was liable for none." Stevens, J, diss: Ct should defer to Cong on novel question of policy re balancing conflicting interests in efficient operation of massive Gov't program, protection of individual rights.

Louis Franecke

  Military Negligence
PL-305/32.5. Amerada Hess Shipping Corp v. Argentina 638 FSupp 73 (SD NY 1986); rev'd 830 F2d 421 (2d Cir 1987); rev'd 109 SCt 683 (1989)

4/2/82: Argentina took possession of Falkland/Malvina Islands; war w/ UK ensued. 6/8/82: Argentine bombers attacked neutral Liberian oil tanker in 3 separate strikes outside war zone; tanker later scuttled w/ unexploded bomb aboard. After unsuccessful attempts to obtain relief in Argentina, tanker owner sued in U.S. ct under Alien Tort Act (28 USC §1350): Argentine refusal to compensate so manifest a violation of int'l law that U.S. may refuse to grant immunity.

• 5/5/86: DJ dism'd: ct had no subject matter jurisdiction under FSIA (28 USC §1604). 9/11/87: 2d Cir rev'd: Argentina clearly violated int'l law; FSIA did not preempt jurisdiction under Alien Tort Act. 1/23/89: USSC rev'd (8-0): FSIA sole basis for obtaining jurisdiction over foreign states in U.S. cts; exceptions enumerated in FSIA do not apply.

Douglas R Burnett, NY, NY; amici: Frank Wiswall Jr-Liberia; James T Lafferty-Seamen's Church Inst of NY, NJ

  Falklands/Malvinas War
PL-617/32.5. Frank Atonio v. Wards Cove Packing Co 703 F2d 329 (9th Cir 1982); 768 F2d 1120 (9th Cir 1985); reh'g en banc granted 787 F2d 462 (9th Cir 1985); 810 F2d 1477 (9th Cir 1987); 827 F2d 439 (9th Cir 1987); rev'd 109 SCt 2115 (1989)

1974: Pls-cannery workers filed class action: Def's hiring/promotion practices restricted nonwhites to unskilled, lower paying jobs in violation of Title 7, 42 USC §1981.

• Quackenbush, DJ, entered judgment for Def: no pattern of discrimination. 8/16/85: 9th Cir, Anderson, CJ, aff'd. 2/23/87: 9th Cir, en banc, Tang, CJ: disparate impact analysis may be applied to subjective employment practices in employment discrimination; case returned to panel. 9/2/87: 9th Cir, Tang, CJ: statistics supported inference of discrimination, Dist Ct must evaluate business necessity of discriminatory practices, findings re individual claims premature; vacated, remanded. 6/5/89: USSC rev'd, remanded (5-4), White, J: statistical evidence showing employer hired more whites than non-whites does not establish prima facie disparate-impact case, remanded to consider non-statistical evidence proving discrimination. Stevens, J (Brennan, Marshall, Blackmun, JJ) diss. 1/30/91: Quackenbush, DJ, dism'd w/ prejudice: insufficient evidence of discrimination; ordered Pls to pay $40,000 costs to Defs.

Abraham A Arditi, 1300 Hoge Bldg, 705 2d Ave, Seattle, WA 98104

  Racial Discrimination
- 32.6 -
PL-405/32.6. Brenda Patterson v. McLean Credit Union (MD NC 1985); 805 F2d 1143 (4th Cir 1986); 108 SCt 1419 (1988); 109 SCt 2363 (1989); 729 FSupp 35 (MD NC 1990)

Def fired Pl-black woman 10-yr employee; Pl sued under 42 USC §1981: Def harassed, failed to promote Pl due to race.

• 1985: Ward, DJ: claim for racial harassment not actionable under §1981; instructed jury Pl must prove better qualified than white employee actually promoted to prove promotion-discrimination. Jury found for Def on promotion-discrimination, discriminatory discharge claims. 11/25/86: 4th Cir, Phillips, CJ, aff'd. 4/25/88: USSC (5-4): would hear argument to reconsider (96 SCt 2586 (1976), PL-83/32.1) although neither party requested reconsideration. ( prohibited racial discrimination in private contracts.) 6/15/89: USSC aff'd in part, vacated in part, remanded (5-4), Kennedy, J: racial harassment not actionable under §1981, which covers formation of contracts; DJ erred in instructions to jury on promotion-discrimination; did not overrule Brennan, J (Marshall, Blackmun, Stevens, JJ) conc in part, diss in part: Ct should not have reconsidered Pl's §1981 claim actionable; Pl need not prove better-qualified for promotion. 1/24/90: DJ dism'd: promotion-discrimination not part of formation of contract.

Julius LeVonne Chambers; Stephanie Y Moore, Arthur Kinoy, Frank E Deale, CCR; Esmeralda Simmons, Wendy Brown, Center for Law & Social Justice; Wilhelm Joseph, Nat'l Conference of Black Lawyers; Haywood Burns, Steve Saltzman, Nat'l Lawyers Guild; Margery Greenberg, Toward A More Perfect Union; Jeanne Mallett, Nat'l Rainbow Coalition; Jeanne Mirer

  Racial Discrimination
PL-434/32.6. Penry v. Lynaugh 691 SW2d 636 (TX Crim App 1985); cert den 474 US 1073 (1986); (ED TX 1987); 832 F2d 915 (5th Cir 1987); 109 SCt 2934 (1989); 882 F2d 141 (5th Cir 1989)

10/25/79: Police arrested Pet: rape, murder. 10/24/80: Trial ct: Pet mildly retarded, competent to stand trial.

• 1980: Jury found Pet guilty: death on special instructions. 1985: TX Ct of Crim App aff'd. 1986: USSC denied cert. 1987: Steger, DJ: denied fed'l habeas petition. 5th Cir aff'd. 6/26/89: USSC rev'd in part, aff'd in part, remanded: O'Connor, J: TX violated 8th Amdt by not providing jury w/ vehicle to respond to mitigating evidence of Def's mental retardation; 8th Amdt does not exclude mentally retarded from death penalty. 8/15/89: 5th Cir remanded to DC for resentencing.

Curtis C Mason, Huntsville, TX

  Death Penalty
PL-407/32.6. Reproductive Health Services v. Webster 662 FSupp 407 (WD MO 1987); 851 F2d 1071 (8th Cir 1988); rev'd 109 SCt 3040 (1989)

MO stat preamble declared "life ... begins at conception", fetus has rights equal to person; prohibited use of public funds, facilities, employees for counseling, performing abortions not necessary to save

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mother's life. Pls sued: stat violates due process; sought declaratory, injunctive relief.

• 3/17/87: Wright, DJ: struck down stat, enjoined enforcement. 7/13/88: 8th Cir aff'd, Lay, CJ: stat violates (410 US 113 (1973)). 7/3/89: USSC rev'd (5-4), Rehnquist, ChJ: restrictions on use of public funds, facilities do not contravene due process confers no affirmative right to Gov't aid; Ct need not rule on preamble. Blackmun, J (Brennan, Marshall, JJ) diss at 3066: decision deceptively undermines ignores true issue of right to privacy. Stevens, J, diss at 3079: MO stat unconstitutional interference in contraceptive choices.

Amici: CCR, NLG, Nat'l Abortion Rights Action League

  Abortion
PL-406/32.7. Joseph Giarratano v. Murray (Norfolk Cir Ct 1979); 220 VA 1064 (VA Sup Ct 1980); 668 FSupp 511 (ED VA 1986); 847 F2d 1118 (4th Cir 1988); 109 SCt 2765 (1989); (ED VA No CA-83-185-N 1989); 891 F2d 483 (4th Cir 1989); cert den both cases 111 SCt 83, 222 (1990)

1979: McNamara, J: convicted, sentenced Pl to death for 2 murders based on 5 conflicting confessions made while under influence of drugs. Post-trial investigation suggested evidence at scene came from neither Pl, victim; indicated crime committed by right-handed person, Pl was left-handed. 4/18/80: VA Sup Ct, Compton, J, aff'd sentence. 1986: Pl, other death row inmates sued to force state to provide counsel for post-conviction proceedings.

• 12/8/86: Mehrige, DJ: state required to provide counsel for Pets seeking state habeas relief. 1988: 4th Cir aff'd en banc. 6/28/89: USSC rev'd, remanded (5-4), Rehnquist, ChJ: neither 8th Amdt nor due process clause require state to provide counsel. Stevens, J (Brennan, Marshall, Blackmun, JJ) diss. 1989: Doumar, DJ: denied Pl's habeas petition. 10/3/89: 4th Cir, Butzner, CJ, aff'd. 1/22/90: 4th Cir denied reh'g en banc of class action suit. 1/24/90: 4th Cir denied reh'g en banc of Pl's habeas petition. 10/1/90: USSC denied cert in both suits; Marshall, J, diss in Pl's suit. 2/20/91: VA Gov Wilder commuted Pl's death sentence. Pl sought new trial.

Gerald T Zerkin, Michael Zorak, Linden Tower Professional Group #108, 2d & Franklin Sts, Richmond, VA 23219

  Death Penalty
PL-757/32.7. Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation 617 FSupp 735 (ED WA 1985); 828 F2d 529 (9th Cir 1987); 109 SCt 2994 (1989)

4/83: Yakima Cty Planning Dept approved 2 applications for residential development by non-Indian fee owners of land on Yakima Nation Reservation contrary to Yakima zoning designations. Yakima Nation sued for injunction against landowners, Cty under Treaty between U.S. and Yakima Nation, 12 Stat 951 (1859), 1887 Indian Gen'l Allotment (Dawes) Act, 25 USC §331 et seq, Indian Reorganization Act, 25 USC §§461-491 (1934): indigenous self-determination, sovereignty over all reservation lands.

- 32.8 -

• 9/11/85: DC held for Pl regarding closed area of reservation, for Def regarding open area. 21/9/87: 9th Cir aff'd for closed area, rev'd for open area: Pl had zoning authority over fee land throughout reservation. 6/29/89: USSC: 1) rev'd for open area (6-3), White, J: Pl did not have authority to zone fee lands owned by non-members w/in reservation areas open to non-Indians; 2) aff'd for closed area (5-4) Stevens, J: Pl had exclusive zoning authority in areas closed to non-Indians. Blackmun, J (Brennan, Marshall, JJ) conc in part, diss in part: exercised tribal zoning power was exclusive, so Cty lacked authority to zone any reservation lands.

Tim Weaver, Cockrill & Weaver, PS, 316 N Third St, PO Box 487, Yakima, WA 98907

  Indigenous Rights
PL-889/32.8. Robert Parker v. Dugger (Duval Cty Ct 1983); aff'd 458 So2d 750 (FL Sup Ct 1984); 491 So2d 532 (1986); rev'd (MD FL 1988); rev'd 876 F2d 1470 (11th Cir 1989); rev'd, remanded 111 SCt 731 (1991)

1983: Def arrested: 2 counts 1st degree murder. After trial, jury convicted; found sufficient mitigating circumstances to outweigh aggravating factors; recommended life in prison.

• Hudson, J: overrode jury's recommendation (FL Stat §921.141 (Supp 1990)), sentenced: death. 9/6/84: FL Sup Ct aff'd: insufficient evidence of 2 aggravating factors relied on by trial J, but trial ct found no mitigating factors to balance against 4 properly applied aggravating factors. 7/8/86: FL Sup Ct, Olliff, J: denied motion for stay of execution. 1988: Melton, DJ: granted Def's habeas petition on imposition of death penalty. 6/19/89: 11th Cir, Vance, CJ, rev'd. 1/22/91: USSC rev'd, remanded (5-4), O'Connor, J: FL Sup Ct acted arbitrarily, capriciously by failing to treat adequately Def's nonstatutory mitigating evidence; FL Sup Ct incorrectly determined trial ct found no mitigating factors to balance against aggravating factors; erred by failing to reweigh evidence, apply harmless error analysis after declaring 2 aggravating factors invalid. White, J (Rehnquist, Scalia, Kennedy, JJ) diss.

Robert J Link, Jacksonville, FL

  Death Penalty
PL-798/32.8. Oklahoma Tax Commn v. Citizen Band Potawatomi Indian Tribe of Oklahoma (WD OK #Civ-87-0338-W, 1988); 888 F2d 1303 (10th Cir 1989); 111 SCt 905 (1991); 932 F2d 1355 (1991); 969 F2d 943 (1992)

1987: Def-Commn served Pl cigarette tax assessment letter demanding tribe pay 1982-86 cigarette sales tax of $2.7 million. Pl sued to enjoin assessment. Def counterclaimed: enforce assessment, enjoin Pl from making future sales w/out collecting, remitting state taxes. Pl moved to dismiss counterclaim: Pl had not waived sovereign immunity from suit.

• 4/15/88: West, DJ, denied Pl motions to dismiss, new trial: Def lacked authority to tax on-reservation sales to tribal members or to tax Pl directly, could require Pl to collect taxes prospectively for onreservation sales to nonmembers. Pl appealed. 11/13/89: 10th Cir

- 32.9 -
rev'd, McKay, CJ: DC erred in hearing Def's counterclaim: Pl's absolute sovereign immunity not waived by filing action for injunctive relief, OK lacks authority to tax any on-reservation sales. Defs appealed. 2/26/91: USSC (9-0) aff'd in part, rev'd in part, Rehnquist, ChJ: 1) Pl did not waive sovereign immunity by suing for injunction; 2) land in question was "reservation" for tribal immunity purposes; but 3) although immunity precluded state from taxing tribal members' sales, state free to collect taxes on nonmember sales. Stevens, J, conc. 5/16/91: 10th Cir: denied Commr's motion to reassess high costs, awarded Pl $286 atty fees. 7/14/92: Baldock, CJ: refused additional appellate relief to state.

Michael Minnis, Liberty Tower Ste 3160, 100 N Broadway, Oklahoma City, OK 73102-8606; William Rice, 124 N Cleveland, Cushing, OK 74023; amicus: Melody McCoy, Native American Rights Fund, 1506 Broadway, Boulder, CO 80302-6926

  Sovereign Immunity
PL-532/32.9. Pacific Mutual Life Insurance v. Haslip 553 So2d 537 (AL Sup Ct 1989); 111 SCt 1032 (1991)

1981: Pl's health insurance lapsed when agent for Def-insurance co, also working for other unaffiliated insurance co, misappropriated premiums issued by Pl's employer. 5/82: Pl sued for damages: fraud by Def's agent, Def liable on respondeat superior theory.

• J instructed jury: if it determined liability for fraud it could award punitive damages. 8/7/87: Jury returned verdict for Pl of $1 + million, including punitive damages more than 4 times compensatory damages. 9/15/89: AL Sup Ct, Shores, J, aff'd, specifically upheld punitive damages award: recoverable only for deceit or willful fraud; jury could not have concluded agent's misrepresentations made either innocently or mistakenly. 3/4/91: USSC aff'd (7-1), Blackmun, J: 1) imposing liability on Def-Appellant under respondeat superior doctrine not fundamentally unfair as agent was acting w/in scope of apparent authority as agent when he defrauded Pl-Respondent; 2) common law method for assessing punitive damages not inherently unfair since well-established before 14th Amdt enacted, nothing in Amdt indicates intention to overturn; 3) unlimited jury discretion in fixing punitive damages may be unacceptable under due process clause, necessitating concern for reasonableness/adequate guidance from ct when case tried to jury; 4) punitive damage award here not violation of due process, did not lack objective criteria, was subject to procedural protections in jury instructions, post-verdict h'g, review by State Sup Ct. O'Connor, J, diss.

Charles E Sharp, John F Whitaker, Sadler, Herring & Sharp, 420 N 20th St Ste 2500, Birmingham, AL 35203-3204

  Health Insurance
PL-878/32.9. International Union v. Johnson Controls 680 FSupp 309 (ED WI 1988); 886 F2d 871 (7th Cir 1989); rev'd 111 SCt 1196 (1991)

1982: Def established fetal protection policy prohibiting women from work involving lead exposure exceeding Occupational Safety & Health Admr standards, unless infertility medically documented.

- 32.10 -
1987: Pl brought class action challenging Def's gender-based policy: discriminatory under Title VII, 1964 Civil Rights Act §§701(k), 703(a), 703(e)(1); 42 USC §§2000e(k), 2000e-2(a), 2000e-2(e)(1).

• 1/21/88: Warren, DJ, granted Def's summary judgment motion: Pl failed to overcome business necessity defense; fetal protection policy furthers industrial safety. 9/26/89: 7th Cir, Coffey, CJ, aff'd. 3/20/91: USSC rev'd (5-3-1), Blackmun, J: Def's policy discriminated against female employees where males not prohibited from work involving lead exposure damaging to male reproductive system; Def did not establish sex as bona fide occupational qualification: no evidence sex, pregnancy interfere w/ job performance.

Marsha S Berzon, San Francisco, CA

  Women's Rights
PL-882/32.10. McCleskey v. Zant (Fulton Cty Super Ct 1978); 263 SE2d 146 (GA Sup Ct 1980); 580 FSupp 338 (ND GA 1984); 753 F2d 877 (11th Cir 1985); 481 US 279 (1987); 890 F2d 342 (11th Cir 1989); aff'd 111 SCt 1454 (1991)

1978: At trial, cellmate testified Def boasted about killing, other evidence. Jury convicted Def: murder, armed robbery; sentence: death.

• 1/24/80: GA Sup Ct, Undercofler, J, aff'd. Def filed habeas petition, did not raise claim. 2/1/84: Forrester, DJ: granted Def relief. 1/25/85: 11th Cir, Roney, CJ, rev'd. 4/22/87: USSC, Powell, J, aff'd (5-4). 1987: Def filed 2d habeas petition; DC granted. 11/22/89: 11th Cir, Kravitch, CJ, rev'd. 4/16/91: USSC aff'd (6-3), Kennedy, J: 1) when prisoner files 2d habeas, gov't bears burden of pleading abuse of writ, which is satisfied if it notes Def's prior writ history, identifies claims appearing for 1st time: burden shifts to Def to excuse failure to raise claim earlier by showing cause/actual prejudice or fundamental miscarriage of justice; 2) Def failed to demonstrate cause for failure to raise claim in 1st fed'l habeas. Marshall, J (Blackmun, Stevens, JJ) diss: good faith abuse of writ standard codified in 28 USC §2244(b), Habeas Corpus Rule 9(b); Cong rejected amdt to §2244(b); majority exercises legislative power to repeal w/ tougher standard; manifestly unfair: Rule not in effect when Def filed 1st petition, parties not on notice of change in standard, standard not employed by Ct of App, should remand to consider record fully; cause and prejudice standard creates nearly irrefutable presumption that omitted claims are permanently barred.

John Charles Boger, Chapel Hill, NC

  Habeas Corpus
PL-891/32.10. Cathy Burns v. Reed (SD IN 1988); 894 F2d 949 (7th Cir 1990); 111 SCt 1934 (1991)

9/2/82: Police suspected Pl had multiple personality disorder, one of which responsible for shooting her son, sought advice from Def-DA, who suggested they hypnotize Pl. Police interpreted Pl's statements under hypnosis as supporting multiple personality theory, detained Pl, asked Def's advice; Def said they probably had probable cause for arrest. During probable cause h'g, officer testified Pl confessed

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to shooting w/out disclosing hypnosis. Pl arrested: attempted murder. Before trial, ct granted Pl's motion to suppress statements given under hypnosis; DA dropped charges. 1/31/85: Pl sued for damages: 4th, 5th, 14th Amdt violations (42 USC §1983).

• 1988: Dillin, DJ: granted Def's motion for directed verdict; Def absolutely immune from liability. 2/6/90: 7th Cir aff'd, Bauer, CJ: DA should be afforded absolute immunity for giving legal advice to police about legality of their investigative conduct, role in probable cause h'g. 5/30/91: USSC (6-3) aff'd in part, rev'd in part, White, J: 1) DA absolutely immune from liability under §1983 for participating in probable cause h'g: necessary to protect judicial process; 2) Def did not meet burden of showing absolute immunity for giving legal advice to police in investigative phase of criminal case: not "intimately associated with ... judicial ... process." Scalia, J (Blackmun, Marshall, JJ) conc, diss.

Michael K Sutherlin, Indianapolis, IN

  Prosecutorial Immunity
PL-892/32.11. James Lehnert v. Ferris Faculty Assn 643 FSupp 1306 (WD MI 1986); aff'd 881 F2d 1388 (6th Cir 1989); 111 SCt 1950 (1991)

1986: Pls-employees objected to Def-union's use of Pls' service fees under MI Public Employment Relations Act §423.202; sued: using funds for other than negotiating, administering collective bargaining agreements violated 1st, 14th Amdts (42 USC §§1983, 1985, 1986).

• 8/25/86: Enslen, DJ: awarded damages to Pls on certain items, other union expenditures chargeable to Pls. 8/14/89: 6th Cir aff'd, Martin, CJ: each questioned activity was sufficiently related to union's duties as Pls' exclusive collective bargaining rep to justify Pls' subsidy. 5/30/91: USSC (4-1-4) aff'd in part, rev'd in part, remanded, Blackmun, J: 1) local bargaining reps may charge objecting employees their pro rata share of costs associated w/ state, nat'l union affiliate activities even if those activities do not directly benefit Pls' bargaining unit in particular membership yr; essence of affiliation relationship is that parent union's resources enure to benefit of local members; 2) union cannot charge objecting employees for lobbying, electoral expenses: would compel dissenters to engage in political speech they oppose, placing burden on 1st Amdt rights; 3) objecting members can be charged for expenses incident to preparation for strike even though strike would be illegal under MI law; 4) expenses substantively indistinguishable from those applicable to collective bargaining, aid in negotiations, enure to direct benefit of members, impose no additional burden on 1st Amdt rights. Marshall, J, conc, diss; Scalia, J (O'Connor, Souter, Kennedy, JJ) conc, diss.

Robert J Chanin

  Union Dues
PL-780/32.11. Edmonson v. Leesville Concrete Co 860 F2d 1308 (5th Cir 1988); reh'g 895 F2d 218 (1990); rev'd 111 SCt 2077 (1991)

1987: Pl-black construction worker injured at work in fed'l enclave sued Def: negligence. During voir dire, Def used peremptory challenges

- 32.12 -
to remove 2 blacks from jury. Pl asked ct to order Def to state race-neutral explanation for striking jurors, 476 US 79 (1986).

• 1987: Vernon, DJ, denied motion: does not apply in civil proceedings; entered judgment on jury verdict: Pl 80% contributorily negligent. 2/5/88: 5th Cir rev'd, remanded. 3/1/90: On reh'g, 5th Cir aff'd: private litigant in civil case can use peremptory challenges w/out accountability for racial classification. 6/3/91: USSC rev'd (6-3), Kennedy, J: 1) private litigant in civil case may not use peremptory challenges to exclude jurors based on race: violates equal protection rights of challenged jurors; 2) Def's exercise of peremptory challenge in DC constituted state action, had source in state authority; 3) remanded for determination whether Pl established prima facie case of racial discrimination requiring Def to offer raceneutral explanation for peremptory challenge.

James B Doyle, Lake Charles, LA

  Jury Selection
PL-893/32.12. Jeffrey Masson v. New Yorker Magazine 686 FSupp 1396 (ND CA 1987); 881 F2d 1452, superseded 895 F2d 1535 (9th Cir 1989); rev'd, remanded 111 SCt 2419 (1991)

1980: Sigmund Freud Archives hired Pl-Project Dir. 1981: Disillusioned w/ Freudian psychology, Pl advanced own theories, was fired. 1982: Def-author taped several interviews re Pl's relationship w/ Archives; during editorial process Pl expressed alarm re errors. 12/83: Def-publisher published Def's article. 1984: Def published as book w/ knowledge of Pl's allegation it contained defamatory material. Pl sued: libel (CA Civ C §45).

• 8/17/87: Lynch, DJ, granted Def's motion for summary judgment: alleged inaccuracies substantially true, rational interpretations of ambiguous conversations, no jury question of actual malice. 8/4/89: 9th Cir aff'd, Alarcon, CJ, superseding prior opinion. 6/20/91: USSC rev'd, remanded (7-2), Kennedy, J: 1) evidence presented jury question under CA law whether Def acted w/ knowledge of falsity, reckless disregard of truth, falsity of 5 of 6 passages; reasonable reader would conclude quotation marks indicate author not interpreting speaker's ambiguous statement, but attempting to convey what speaker said; 2) on remand, 9th Cir to consider whether DC erred in granting summary judgment to Def-publisher on basis of relationship w/ author or lack of independent actual malice. White, J (Scalia, J) conc, diss.

Charles O Morgan Jr, San Francisco, CA

  Libel
PL-880/32.12. Barnes v. Glen Theater 726 FSupp 728 (ND IN 1985); 802 F2d 287 (7th Cir 1986); 695 FSupp 414 (1988); 887 F2d 826 (1989); reh'g 904 F2d 1081 (1990); rev'd 111 SCt 2456 (1991)

1985: Pl-nude dancing establishments sued: public indecency statute, IN C §35-45-4-1 (1988), requiring dancers to wear pasties, G-strings violated 1st Amdt.

• 1985: DC permanently enjoined enforcement. 1986: 7th Cir rev'd,

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remanded. 1988: Sharp, DJ: nude dancing not protected by 1st Amdt, not expressive conduct. 1989: 7th Cir rev'd, remanded. 1990: 7th Cir, reh'g en banc, rev'd: non-obscene nude dancing is protected expression; stat improperly infringed on activity, message of eroticism, sexuality. 6/21/91: USSC rev'd (3-2-4), Rehnquist, ChJ: 1) nude dancing is expressive conduct; 2) stat constitutional despite incidental limitations on expressive activity: furthers substantial gov't interest in protecting societal morality, unrelated to suppression of speech; restriction on 1st Amdt freedoms not greater than necessary to further gov't interest. White, J (Marshall, Blackmun, Stevens, JJ) diss: stat is not general prohibition, reaches significant amount of protected expressive activity; state's general interest in promoting societal order, morality not sufficient justification; statutory prohibition relates to nude dancing performance: may generate erotic feelings among spectators, which state seeks to regulate; even if compelling state interest, stat not narrowly tailored; less restrictive means available.

Bruce J Ennis Jr, Washington, DC

  Freedom of Expression
PL-666/32.13. Blanchford v. Native Village of Noatak & Circle Village 872 F2d 1384, 896 F2d 1157 (9th Cir 1990); rev'd, remanded 111 SCt 2578 (1991)

1985: Alaskan Native villages sued state official for order requiring payment to Pls of money allegedly owed under state revenue-sharing statute: Def's 11th Amdt sovereign immunity did not preclude Pl's suit under 28 USC §1362, 14th Amdt equal protection of indigenous sovereignty.

• DC dism'd: violates 11th Amdt. 1990: 9th Cir rev'd: §1362 constitutes Congressional abrogation of 11th Amdt immunity; upon reconsideration: AK had no immunity against suits by Indian tribes. 6/24/91: USSC rev'd, remanded (6-3), Scalia, J: 11th Amdt bars suits by Indian tribes against States w/out their consent. Blackmun, J (Marshall, Stevens, JJ) diss: 11th Amdt does not preclude tribal suits of states because tribal entities are neither "Citizens of another State," nor "Citizens or Subjects of any Foreign State" as precluded by 11th Amdt.

Lawrence A Aschenbrenner, Native American Rights Fund, 310 K Street Ste 708, Anchorage, AK 99501

  Indigenous Rights
PL-781/32.13. Yakima Cty v. Confederated Tribes & Bands of the Yakima Indian Nation 903 F2d 1207 (9th Cir 1990); aff'd 112 SCt 683 (1992)

1980s: Yakima Cty, WA sought to impose separate ad valorem, excise sales taxes on Yakima Nation Reservation fee lands. Yakima Tribe sued for injunction under 1887 Indian General Allotment (Dawes) Act, 25 USC §331, Indian Reorganization Act, 25 USC §§461-491 (1934): indigenous sovereignty.

• McDonald, DJ: granted summary judgment for tribe. 1990: 9th Cir aff'd in part, rev'd, remanded in part: excise tax impermissible, ad valorem tax impermissible only if it would have demonstrably

- 32.14 -
serious impact on tribe's political integrity, economic security, or health and welfare. 1/14/92: USSC aff'd (8-1), Scalia, J: 1) pursuant to Indian General Allotment Act, Cty could impose ad valorem tax on reservation land patented in fee to Indian Nation or to individual Indians, but 2) cty could not enforce its excise tax on sales of such lands. Blackmun, J, conc in part, diss in part: no unmistakably clear Congressional authorization for state taxation of Indian-owned feepatented land.

Robert Wayne Bjur, Yakima, WA

  Indigenous Rights
PL-884/32.14. Keeney v. Tamayo-Reyes 926 F2d 1492 (9th Cir 1991); rev'd 112 SCt 1715 (1992); 969 F2d 839 (9th Cir 1992)

1984: Def-Cuban immigrant w/ little education, no English, pleaded nolo to 1st degree manslaughter. Def filed habeas petition: plea invalid: based on inaccurate, incomplete translation of mens rea element of crime.

• 1988: OR Ct dism'd: Def's interpreter correctly, fully accurately, translated communications between Def, atty. 1989: OR Ct of App aff'd. OR Sup Ct denied review. 1990: Redden, DJ: denied fed'l habeas petition. 3/4/91: 9th Cir rev'd: Def entitled to evidentiary h'g on whether mens rea element of crime properly explained; record disclosed material facts re translation were not adequately developed at OR ct h'g; post-conviction atty's negligent failure to develop facts did not constitute deliberate bypass of OR ct procedure. 5/4/92: USSC rev'd, remanded (5-4), White, J: 1) cause-and-prejudice, not deliberate bypass, correct standard for excusing habeas Pet's failure to develop material facts in state ct; 2) Def entitled to fed'l evidentiary h'g if he can show cause for failure to develop facts in state ct, and actual prejudice or fundamental miscarriage of justice from failure to hold h'g. O'Connor, J (Blackmun, Stevens, Kennedy, JJ) diss: Ct's decision cannot be reconciled w/ 28 USC §2254(d), which presumes continuing validity of (recognized "deliberate bypass" exception to Def's right to h'g where material facts not adequately developed in state ct).

Steven T Wax, Portland, OR

  Immigrants' Rights
PL-899/32.14. Burlington, VT v. Dague 733 FSupp 23 (DC VT 1990); aff'd 935 F2d 1343 (2d Cir 1991); rev'd 112 SCt 2638 (1992)

10/9/85: Property owners sued: Def-city operated landfill in violation of Resource Conservation & Recovery Act (RCRA), 42 USC §§6901-6992 (Supp 1989); Water Pollution Control Act (Clean Water Act), 33 USC §§1251-1387 (Supp 1989).

• 3/15/90: Billings, J: held for Pls on statutory claims, reserved common-law claims for trial, awarded atty fees under Solid Waste Disposal Act §7002(e), 42 USC §6972(e); Water Pollution Control Act, 33 USC §1365(d). 6/12/91: 2d Cir, Pratt, CJ, aff'd. 6/24/92: USSC rev'd (6-1-2), Scalia, J: enhancement of atty fees awarded to prevailing party for contingency not permitted under fee-shifting

- 32.15 -
provisions of Act; enhancement to pay for atty's time in cases where client does not prevail; unnecessary to determination of reasonable fee, inconsistent w/ ct's rejection of contingent fee model in favor of lodestar model; would make setting of fees more complex, arbitrary, unpredictable, litigable. O'Connor, J, diss: reasonable atty fees must incorporate reasonable incentive to atty contemplating whether to take case; atty will choose fee-paying client unless contingency-client can promise enhancement of sufficient magnitude to justify extra risk of nonpayment. Blackmun, J (Stevens, J) diss.

Barry L Goldstein

  Environment
PL-745/32.15. Planned Parenthood v. Casey 744 FSupp 1323 (ED PA 1990); 947 F2d 682 (3d Cir 1991); 112 SCt 2791 (1992)

1990: Abortion clinics, physician sued: 1988, 1989 amdts to 1982 PA Abortion Control Act (18 PACS §§3203, 3205-3207, 3209, 3214) violated 14th Amdt; sought declaratory judgment, permanent injunction barring enforcement.

• 8/24/90: Huyett, DJ: issued permanent injunction: statutes unconstitutional. 10/21/91: 3d Cir aff'd in part, rev'd in part, Stapleton, CJ: struck down husband notification provision; upheld others. 6/29/92: USSC aff'd in part, rev'd in part (3-2-4): 1) stare decisis doctrine requires affirmance of 's essential holding recognizing woman's right to choose abortion before fetal viability; 2) undue burden test, rather than trimester framework, should be used in evaluating abortion restrictions before viability; 3) medical emergency definition in PA stat sufficiently broad: did not impose undue burden; 4) informed consent requirements, 24-hr waiting period, parental consent provision, reporting/record-keeping requirements did not impose undue burden; 5) spousal notification provision imposed undue burden: invalid.

  Abortion
PL-756/32.15. Jayne Bray v. Alexandria Women's Health Clinic 726 FSupp 1483 (ED VA 1989); 914 F2d 582 (4th Cir 1990); 113 SCt 753 (1993)

1989: Abortion clinics, abortion rights organizations applied for permanent injunction preventing Operation Rescue members from trespassing on, impeding, obstructing abortion facilities.

• 1989: DC issued injunction against Pets acting in specified VA counties/cities in Washington metropolitan area based on state law claims of trespass, public nuisance: Pets violated 42 USC §1985(3) by conspiring to deprive women seeking abortions of right to interstate travel; Pets to pay Resps $27,687 atty fees under 42 USC §1988. 9/19/90: 4th Cir aff'd: gender-based animus meets requirement of class-based animus under §1985(3). 1/13/93: USSC rev'd in part, vacated in part, remanded (5-4), Scalia, J: 1) goal of preventing abortion does not qualify as invidiously discriminatory animus directed at women in general; 2) anti-abortion demonstration's incidental effect on some women's right to interstate travel did not suffice to show conspiracy to deprive women of protected interstate

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travel right; 3) deprivation of fed'l right to abortion could not serve as object of purely private conspiracy; 4) claim that alleged conspiracy to prevent/hinder authorities from securing equal protection to all not suitable for review; 5) abortion clinics, other Resps not entitled to atty fees. Stevens, J (Blackmun, J) diss: "The Court ignores the obvious (and entirely constitutional) congressional intent behind §1985(3) to protect this Nation's citizens from what amounts to the theft of their constitutional rights by organized and violent mobs across the country." Souter, J, conc in part, diss in part; O'Connor, J (Blackmun, J) diss.

Deborah A Ellis, Columbus, OH

  Abortion
PL-913/32.16. Herrera v. Collins 682 SW2d 313 (TX Cr App 1984); habeas den 819 SW2d 528 (TX Cr App 1985); habeas den 904 F2d 944 (5th Cir 1989); habeas den 954 F2d 1029 (5th Cir 1992); aff'd 113 SCt 853 (1993)

9/81: Pet arrested for shooting 2 police officers. 1/82: Pet convicted of capital murder of police officer based on 2 eyewitness identifications, Pet's handwritten letter impliedly admitting guilt, circumstantial evidence; sentence: death. 7/82: Pet pleaded guilty to related capital murder of second police officer. Pet challenged first conviction on direct appeal, 2 collateral proceedings in TX cts, fed'l habeas petition. 2/92: Pet filed second habeas: affidavits showed his now-dead brother committed both murders; 8th, 14th Amdts prohibited his execution under this newly-discovered evidence.

• Hinojosa, DJ: granted stay of execution pending evidentiary h'g. 1992: 5th Cir vacated stay: claim not cognizable on fed'l habeas absent accompanying fed'l constitutional violation. 1/25/93: USSC aff'd (6-3), Rehnquist, ChJ: claim of actual innocence based on newly discovered evidence not ground for fed'l habeas relief; fed'l habeas cts ensure that individuals not imprisoned in violation of Const, not to correct errors of fact; TX fed'l criminal procedure rule imposing 30 day time limit for filing new trial motion based on newly-discovered evidence did not violate fundamental fairness, due process; executive clemency under state law is traditional remedy for claims of innocence based on new evidence, discovered too late to file trial motion. Blackmun, J (Stevens, Souter, JJ) diss.

Talbot D'Alemberte, Miami, FL

  Death Penalty
PL-548/32.16. Scott, Vivian Nelson v. Saudi Arabia (SD FL 1989); 923 F2d 1528 (11th Cir 1991); 113 SCt 1471 (1993)

12/7/83: Pl saw recruitment ad in U.S., commenced employment as monitoring systems engineer at King Faisal Specialist Hospital in Riyadh, Saudi Arabia. 3/20/84: Pl reported hospital safety hazards to investigative commn of Saudi Gov't. 9/27/84: Hospital agents summoned Pl to Hospital's security office, moved him to jail; Saudi Gov't agents shackled, tortured, beat, imprisoned Pl 39 days, never informed Pl of charges. Saudi Gov't official told wife Pl would be released if she provided sexual favors. Sen Kennedy (D-MA) secured Pl's release. Pl, wife returned to U.S., sued Defs — Saudi Arabia, Hospital, Royspec,

- 32.17 -
Saudi Gov't Corp acting as purchasing agent for Hospital — in U.S. ct: testimony of Pl-wife would be ½ as valuable as male witness in Saudi ct; sought compensatory, punitive damages under 1976 FSIA (28 USC §§1602-1611) (based on commercial activity carried on in U.S. by foreign state). Def moved to dismiss: lack of subject matter jurisdiction. 1987: U.S. Embassy-Riyadh destroyed file on case.

• 8/11/89: Nesbitt, DJ: dism'd. 9/14/90: Social Security Admr ALJ: Pl met disability insured status requirements of Social Security Act. 2/21/91: 11th Cir, Re, CJ, rev'd. DoJ, State Dept urged 11th Cir to reconsider. 4/21/91: Pls requested State Dept to espouse Pls' claims against Def-Kingdom: Def's torture of U.S. citizen damaged U.S. sovereignty in Def's country; pending. 3/23/93: USSC rev'd (6-3), Souter, J: Defs' actions not "based on commercial activity" w/in meaning of FSIA (28 USC §1605(a)(2)); torture, detention "peculiarly sovereign in nature." Stevens, J, diss: action based on "commercial activity" (operation of hospital, employment practices), activity had "substantial contact with U.S." (maintaining MD office, buying supplies/equipment in U.S.). White, J (Blackmun, J) conc; Blackmun, J, conc in part, diss in part; Kennedy, J (Blackmun, Stevens, JJ) conc in part, diss in part.

Jorge A Duarte, Miami, FL; Anthony D'Amato, Northwestern U School of Law, Chicago, IL; Paul S Stevens, Washington, DC

  Torture
PL-915/32.17. Hazen Paper Co v. Biggins 953 F2d 1405 (1st Cir 1992); 113 SCt 1701 (1993)

1986: Pet fired Resp at age 62, weeks before pension vested. Resp sued: age discrimination under 1967 Age Discrimination in Employment Act (ADEA), 29 USC §§621, 623, 626; 1974 Employee Retirement Income Security Act (ERISA), 29 USC §1140.

• After trial, jury held for Resp on ADEA claim: willful violations of ERISA, state laws. DJ granted Pet motion for judgment notwithstanding verdict on state law claim, finding of willfulness; otherwise denied. 1st Cir aff'd for Resp on ADEA, ERISA claims, rev'd judgment notwithstanding verdict. 4/20/93: USSC remanded (9-0), O'Connor, J: employee fired because of pension status does not automatically establish he was fired because of age; willfulness required by ADEA to recover liquidated damages must be based on proof employer knew or showed reckless disregard for whether its conduct was prohibited by statute; firing employee to prevent vesting of pension benefits is actionable under ERISA. Pending.

Maurice M Cahillane, Jr, Springfield, MA

  Age Discrimination
PL-800/32.17. William Daubert v. Merrell Dow Pharmaceuticals 727 FSupp 570 (SD CA 1989); 951 F2d 1128 (9th Cir 1991); 113 SCt 2786 (1993)

Pls born w/ serious birth defects. Pls sued Def: birth defects caused by Def marketed Bendectin. Def moved for summary judgment: Bendectin does not cause human birth defects, Pls unable to present admissible evidence it does, produced well-credentialed expert's affidavit based on extensive published scientific literature review. Pls

- 32.18 -
produced 8 expert testimonials based on animal studies, chemical structure analyses, unpublished "reanalysis" of previously published human statistical studies.

• 1989: DJ granted Def summary judgment. 1991: 9th Cir aff'd: "general acceptance test" not met. 6/28/93: USSC vacated, remanded (7-2), Blackmun, J: 1) "general acceptance" is not necessary precondition to admissibility of scientific evidence under Fed'l Rules of Evidence. Rehnquist, ChJ (Stevens, J) diss in part, conc in part.

Michael H Gottesman, Washington, DC

  Birth Defects
PL-870/32.18. Lyle Austin v. U.S.; U.S. v. One Parcel of Property (DC SD 1991); 964 F2d 814 (8th Cir 1992); rev'd, remanded 113 SCt 2801 (1993)

1990: Pet arrested, pleaded guilty in SD state ct to possession w/intent to distribute cocaine; sentence: 7 yrs prison. Fed'l gov't filed civil forfeiture proceedings (21 USC §§881(a)(4), (a)(7)) against Pet's auto body shop, mobile home. Pet: gov't seizure violated 8th Amdt excessive fines clause.

• 1991: Jones, DJ: forfeiture proceedings civil, not w/in 8th Amdt restrictions. 7/2/92: 8th Cir aff'd. 6/28/93: USSC rev'd, remanded (9-0), Blackmun, J: excessive fines clause applies to forfeitures if forfeiture amounts to monetary punishment.

  Forfeiture
- 33.1 -
d. CASES LOST

PL-104/33.1. Hurd v. Hodge 162 F2d 233, diss 235, 245 (DC Cir 1947)

1945: Pls sued to enforce covenant forbidding rental/sale to Negroes.

• DJ upheld covenant. 5/26/47: DC Cir aff'd, Edgerton, CJ, diss: Covenant violates: U.S. Const; 1866 Civil Rights Act, 8 USC §42; restraint on alienation; public policy: Arts 55, 56 (PL-370/2.1), 4 DLR 674 (Ontario High Ct 1945).

  Racial Discrimination
PL-561/33.1. Charles Diggs v. Shultz 470 F2d 461 (DC Cir 1972); cert den 411 US 931 (1973)

Pls-U.S. Reps, native Zimbabweans, others unable to enter S Rhodesia (Zimbabwe); Gore Vidal, author of book banned in S Rhodesia, sought declaratory, injunctive relief to stop import of metallurgical chromite from S Rhodesia: import, U.S. authorization of import violated UNSC Res 232 imposing embargo on S Rhodesia, U.S. Exec Orders 11322, 11419 (22 USC §287c) establishing criminal sanctions for violating embargo; Byrd Amdt (50 USC §98-98(h) barring Pres from prohibiting, regulating import of strategic materials from noncommunist country when import of same material from Communist country permitted) does not compel treaty violation.

• Robinson, DJ, dism'd: lack of standing, Pls' quarrel really w/ S Rhodesia, nonjusticiable issues. 10/31/72: DC Cir aff'd (3-0), McGowan, CJ: Pls had standing: suffered personal injuries from S Rhodesia; Pls "personally aggrieved and injured by the dereliction of any member state which weakens the capacity of the world organization to make its policies meaningful"; issue is nonjusticiable: Cong has power to abrogate treaty commitment, Pres has power to break treaty or take alternate steps to satisfy Byrd Amdt. 1973: USSC denied cert.

Morton Stavis, NY, NY; David Rein, Washington, DC

See PL-566/43.1; PL-370/2.1

  Rhodesia Embargo
PL-408/33.1. Hope Punnett v. U.S. 621 F2d 578 (3rd Cir 1980); 602 FSupp 530 (ED PA 1984)

1950s: 250,000 GIs forced to witness atomic blast tests at close range. Pl, others later had miscarriages, children w/ birth defects. 1/4/79: Pl filed class action seeking preliminary injunction requiring U.S. Army to warn those exposed of health risks.

• 1980: Ditter, DJ: denied preliminary injunction. 5/13/80: 3rd Cir, Rosenn, CJ, aff'd. 10/24/84: On remand, Ditter, DJ, dism'd: Pls failed to request Army to provide warnings.

Ellen Yaroshefsky, Herb Newberg

  Nuclear Testing Victims
PL-559/33.1. Verlinden BV v. Central Bank of Nigeria 488 FSupp 1284 (SD NY 1980); 647 F2d 320 (2d Cir 1981)

4/75: Pl-Dutch Corp contracted to sell cement to Nigeria in exchange for credit paid through Def. 8/75: Def withheld Pl's credit pending permission

- 33.2 -
for Pl to enter Nigeria's clogged ports. Pl sued for lost profit, costs to subcontractor. Def sought dismissal: FSIA (28 USC §1330).

• Weinfeld, DJ, dism'd: lack of jurisdiction under FSIA. 2d Cir aff'd, Kaufman, CJ: FSIA gives fed'l DC jurisdiction over "nonjury civil actions against a foreign state" by citizen or alien; Cong cannot grant jurisdiction over 2 aliens for commercial violation, distinguished from (see PL-19/31.1): physical torture violates law of nations, transgresses U.S. law; commercial violation does not.

  Immunity
PL-551/33.2. Tel-Oren v. Libyan Arab Republic 517 FSupp 542 (DC DC 1981); 726 F2d 774 (DC Cir 1984); cert den 105 SCt 1354 (1985)

3/11/78: Bus attacked in Israel carrying tourists, Israeli citizens. Pls-injured, relatives of 29 killed sued Libya, PLO, Palestine Information Office (PIO), Nat'l Assn of Arab-Americans (NAAA), Palestine Cong of North America (PCNA) under Alien Tort Claims Act (28 USC §1350): violations of Geneva Conventions, (PL-370/2.1), UDHR, (PL-364/2.1), (PL-97/2.2), conspiracy violation of U.S. criminal law (raising money to support terrorist act). Defs filed for dismissal: no cause of action under criminal law; no treaty cited gave private cause of action.

• 6/30/81: Green, DJ, dism'd: no specific allegations to support conspiracy claim; no cause of action under int'l law: treaty must expressly provide private right for cause of action. 2/3/84: DC Cir aff'd, Edwards, CJ: explicit private right in treaty not required: under Alien Tort Claims Act, cause of action is violation of law of nations; Cong gave right to sue in Act, Cts cannot nullify; (see PL-19/31.1) principle does not apply to non-state actor (PLO); political violence not violation of universally recognized norms covered by Robb, CJ, conc: nonjusticiable political question. Bork, CJ, conc: treaties give no cause of action; nonjusticiable question of foreign relations; act of state doctrine forbids suit. 1985: USSC denied cert.

NAAA-Karla Letsche, Cherif Sedky, Lawrence Coe Lanpher, Washington, DC; PIO-Michael Kennedy, NY; PCNA-Linda Huber, Michael Tigar, Amanda Burrell

  Palestinians
PL-125/33.2. United Presbyterian Church v. Reagan 557 FSupp 61 (DC DC 1982); 738 F2d 1375 (DC Cir 1984)

12/4/81: Pres Reagan signed Exec Order 12333 giving CIA, FBI, DoD, DoE, other agencies authority for massive foreign intelligence gathering, surveillance operation, including use of warrantless searches. 6/30/82: 36 Pls (religious, political, educational orgs, journalists, academics, Reps) sued for injunction to declare Order unconstitutional under 1st Amdt, alleging they would likely be targets of Order.

• 10/20/82: Gesell, DJ: denied pretrial discovery, dismissed complaint for failure to allege any Pl suffered direct injury under Order. 7/17/84: DC Cir aff'd, Scalia, CJ: Pls lacked standing because alleged no concrete injury: not entitled to discovery.

William H Schaap, Frank E Deale, Michael A Ratner, Morton Stavis, Peter D Baird

  Political Surveillance
- 33.3 -
PL-17/33.3. George Crockett v. Reagan 558 FSupp 893 (DC DC 1982); 720 F2d 1355 (DC Cir 1983); cert den 104 SCt 3533 (1984)

1/81: 19 U.S. military personnel active in El Salvador. 3/10/81: 37 added. 29 U.S. Reps sued: Pres Reagan violated War Powers Res (WPR) (50 USC §1541) by introducing U.S. armed forces into El Salvador, providing economic assistance to Salvadoran gov't.

• 10/4/82: Green, DJ: dism'd in 8-page opinion discussing WPR. 11/18/83: DC Cir aff'd: "no error in judgment of DC."

Frank E Deale, Michael D Ratner, Morton Stavis, Margaret Ratner, Peter Weiss, Doris Peterson, Robert C Boehm, Arthur Kinoy, Rev Robert F Drinan, SJ, Ira Lowe

  War Powers Resolution
PL-18/33.3. Javier Sánchez-Espinoza v. Reagan 568 FSupp 596 (DC DC 1983); 770 F2d 202 (DC Cir 1985)

11/30/82: U.S. Reps, Nicaraguan citizens/residents, 2 FL residents sued: U.S. actions in Nicaragua violated U.S. Const war powers clause (Art I §8, cl 2); Neutrality Act (18 USC §960), War Powers Res (50 USC §1541), 1947 Nat'l Security Act (50 USC §401), Boland Amdt to Dept of State Authorization Act, FY 1984, 1985 (50 USC §1546a).

• 8/1/83: Corcoran, DJ, dism'd: nonjusticiable political question; no basis for fed'l jurisdiction: state residents' claims arose under state law. 8/13/85: DC Cir aff'd, Scalia, CJ: Alien Tort Stat not waiver of sovereign immunity in monetary damage suits; providing nonmonetary relief against executive officials would be abuse of discretion; no relief available to Nicaraguan citizens/residents for violation of 4th, 5th Amdts; Reps' claims are political question; FL residents' claim that military training camps constitute nuisance dism'd for lack of pendent jurisdiction.

Ellen Yaroshefsky, Sarah Wunsch, Margaret L Ratner, Peter Weiss, Michael Ratner, CCR; Marc Van Der Hout, Betty L Bailey, Rhonda Copelon, William H Schaap, Peter Homer

  Contra Aid
PL-279a/33.3. Isabel Morel de Letelier v. Chile 567 FSupp 1490, 575 FSupp 1217 (SD NY 1983); rev'd 748 F2d 790 (2d Cir 1984); cert den 105 SCt 2656 (1985)

9/21/76: Orlando Letelier-Chilean exile leader/ambassador under Allende Gov't assassinated in Washington, DC. 8/78: Pls-relatives sued: Def directed assassination. See PL-279/30.1. 11/5/80: Green, DJ, DC DC, issued default judgment: Gov't, agents of Pinochet responsible for assassination; ordered $2.9 million damages. Def did not respond. Pls filed judgment in SD NY: attempted to pierce corporate veil, collect from Chile nat'l airlines (LAN) in NY, name receiver in lieu of cash (FRCivP 69): Def ignored LAN's separate identity by enlisting its aid in assassination to: 1) transport assassins/explosives from Chile to U.S.; 2) assist in payments to assassins; 3) provide assassin w/ false passport, escape to Chile. Def-Chile did not respond; LAN moved to dismiss: separate corp identity.

• 7/28/83: Lasker, DJ: 1) if facts as Pls asserted, LAN's role fell under

- 33.4 -
FSIA commercial activity exception (28 USC §1605(a)(2); 2) as in 103 SCt 2591 (1983), respecting corp identity would violate "int'l equitable principles", "create a right without a remedy"; 3) ordered Def to submit to discovery to complete record. Def refused, filed diplomatic notes w/ U.S. State Dept: DC DC lacked jurisdiction to issue judgment, SD NY lacked jurisdiction to enforce judgment. 12/21/83: Lasker, DJ: 1) granted Pls' motion for FRCivP 37(b) sanctions against Def; 2) accepted Pls' assertions as facts based on Def's nonresponse to discovery; 3) appointed Pls' receiver of LAN's NY assets. 11/20/84: 2d Cir rev'd, dism'd case, Cardamone, CJ: DC erred in: 1) analogy; 2) fact-finding; 3) remedy: FSIA tortious, commercial activities exceptions mutually exclusive; 4) recommended U.S. esposue Pls' claim before int'l tribunal. 5/28/85: USSC denied cert. For conclusion of case, see PL-279b/18.2.

Michael E Tigar, Lynne A Bernabei, Samuel J Buffone

See PL-279/30.1, PL-279b/18.2; PL-126/20.2

  Chile Junta
PL-618/33.4. Begay v. U.S. 591 FSupp 991 (DC AZ 1984); 768 F2d 1059 (9th Cir 1985)

1980: Pls-Navajo uranium miners, their survivors sued U.S. under Fed'l Tort Claims Act (FTCA) (28 USC §267): miners contracted lung cancer, other diseases, from radiation exposure because fed'l, state agencies did not warn of dangers of uranium mining.

• 1984: DJ held for Defs. 8/13/85: 9th Cir aff'd, Anderson, CJ: decision of Public Health Service not to warn miners came under discretionary function exception to FTCA (28 USC §2680).

  Native American Rights
PL-8/33.4. Conyers v. Reagan 578 FSupp 324 (DC DC 1984); 765 F2d 1124 (DC Cir 1985)

10/25/83: U.S. invaded Grenada. 11 U.S. Reps sued: invasion violated U.S. Const war powers clause (Art I §8, cl 2).

• 1/20/84: Green, DJ: dism'd suit on equitable discretion grounds. 6/28/85: DC Cir aff'd: issue of whether invasion unconstitutional mooted by U.S. withdrawal of combat troops by 12/15/83.

Mark Rosenbaum, William Geneco, ACLU-S CA; Margaret A Burnham, Deborah A Jackson, NCBL; Michael D Ratner, Frank E Deale, CCR; John W Garland, Michael Lasley

  Grenada Invasion
PL-7/33.4. Greenham Women Against Cruise Missiles v. Reagan 591 FSupp 1332 (SD NY 1984); 755 F2d 34 (2d Cir 1985)

12/19/79: NATO accepted U.S. cruise missiles in Great Britain. 11/14/83: Cruise missiles arrived at Greenham Common. Pls-British women, 2 U.S. Reps sued: U.S. deployment of cruise missiles in England violated int'l law; sought injunction under Alien Tort Claims Act (28 USC §1350). Pls filed extensive complaint, memos, declarations of experts.

• 7/84: Edelstein, DJ, dism'd: nonjusticiable political question. 2/8/85: 2d Cir aff'd in short opinion that did not mention int'l law: complaint

- 33.5 -
of citizen-Pls raised issues "committed" by U.S. Const "to coordinate political departments," requested relief requiring initial nonjudicial discretion; Reps-Pls claims not ripe for decision, assuming standing. 8/2/89: U.S. Air Force began removing cruise missiles from Greenham Common, to be destroyed at Davis-Monthan AFB in AZ, under U.S./USSR treaty.

Rob Hager, Enid Sterling, Diane Yale Sauter, Wes Wagnon, Diane Beaufait, Randall Padgett

See PL-355/75.6; PL-359/75.6

  Nuclear Weapons Protest
PL-290/33.5. Oneida Indian Nation v. New York 520 FSupp 1278 (ND NY 1981); 691 F2d 1070 (2d Cir 1982); 649 FSupp 420 (1988); 860 F2d 1145 (1988); cert den 110 SCt 200 (1989)

1783-84: U.S. issued Proclamation of 1783, signed Treaty of Ft Stanwix w/ Oneida Nation: announced Oneida had title to 5½ million acres. 1785, 1788: Defs purchased land under new treaties. 1978: 13,000 descendants of Oneidas, other Iroquois nations, sued for title to land: purchase violated earlier Proclamation, Treaty, Articles of Confederation; U.S. Gov't failed to protect Indians in dealings w/ NY.

• McCurn, DJ: dism'd. 2d Cir remanded in part. 11/19/86: On remand, McCurn, DJ, found for Defs: Cong had no authority under Articles of Confederation, no intent to prohibit states from purchasing Indian land. 10/31/88: 2d Cir aff'd, Newman, CJ: states did not need fed'l permission to purchase Indian land under Articles of Confederation. 10/2/89: USSC denied cert.

Arlinda Locklear, Knoxville, MD; Richard Dauphinais, Native American Rights Fund; Francis Shenadore, Oneida Tribal Law Office; Norman Dorsen, NYU Law School, 40 Washington Sq S, NY, NY 10012; Dean Braverman, Gary Kelder, Bertram Hirsch, Curtis Berkey; Robert Coulter, Indian Law Resource Center

  Native American Rights
PL-767/33.5. Frank Fools Crow v. Gullet 541 FSupp 785 (DC SD 1982); 706 F2d 856 (8th Cir 1983)

State of SD, SD Fish & Parks Dept, state park manager restricted, regulated access to Lakota, Tsistsistas Indian Nations' traditional religious ceremonial grounds in state park. Pls' spiritual leaders sued for declaration, injunction, damages: 1st Amdt (free exercise), American Indian Religious Freedoms Act (42 USC §1996), 42 USC §1983, Art 18 UDHR, Art 18 ICCPR.

• 6/25/82: Bogue, DJ, dism'd: 1) Pls failed to establish infringement of constitutionally cognizable 1st Amdt right because a) Pls did not show Defs' development, construction, regulatory actions burdened Pls' religious exercises; b) Pls' interests outweighed by compelling state interests in preserving environment, protecting park visitors' welfare, improving public access; 2) even if American Indian Religious Freedoms Act, UDHR, ICCPR applied, they did not establish legal rights beyond 1st Amdt. 5/10/83: 8th Cir aff'd per curiam.

Mario González, PO Box 334, Black Hawk, SD 57718; Russel L Barsh, Seattle, WA

  Indigenous Rights
- 33.6 -
PL-850/33.6. U.S. ex rel Chunie v. Ringrose 788 F2d 638 (9th Cir 1986)

Chumash Indian Tribe sued individuals, orgs (claiming ownership of islands), CA (claiming title to surrounding channel beds) for: unlawful trespass, conversion based on aboriginal title, atty fees (42 USC §1988): U.S. Const; 1848 Treaty of Guadalupe Hidalgo & Act, 9 Stat 631, 922 (1851), TS 207; 1790 Indian Non-Intercourse Act, 25 USC §177 (1988, derived from Act, 6/30/1834, ch 161 §12, 4 Stat 730); (PL-370/2.1); UDHR; (PL-97/2.2); (PL-96/2.1); American Convention on Human Rights; American Declaration of Rights & Duties of Man; Vienna Convention on Law of Treaties.

• 1984: Williams, DJ: granted Defs' motion to dismiss for failure to state claim. 5/5/86: 9th Cir aff'd, Fletcher, CJ: int'l law arguments need not be addressed: Pls lost rights in islands, channel beds by not filing claims under 1851 Act.

Mario González, Sidney Flores, 4 N 2d St #1350, San Jose, CA 95113

  Indigenous Rights
PL-269/33.6. Allen v. U.S. (Atomic Victims Case)

588 FSupp 247 (DC UT 1984); 816 F2d 1417 (10th Cir 1987); cert den 108 SCt 694 (1988)

1945-63: U.S. Military, Atomic Energy Commn conducted atmospheric nuclear weapons tests in NV. 1982: Nearly 1200 Pls sued U.S. under Fed'l Tort Claims Act (28 USC §1346(b)): 500 deaths, injuries.

• Jenkins, DJ: selected 24 cases for trial. 5/10/84: In 225 page opinion containing extensive scientific documentation, DJ: for Pl on 9 claims; for Def on 14; 1 claim outstanding; U.S. negligently failed to warn offsite residents of dangers of tests: increased exposure to ionizing radiation, even at low doses, yields increased risks of human cancer, leukemia; awarded Pls $15,000-$400,000. 4/20/87: 10th Cir rev'd, Logan, CJ: Gov't conducted tests w/in discretionary function exception to Fed'l Tort Claims Act. 1/11/88: USSC denied cert.

Stewart Udall, Dale Haralson, 1244 Camino de Cruz Blanca, Santa Fe, NM 87501

See PL-164/43.16; PL-268/33.6; PL-806/44.1

  Nuclear Testing Victims
PL-268/33.6. In re Consolidated U.S. Atmospheric Testing Litigation; Konizeski v. Livermore Labs 616 FSupp 759 (ND CA 1985); aff'd 820 F2d 982 (9th Cir 1987); cert den 108 SCt 1076 (1988)

1945-63: U.S. military, Atomic Energy Commn conducted atmospheric nuclear weapons tests. Early 1980s: Workers exposed to radiation during tests, their survivors filed over 40 wrongful death, personal injury suits against U.S., fed'l contractors. 10/84: Cong adopted §1631 of DoE Nat'l Security & Military Applications of Nuclear Energy Authorization Act of 1985 (42 USC §2212): tort actions against U.S.

- 33.7 -
shall be sole remedy for injuries due to radiation exposure from tests.

• 8/28/85: Schwarzer, DJ: granted Gov't motion to be substituted for contractors as sole Def; granted Gov't motion for summary judgment: Pls had no 5th Amdt claim; claims barred by discretionary function, foreign country, combatant activities exceptions to Fed'l Tort Claims Act. 6/22/87: 9th Cir aff'd, Anderson, CJ: §2212 constitutional, did not violate Art III prohibition of Congressional attempts to alter rule of decision in pending cases in favor of Gov't. 2/29/88: USSC denied cert.

Alan Sparer, Ronald Bakal

See PL-164/43.16; PL-269/33.6; PL-806/44.1

  Nuclear Testing Victims
PL-508/33.7. In re Union Carbide Corp Gas Plant Disaster, Bhopal, India, December, 1984 suits joined 601 FSupp 1035 (Jud Panel on Multidist Litigation 1985); dism'd 634 FSupp 842 (SD NY 1986); aff'd 809 F2d 195 (2d Cir 1987); cert den 108 SCt 199 (1987)

12/3/84: Methyl isocyanate gas leaked from pesticide plant in Bhopal, Madhya Pradesh, India. Officials estimated 3,800 dead, 200,000 injured; other estimates much higher. Plant owned by Union Carbide India Ltd (UCIL), operated by Indians; 50.9% of UCIL stock owned by Union Carbide Corp-U.S. multinational. 12/7/84: India arrested Corp chair Warren Anderson: criminal negligence; U.S. State Dept intervened; India released Def on $2000 bail. Victims filed 145 suits against Corp in U.S. fed'l cts. 2/6/85: Panel joined suits, assigned to SD NY.

• 3/29/85: Indian Parliament (UOI) passed Bhopal Gas Leak Disaster Act: UOI has exclusive right to represent all claimants in/outside India. 6/28/85: UOI filed consolidated complaint in SD NY. 5/12/86: Keenan, DJ, dism'd complaint: forum non conveniens (evidence, witnesses in India, treatment of UCIL as Indian nat'l), conditioned on Def-Corp accepting Indian jurisdiction, Indian ruling, discovery pursuant to U.S. rules. Pls appealed dismissal, Def cross-appealed conditions. 1/14/87: 2d Cir aff'd dismissal, rejected broad (U.S.) discovery, Corp acceptance of Indian decision w/ no remedy for denial of due process. 10/5/87: USSC denied cert.

Ward Morehouse, Bhopal Action Resource Center, 777 UN Plaza Ste 3C, NY, NY 10017

See PL-508a/85.6

  Industrial Negligence
PL-288/33.7. Albert v. Carovano 824 F2d 133; modified 839 F2d 871 (2d Cir 1987)

1986: Students peacefully occupied main admr building at Hamilton College (private) to protest admr's lack of action re S Africa divestment, racist incidents on campus. 11/14/86: College Pres suspended 12 students for 6 mths. Pls-students claimed state contract right under college's bylaws to due process h'g, sought injunction under 42 USC §§1981, 1983: refusal to afford due process to determine whether campus regs violated, punishment appropriate.

• 12/86: DJ dism'd complaint: state pendent action. 1987: 2d Cir rev'd

- 33.8 -
by divided panel. 6/28/88: 2d Cir, en banc, aff'd DC: Insufficient state involvement in private college to constitute state proceeding under §1983; grounds for proceeding under §1981 but inadequately pleaded; punishment of Pls far more severe than for racial harassment, indicating racial discrimination by admr. Pls graduated before decision.

Victor Rabinowitz

  Apartheid
PL-182/33.8. Comm of U.S. Citizens Living in Nicaragua v. Reagan 859 F2d 929 (DC Cir 1988)

9/23/86: Pls (including Benjamin Linder) sued for declaratory, injunctive relief for physical, psychological, economic injuries from acts of U.S.-backed forces attacking Nicaragua: Def's aid to those forces violates 6/27/86 judgment of ICJ in (PL-43/5.2), which is binding on U.S. ( Art 94, PL-370/2.1); Def's action violated Pls' 5th Amdt rights to life, liberty, due process; Def violated APA (5 USC §701). Pls sought, conducted extensive discovery, contributed information to Iran/contra Congressional h'gs, eg, grounds for Richard Secord paying for Oliver North's security fence. 11/5/86: Pls filed motion for summary judgment; Def filed motion to dismiss.

• 2/8/87: Richey, DJ, dism'd: nonjusticiable political questions. 10/14/88: DC Cir aff'd, Mikva, CJ: inappropriate to preclude suit on political question doctrine; treaties may be overridden by subsequent stats; ICJ decisions do not confer rights on individuals as do some aspects of int'l law; alleged violations of int'l law, funding of contras not due process violations.

Jules Lobel, David Cole, Michael Ratner, CCR; Ted Lieverman, Jim Klimaski

See PL-43/5.2; PL-275/23.13

  Contra Aid
PL-221/33.8. Lowry v. Reagan 676 FSupp 333 (DC DC 1987)

11/7/73: Cong enacted War Powers Res (WPR) (50 USC §1541) over Pres Nixon's veto, requiring Pres to submit written report to Speaker of House, Sen Pres Pro Tem w/in 48 hrs of introducing U.S. armed forces into hostilities/imminent hostilities. 7/22/87: U.S. warships began to escort oil tankers in Persian Gulf threatened by Iran-Iraq war. 8/6/87: 110 U.S. Reps, 3 U.S. Sens filed suit to force Pres to send written report to Cong under WPR.

• 12/18/87: Revercomb, DJ, dism'd: suit barred by political question doctrine; no private right of action under WPR; issue would be ripe for judicial review if Cong passed joint res stating hostilities existed for purposes of WPR, Pres still refused to file required reports.

Alan B Morrison, David C Vladeck

  War Powers Resolution
PL-267/33.8. Dellums v. Reagan (ND CA #C87 2587 JPV)

5/87: Pls-members of Cong sued Pres under U.S. Const Art I §8 cl 11 seeking declaratory, injunctive relief to preclude presidential first use

- 33.9 -
of nuclear weapons absent nuclear attack, declaration of war.

• 3/29/88: Vukasin, DJ, dism'd: 444 US 996 (1979).

Anne Flower Cumings; Thomas A Robertson, 2740 Pierce St, San Francisco, CA 94123; William A Brockett; Bay Area LANAC; Lawyers Comm on Nuclear Policy

  Nuclear Weapons Protest
PL-413/33.9. Littlewolf v. Hodel 681 FSupp 929 (DC DC 1988); 877 F2d 1058 (DC Cir 1989); cert den 110 SCt 837 (1990)

1867: U.S.-Chippewa Treaty set aside 6 million acre White Earth Reservation in MN "in perpetuity." 1906: Cong passed Clapp Amdt reducing reservation to 50,000 acres. 1978: MN Sup Ct: Clapp Amdt unconstitutional; 100,000s of acres of reservation improperly taken, title belonged to 24,000 Chippewa heirs. 1986: Cong enacted White Earth Land Settlement Act over Chippewa objections: effectively extinguished all White Earth land claims, compensated at far below market rates. 3/87: White Earth heirs filed class action: White Earth Settlement Act unconstitutional, BIA failed to carry out duties.

• 3/17/88: Richey, DJ: rejected Pls' motion for summary judgment. 6/30/89: DC Cir aff'd, Buckley, CJ: Pls adequately compensated for land. 1/16/90: USSC denied cert.

Michael Ratner, David Cole, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Mahlon Perkins Jr, Alan Weinschel, Bruce Rich, Steven Schwartz, Melissa Salten

See PL-462/65.1

  Native American Rights
PL-321/33.9. Marshall Islands Citizens v. U.S. (U.S. Claims Ct 1986); Pub Law 100-466; 859 F2d 1482 (Fed Cir 1988)

1946-58: U.S. conducted 66 atomic, hydrogen bomb tests at Bikini, Eniwetok, Marshall Islands. 3,000 downwind Marshallese sued: $5 billion+ against U.S. for health/property damage. U.S. finalized Compact of Free Assn maintaining U.S. control of Micronesian states up to 100 yrs, granting U.S. Gov't immunity from prosecution.

• Harkins, Claims Ct J: ruled for Def. Pls appealed. 9/27/88: Pres signed Pub Law 100-466: $90 million to resettle Bikini people, conditioned in part on voluntary dismissal of appeal. 10/19/88: Fed Cir, Nies, CJ: dism'd w/ prejudice.

Abram Chayes, David R Anderson, E Cooper Brown, Anne-Marie Burley, Richard F Gerry, Fred Baron, Lloyd M Cutler, Andrew B Weissman, Richard L Weiner, Jonathan M Weisgall

  Nuclear Testing Victims
PL-443/33.9. Ku Klux Klan v. Kansas City 723 FSupp 1347 (WD MO 1989)

1987: Pl sought to broadcast white supremacist program on public access cable channel. City Council voted to eliminate channel. 1/89: Pl sued: violation of 1st Amdt.

• 1989: Ct denied Def's motion to dismiss. Case settled: Public access channel restored, open to all viewpoints.

  Ku Klux Klan
- 33.10 -
PL-249/33.10. National Lawyers Guild v. Brownell, U.S. Atty Gen'l (NLG v. FBI)

(SD NY 77 Civ 999 PKL); 43 Guild Practitioner 51 (1986)

3/1/77: NLG sued for $56 million damages from FBI's political surveillance/attempted disruption of org from 1940-75. Pl's discovery of FBI files found more than 300,000 pages of material: FBI gave information to state bar character comms making it difficult, impossible for some Guild members to be admitted; affected chances for law teaching jobs.

• 10/13/89: Parties entered Stipulation and Order of Settlement and Dismissal w/out damages, atty fees: FBI admitted activities, did not admit wrongdoing, agreed never to use information, sealed at Nat'l Archives until 2025.

Michael Krinsky, Rabinowitz, Boudin, Standard, Krinsky, & Lieberman, 740 Broadway at Astor Pl, NY, NY 10003

  Political Surveillance
PL-342/33.10. In re Extradition of Mahmoud El-Abed Ahmad; Ahmad v. Wigen (Ramallah Military Ct #4247/86); (ED NY #87-0551-M, 1988); rev'd 706 FSupp 1032 (1989, as corrected thrice); habeas den 726 FSupp 389 (1989); aff'd 910 F2d 1063 (2d Cir 1990)

Def-Palestinian born in West Bank, never Israeli citizen, traveled, became naturalized U.S. citizen; wife, 2 children remained in West Bank. 4/12/86: Bus attacked in West Bank, Occupied Territories; driver killed, passenger wounded. 5/86: Def left Israel. 9/86: 2 alleged accomplices tried by military ct: made contradictory statements re Def's actions; convicted of crimes, membership in Fatah Abu Nidal. U.S. surveilled Def in Mexico, Venezuela. 5/3/87: Israel charged Def: murder, attempted murder/arson, conspiracy. Venezuela arrested/interrogated Def w/ Israeli, U.S. authorities: denied access to atty, friends, no warning, beaten, forced to sign statement admitting membership in Abu Nidal. 5/5/87: Israel lacked extradition treaty w/ Venezuela, sought extradition in U.S. ct. Def in U.S. custody at Caracas Airport before midflight "arrest."

• 12/16-17/87, 2/22/88: Caden, U.S. Magis, held h'gs, Def conceded identity. 6/17/88: Magis: 1) found probable cause (although statements signed by accomplices not written in their language); but 2) Israeli Pen Law 5737-1977 (trial for act committed outside Israel) exceeds scope of parallel U.S. law (18 USC §2331): extradition need not be granted; 3) after detailed review of history, expert testimony of Ambassador Louis H Fields, Prof William T Mallison, preponderance of evidence shows acts of "political character" for Palestinian goals to acquire land, governance, not Def's personal objective; Def has significant familial/geopolitical ties to area: internationally recognized political offense exception applies (see U.S. Declaration of Independence); 4) cannot certify Def for extradition on jurisdictional grounds: Def brought to U.S. unlawfully (perhaps kidnapped); Venezuela did not complain, Def cannot assert int'l law bars extradition; but U.S. cannot extradite U.S. citizen w/ no assurance of due process; rights of U.S. citizen under U.S. Const take precedence over extradition treaty. U.S. refiled extradition request. 2/2/89: After

- 33.11 -
h'g, Korman, DJ: Magis erred in fact/law: crime not political; extradition to U.S. legal; granted certification for extradition; corrected 2/14, 9/8, 10/3/89. 9/26/89: After de novo review, Weinstein, DJ: upheld Korman: Def's fears re justice of Israeli cts, mistreatment of prisoners groundless; dism'd habeas petition. 8/10/90: 2d Cir aff'd, Van Graafeiland, CJ: DC erred in reviewing Israeli/Palestinian history, examining Israeli judicial system, receiving expert/fact testimony, documentation: purview of exec branch: " ... Secretary [of State] never has directed extradition in the face of proof that the extraditee would be subjected to procedures or punishment antipathetic to a federal court's sense of decency."

Ramsey Clark, Peter Meadow

  Palestinians
PL-463a/33.11. U.S. v. Oakland; Nuclear Free Oakland, Steve Bloom (ND CA #C-89-3305 JPV); 958 F2d 300 (9th Cir 1992)

11/8/88: Def-City voters passed Nuclear Free Zone Act (PL-463/34.4). 9/89: U.S. sued in DC challenging Act. 11/89: Hyundai Merchant Marine notified Def-City of planned 1/90 shipment from DoE to S Korea of 21 tons of uranium hexafluoride through City. 12/89: Def-City Council held public h'g, approved res: seeking more information from U.S. regulatory agencies, declining to approve transportation route due to ongoing earthquake-related local emergency, instituting local safeguards against transportation during rush hour. 12/89: Nuclear Free Oakland (initiative sponsor), Steve Bloom (author) moved to intervene in DC.

• 8/24/90: Vukasin, DJ: denied intervention; granted U.S. summary judgment; declared unconstitutional portions of Act that: prohibit nuclear weapons work; regulate use, transportation of nuclear weapons, materials; prohibit contracting w/, investing in nuclear weapons makers; require annual reports by persons engaged in activities covered by Act in violation of war powers clause or preempted by Atomic Energy Act, other fed'l law; failed to rule on motion for summary judgment. Oakland City Council voted not to appeal decision. 2/14/91: Bloom/Nuclear Free Oakland filed appeal on merits of provision restricting investment in/purchasing from nuclear weapons makers, failure to allow intervention. 3/9/92: 9th Cir, Schroeder, CJ: dism'd for lack of jurisdiction.

John Burroughs, Western States Legal Foundation, 1440 Broadway Ste 420; Brad Seligman, 1300 Clay St, 11th Fl; both Oakland, CA 94612; amicus: CCR, 666 Broadway, 7th Fl, NY, NY 10012-9985

See PL-463/34.4; PL-904/58.2

  Nuclear Free Zone
PL-368c/33.11. In re Linda Backiel (ED PA 1990); 906 F2d 78 (3d Cir 1990)

1985: Elizabeth Duke disappeared while awaiting trial for attempt to blow up Capitol (see PL-368b/23.7). Pet-advisor to Duke, atty for Puerto Rico independence activists, other political clients, acknowledged speaking to Duke. 3/90: Grand jury subpoenaed Pet: U.S. Atty claimed Pet had seen note from Duke re: intent to flee. Pet

- 33.12 -
refused to testify about note.

• 3/90: Weiner, DJ: Pet in civil contempt; sentence: jail until Pet testified, grand jury disbanded. 6/11/90: 3d Cir rev'd, remanded for public h'g. USSC denied cert. 12/10/90: Weiner, DJ: issued contempt order. Def began serving time, stating protest of grand jury violation of 1st, 6th Amdts. 6/10/91: DC released Pet 9 days before grand jury scheduled to disband.

Morton Stavis, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Arthur Kinoy, Leonard Weinglass, NY; Patricia Pierce

See PL-368b/23.7

  Puerto Rico Independence
PL-358a/33.12. Hasenfus v. Secord 797 FSupp 958 (SD FL 1989); aff'd 962 F2d 1556 (11th Cir 1992)

10/86: U.S. cargo plane shot down by Nicaraguan troops in southern Nicaragua led to exposure of secret supply network for Nicaraguan contras. Pl-pilot only survivor, jailed 3 mths by Sandinistas. Pl, Pl's wife, family of Wallace Sawyer-crew member killed when plane shot down, sued Def-former U.S. Air Force gen'l who helped Oliver North sell weapons to Iran, use proceeds to supply contras, alleged Def-Southern Air Transport misled crew of cargo plane, negligently used aircraft w/out adequate safety equipment, sought $3.4 million damages.

• 8/27/90: Atkins, DJ: instructed jury to consider only request for reimbursement for back pay, atty fees, travel expenses, not punitive damages, damages for alleged negligence, misrepresentation. Jury held against Pls: Pl-pilot independent contractor knew risks involved in illegal mission. 6/15/92: 11th Cir aff'd, Hatchett, CJ: Def not liable for damages from covert air missions; Pls Def's agents; entire action joint venture.

David M Kirstein, Beckman & Kirstein, 2445 M St NW Ste 340, Washington, DC 20037-1420; Dwight Sullivan; Samuel B Reiner; Thomas R Spencer; Michael A Pasano

See PL-358/70.4; PL-275/23.13

  Iran/Contragate
PL-545/33.12. Dellums v. Bush 752 FSupp 1141 (DC DC 1990)

11/19/90: Pls-53 Reps, 1 Sen requested injunction to prevent U.S. Pres from initiating attack against Iraq w/out declaration of war, Congressional concurrence; such action would deprive Pls of Congressional voice to declare war under Const, Art I §8(11). DoJ: 1) nonjusticiable political question; 2) Pls lack standing; 3) claim violates canons of equity jurisprudence; 4) allocation of war-making powers between branches not ripe for decision.

• 12/13/90: Greene, DJ, found standing: Cong members have interest in protecting right to vote in matters entrusted to them by Const; denied motion: question not ripe where majority of Cong had not expressed opinion Pres infringed on constitutional power to declare war.

Michael Ratner, CCR, 666 Broadway, 7th Fl, NY, NY 10012

  Gulf War
- 33.13 -
PL-804/33.13. Scott C Tyler v. Berodt (SD IA 1989); 877 F2d 705 (8th Cir 1989); cert den 110 SCt 723 (1990)

1983: Defs intercepted Pl's conversation on cordless phone; suspected criminal activity; contacted Def-Sheriff's Dept, which urged them to monitor, record conversations; did not obtain ct order. 1985: Pl arrested: conspiracy, theft. At trial, Pl's motion to suppress granted; convicted; sentence: 10 yrs. 7/31/85: Pl sued eavesdropping neighbors, cty sheriff's office under 42 USC §1983: violations of 4th, 14th Amdts, Wiretap Act (18 USC §§2510-2520 (1982)), Communications Act of 1934 (47 USC §605).

• 1986: Vietor, DJ: granted Defs' motion for summary judgment. 8/89: 8th Cir aff'd: cordless phone transmissions not wire communications; Pl had no reasonable expectation of privacy on cordless phone. 1/8/90: USSC denied cert.

Randall C Wilson, 446 Insurance Exchange Bldg, Des Moines, IA 50309-2321; Steve Shapiro, ACLU, 132 W 43rd St, NY, NY 10036

  Privacy Rights
PL-577/33.13. Steven Farsaci v. George Bush 755 FSupp 22 (DC ME 1991)

1/91: Pl filed class action: 1) Pres' de facto declaration of war against Iraq, w/out Cong approval, violated war powers clause, U.S. Const Art I §8, cl 11; 5th Amdt; 2) sought injunction prohibiting Pres from commencing military offensive against Iraq w/out Cong approval; 3) injury from Pres' actions: higher fuel, travel costs. Def moved to dismiss: Pl lacked standing, nonjusticiable political question.

• 1/11/91: Carter, DJ, denied injunction: 1) Pl could not exhibit likelihood of success on merits, public interest might be adversely affected by granting injunction; 2) Pl standing unlikely: increased fuel, travel costs not peculiar to Pl, not consequence of alleged constitutional violation; 3) action not ripe: Cong deliberating Pres' actions.

Valeriano Diviacchi, Boston, MA; Richard S Cohen, Portland, ME

  Gulf War
PL-603/33.13. Walter Pietsch v. George Bush 755 FSupp 62 (ED NY 1991)

1/91: Pl charged Pres w/ violating Const: 1) converting status of armed forces in Persian Gulf from defensive to offensive; 2) calling up reserve units to active duty status, transferring forces from Europe to Gulf for purpose of launching war of aggression; 3) promulgating military orders providing armed forces in Gulf w/ capability to launch war against Iraq; 1/12/91 Cong Res re authorization of use of U.S. armed forces coerced, thus ineffective; sought preliminary injunction restraining Defs from initiating acts of war against Iraq, ct determination re whether Pres would exceed lawful powers if ordered commencing offensive military action; alleged standing as taxpayer: in illegal war he would be accessory to murder against his will.

• 1/16/91: Spatt, DJ, dism'd: Pl lacked standing, failed to show he suffered distinct, palpable injury in fact resulting from Gulf activities; taxpayer standing invoked only to challenge establishment clause,

- 33.14 -
taxing & spending clause of Const ( 885 F2d 1020); Pl's contention re accessory to murder too abstract.

Walter G Pietsch, Freeport, NY, pro se

  Gulf War
PL-783/33.14. Koohi v. U.S.; Bailey v. Varian Assoc 976 F2d 1328 (9th Cir 1992)

7/3/88: U.S. naval vessel shot down Iranian civilian airliner, 290 died. Pl-relatives of deceased sued.

• 1990: Henderson, DJ, dism'd. Pl appealed. Def's contended: nonjusticiable political question. 1992: 9th Cir aff'd, Reinhardt, CJ: 1) suit justiciable; 2) Fed'l Tort Claims Act (28 USC §1346) claim barred by wartime combat activities exception, although no formal declaration of war; 3) similar exception under Public Vessels Act; 4) action against defense contractors preempted by fed'l law, precluded where imposition of liability produces same effect sought to be avoided by FTCA; 5) Alien Tort Claims Act (28 USC §1350) does not operate as U.S. sovereign immunity waiver; rejected political question doctrine relying on 175 US 677 (1900) (enemy aliens injured by U.S. Navy action during time of war may be entitled to adjudication in U.S.).

Bruce A Bailey, 1800 Trousdale Dr, Burlingame, CA 94010

  Military Responsibility
PL-788/33.14. Goldstar (Panama) SA v. U.S. (ED VA 1991); 967 F2d 965 (4th Cir 1992)

12/20/89-1/10/90: U.S. troops failed to maintain order following invasion of Panama, resulting in damage to Pl's companies. 5/23/91: Pl sued: U.S. Gov't liable for damages to property of Panamanian businesses. 8/2/91: U.S. moved to dismiss: lack of subject matter jurisdiction.

• 9/6/91: Bryan, DJ: dism'd. 6/16/92: 4th Cir aff'd, Ervin, CJ: no subject matter jurisdiction: Alien Tort Claims Act (28 USC §1346 (b)) does not waive U.S. sovereign immunity; rejected claim under 1907 Hague Convention: treaty not self-executing, no provision for adjudication in U.S., waiver is discretionary.

Douglas B McFadden, James A Kline, Washington, DC

  Military Responsibility
PL-186/33.14. Tony Avirgán v. Hull (Christic Institute)

116 FRD 591 (SD FL 1987); 691 FSupp 1357 (1988); fines imposed 125 FRD 189 (1989); 705 FSupp 1544 (1989); 932 F2d 1572 (11th Cir 1991); cert den 112 SCt 913, 113 SCt 405 (1992)

5/30/84: Contra leader Eden Pastora held press conference in La Penca, Nicaragua: bomb killed 8, injured more than 12. 5/29/86: Pls-2 U.S. journalists present at bombing sued for declaratory relief under RICO to protect journalists' rights to conduct business, injunctive relief, $22.5 million damages: bombing was act of conspiracy to violate U.S. Neutrality Act (18 USC §§960, 953-959, 968) by Def-U.S. contra supporters/leaders by establishing "Southern Front" against Nicaragua; recruitment, training, financing, arming, equipping, launching of

- 33.15 -
contras took place in U.S.; Defs violated U.S. Arms Export Control Act (22 USC §2778), U.S. banking laws while laundering funds, U.S. drug control laws, anti-terrorist laws. Pls' extensive discovery uncovered facts significant to Iran/contra h'gs; made material available to Cong Select Comm members.

• 6/23/88: King, DJ: dism'd. 7/88: Defs filed motion seeking atty fees, punitive damages. 7/28/88: FBI admitted it seized Pls' notes. 2/2/89: King, DJ: suit "frivolous" under FRCivP 11, 28 USC §1927; ordered Pls, Pls' attys to pay $1,034,500 legal fees to Defs, ct costs. 6/18/91: 11th Cir aff'd dismissal, fines. 1/13, 11/2/92: USSC denied cert.

Daniel Sheehan, Christic Institute, 1324 N Capitol St NW, Washington, DC 20002

See PL-217/52.1

  Contra Aid
PL-263/33.15. DeNegri v. Chile (DC DC Civ #86-3085 1986); WL 91914 (1992)

7/2/86: Chilean militiamen set fire to Chilean nat'l in Santiago student protest. 7/6/86: Victim died in hospital. 11/10/86: Victim's mother sued Chilean Gov't, armed forces in U.S.: torture, summary execution, cruel/inhumane treatment, violation of (PL-370/2.1), UDHR, OAS Charter, American Convention on Human Rights, (PL-97/2.2), (PL-101/2.3); all executed before FSIA. Defs moved to dismiss: lack of subject matter jurisdiction, 109 SCt 683 (1989), (PL-305/32.5).

• 4/6/92: Penn, DJ, dism'd: no exceptions to FSIA except those specified by Act.

Peter Weiss, Michael Ratner, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Donald Glascoff, Douglas Donoho, Amy Griffin, Marjorie Appel

See PL-19/31.1

  Chile Junta
PL-258/33.15. Patricia Axelrod v. Reagan (DC DC No 87-2408)

9/1/87: 3 Pls residing near U.S. military bases sued seeking: declaration military violated NEPA (42 USC §§4321-4370), APA (5 USC §§500-706) by failing to prepare EIS re hazards of electromagnetic radiation to ordnance (HERO); injunction requiring military to: safeguard weapons from HERO; prepare EIS before developing HERO-vulnerable weapons; stop Navy homeporting plans. Pls submitted affidavits of experts: Dr Theodore Taylor, physicist; Dr Ernest Steinglass, medical physicist; Daniel Curtis, military electronics engineer; Robert Aldridge, weapons designer.

• 4/88: Hogan, DJ: ordered Navy to shut down electromagnetic pulse simulator near Washington until it could show safety. 5/25/88: Hogan, DJ: granted Defs' motion for protective order staying discovery until ruling on Defs' motion to dismiss. 3/30/92: Dism'd.

Joel Joseph, HERO Environmental Law Project, 5337 42nd St NW, Washington, DC 20015

  Nuclear Weapons Protest
- 34.1 -
e. CASES PENDING

PL-534/34.1. U.S. v. Leonard Peltier (DC ND 1977); 585 F2d 314 (8th Cir 1978); cert den 440 US 945 (1979); 553 FSupp 886, 890 (1982); 731 F2d 550 (1984); 609 FSupp 1143 (1985); 800 F2d 772 (1986); cert den 484 US 822 (1987); (DC KS #90-3528-R, 1991); (8th Cir 1992)

6/26/75: 2 Special FBI Agents killed on Pine Ridge Indian Reservation, SD. 2/7/76: Canada arrested, extradited Def to U.S. Def, 3 others charged: 1st degree murder (18 USC §§2, 1111, 1114). Defs Robideau, Butler jointly tried by jury; acquitted. Gov't dism'd charges against Def-Eagle. 1977: In jury trial before Benson, DJ, evidence against Peltier primarily circumstantial. Jury convicted Def on both counts; sentence: life imprisonment on both, to run consecutively. Def appealed: prejudicial evidence introduced, Gov't tainted case by asserting Def was shooter rather than aider/abettor, denial of due process. 9/14/78: 8th Cir aff'd, Ross, CJ: evidence of weapons linked ballistically to crime, Def's outstanding arrest warrant, flight, resistance to arrest were admissible. 4/5/79: USSC denied cert. Def obtained FBI teletype dated 10/2/75 under FOIA: FBI concealed reports negating key ballistics evidence used in trial; prosecution, DJ had working relationship. 4/82: Def filed motion to vacate judgment, for new trial (28 USC §2255). 12/15/82: Def filed motion under 28 USC §§144, 455 seeking to have judge disqualified: previous conduct; derogatory remarks about Def, Native Americans.

• 12/29/82: Benson, DJ, denied motion to disqualify: not timely filed, did not allege facts indicating actual bias. 12/30/82: Benson, DJ: denied motion to vacate/for new trial w/out conducting evidentiary h'g. 4/4/84: 8th Cir per curiam remanded for evidentiary h'g re meaning of FBI teletype, whether nondisclosure violated 337 US 83 (1963), requiring disclosure only of evidence favorable to accused, material to guilt/punishment. 10/84: Evidentiary h'g. 5/22/85: Benson, DJ, denied motion to vacate: teletype, evaluated in context of entire record, would not have affected outcome of trial. 9/11/86: 8th Cir aff'd, Heaney, CJ: while there is possibility jury would have acquitted had FBI records been available, test in 105 SCt 3375 (1985), requires ct be convinced jury probably would have reached different result. 10/5/87: USSC denied cert. 12/3/90: Def filed habeas petition in DC KS: unfairly tried as principal: U.S. Gov't admitted later they could not prove who actually fired shots killing FBI agents. 2/12/91: Rogers, DJ: granted U.S. motion to transfer to DC ND. 11/92: Appeal argued in 8th Cir; pending.

William Kunstler, 13 Gay St, NY, NY 10001

  Native American Rights
PL-116/34.1. Siderman v. Argentina (CD CA No CV 82-1772, 1984); 965 F2d 699 (9th Cir 1992); cert den 113 SCt 1812 (1993)

3/76: Pls-businessman tortured by Argentine military officials, wife, children, co-owners of large holdings expropriated by junta, sued for

- 34.2 -
recovery for torture, economic/property losses, religious discrimination.

• 9/28/84: Takasugi, DJ: act of state doctrine bars claims for economic losses; entered $2.6 million default judgment to Pl, $100,000 to wife for torture. Defs filed for relief of judgment. 1/21/85: ACLU Foundation, Human Rights Advocates filed joint amicus brief in support of Pls' opposition to Defs' motion: trial ct's judgment in conformity w/ int'l law, Alien Tort Claims Act (28 USC §1350), (630 F2d 876; PL-19/31.1); Pls have right to sue Argentina; FSIA §§1605-1607 does not negate int'l law obligation to provide Pls w/ judicial remedy for torture by Argentina. 3/7/85: DJ vacated judgment, dism'd suit: FSIA, 28 USC §§1330, 1602-11. 5/22/92: 9th Cir rev'd, remanded, Fletcher, CJ: 1) expropriations: DC must pass threshold, establish jurisdiction prior to deciding claims; burden of proof on Def asserting act of state doctrine ( 892 F2d 1432, PL-428/30.9; 862 F2d 1355, PL-298/30.8), which must be considered in light of FSIA commercial activity, int'l takings exceptions (28 USC §§1605(a)(2), (3)); 2) torture: int'l law principle of jus cogens ( 672 FSupp 1531, PL-285/30.8; PL-101/2.3) appears to supersede sovereign immunity, but USSC opinion in (109 SCt 683, PL-305/32.5) requires all exceptions to be contained w/in FSIA; UDHR not treaty, (PL-370/2.1) is treaty, but does not contain remedies to individuals for violations; Def implicitly waived immunity by "deliberately involv[ing] U.S. courts" in "efforts to persecute" Pl (28 USC §1605(a)(1). 4/5/93: USSC denied cert. Pending.

Paul L Hoffman, Patrick Connor, Los Angeles, CA; Frank C Newman, Boalt Law School, U of CA, Berkeley, CA 94720; Michael Bazyler, Scott Wellman, ACLU

  Argentine Junta
PL-411/34.2. Patricia Thomas v. Capital Security Services 110 FRD 402; 812 F2d 984 (5th Cir 1987); 836 F2d 866 (1988)

4/7/86: While Pl's unsuccessful civil rights appeal pending, Def moved for award of atty fees under FRCivP 11, civil rights stats 28 USC §1927, 42 USC §2000e-5(k).

• 6/10/86: Barbour, DJ: denied motion. 3/20/87: 5th Cir, Hill, CJ, aff'd as to civil rights stats; vacated, remanded. 1/21/88: 5th Cir, en banc: aff'd as to civil rights stats; vacated, remanded as to denial of atty fees.

Margaret Carey, CCR, 666 Broadway, 7th Fl, NY, NY 10014

  Attorney Fees
PL-621/34.2. Cowboy and Indian Alliance v. Honeywell, U.S. Forest Service, Dept of Interior, Bureau of Land Management, DoD Sec'y (DC SD No CIV 87-3038)

2/87: Def purchased 6200 acres in Hell's Canyon, SD to develop munitions-testing site. Pls-alliance of local ranchers/Indians feared testing of shells coated w/ depleted uranium would harm environment, lower land values, desecrate Sioux holy land. 6/30/87: Pls sued Defs Honeywell, 12 Gov't agencies: violation of NEPA (1969), 42 USC §4321, sought injunction against Def-Honeywell's testing, ct order prohibiting Def-Gov't from issuing permits to run testing site until Def-Honeywell completed EIS. 7/27/87: Def-Gov't moved to change venue from C Div to W Div of DC SD. 8/3/87: Defs SD Dept of Commerce & Regulation,

- 34.3 -
SD Highway Patrol, SD Dept of Water & Natural Resources, SD Bd of Minerals & Environment moved to dismiss.

• 8/28/87: Porter, DJ: granted change of venue. 8/87: Def-Honeywell postponed testing for 2 mths. 10/2/87: Battey, DJ: denied Pl's motion that he recuse himself for bias. Pending.

Andrew B Reid, 745 N River St, Hot Springs, SD 57747

  Nuclear Weapons Test Ban
PL-237/34.3. Aidi v. Yaron 672 FSupp 516 (DC DC 1987)

1982: Hundreds of civilians killed during Israeli invasion of Lebanon. 1983: Israeli Commn implicated Israeli Major Gen'l Amos Yaron in massacres. 7/21/86: Israeli gov't named Yaron Defense Attache to U.S. 5/4/87: Survivors, victims' relatives sued for damages: "wrongful torture and murder," accused Yaron of complicity in killings, war crimes (disallowing diplomatic immunity).

• 8/28/87: Johnson, DJ, dism'd: issue of exception to diplomatic immunity for war criminals must be decided in criminal trial, not tort action. Appeal pending.

Linda Huber, 813 N Carolina Ave SE, Washington, DC 20003

  War Crimes
PL-294/34.3. Jenny Manybeads v. U.S. (Big Mountain)

(DC DC 1988); 730 FSupp 1515 (DC AZ 1989); (9th Cir 1991)

1974: Cong passed Navajo-Hopi Land Settlement Act (Pub Law 93531 (1974), 25 USC §640d, 88 Stat 1712) mandating removal of 15,000 Navajo from portion of Hopi-Navajo "Joint Use Area" near Big Mountain, AZ: to open area for uranium, coal mining. 1/26/88: Pls-Navajo Nation members sued on behalf of approximately 2500 Navajo facing forced relocation: violated 1st Amdt free exercise, 5th Amdt equal protection, (PL-370/2.1), (PL-364/2.1), (18 USC §1091, PL-365/50.5); sought injunction halting relocation.

• 3/22/88: Gesell, DJ: removed case to AZ on Def's motion. 10/20/89: Carroll, DJ: denied Pls' motion for preliminary injunction, granted Def's motion to dismiss: Navajo have no 1st Amdt right to remain on property held in trust by U.S. for Hopi; not self-executing. 10/5/91: 9th Cir referred to fed'l mediator. Mediation ongoing. 7/7/92: Trial re how much of 65,000-100,000 acres to partition, award to Hopi. Pending.

Terry Gross, 740 Broadway, 5th Fl, NY, NY 10003; Lee Brooke Phillips, Big Mtn Legal Office, PO Box 1509, Flagstaff, AZ 86002; expert witness: John Woods, anthropologist

See PL-133/43.8

  Native American Rights
PL-606/34.3. Re Robert Wells and Henry Bortman (ND IL, E Div #89 GJ 1044)

1989: Threat letter sent to U.S. Atty in Chicago, printed on phony stationery of John Brown Anti-Klan Comm, nat'l anti-racist group.

- 34.4 -
7/20/89: Grand Jury investigating letter subpoenaed Wells-Comm member, Bortman-former member, AIDS activist, whose names appeared on Comm's post office box rental form. Grand Jury also issued subpoena duces tecum requesting Comm literature, docs, which were readily available in bookstores, libraries.

• 7/21/89: Defs submitted motion to quash both subpoenas: issued as tool of political oppression: FBI Special Agent Larsen admitted letters appeared phony, subpoenaed docs valid exercise of Defs' 1st Amdt rights, publicly available. Pending.

Jan Susler, 343 S Dearborn Ste 1607, Chicago, IL 60604

  Free Speech
PL-463/34.4. Issakides v. Oakland (ND CA #C 89-1477 JPV)

11/8/88: Voters passed Nuclear Free Zone Act (Measure T); prohibiting, in city, production, storage of nuclear weapons; regulating transportation of such weapons/hazardous radioactive materials; prohibiting contracts w/ nuclear weapons makers (NWM) unless, after public h'gs, city council finds no reasonable alternative exists; prohibiting investing in NWM; requiring reports on nuclear weapons work; assessing fees to implement act from NWM. Oakland City Council majority expressed opposition to Act. Pls-office equipment corp selling IBM typewriters, physicist for Defense Nuclear Agency, city pensioner, hazardous radioactive waste transporter sued for declaratory judgment, TRO, injunction under 28 USC §§1331, 2201, 2202: 1) U.S. has exclusive authority over nat'l defense-U.S. Const, Art I §8 (11-14), Art IV §4; Armed Services Procurement Act, 10 USC §2301; Atomic Energy Act, 42 USC §2011; Arms Control & Disarmament Act, 22 USC §2551; Exec Order #12356; Hazardous Materials Transportation Act, 49 USC §1821, 49 CFR §177.825(b)(1)(i); 2) prohibiting investment is undue burden on interstate commerce in stocks, etc, violates CA Const Art XVI §17 re pension system investments. 8/2/89: City sought jury trial.

• Pending.

City Atty Jayne N Williams; Peter J Busch, 3 Embarcadero Center, 7th Fl, San Francisco, CA 94111

See Oakland, PL-463a/34.4, PL-904/58.2

  Nuclear Free Zone
PL-422/34.4. Philippines v. Westinghouse Electric Corp 714 FSupp 1362 (DC NJ 1989); 132 FRD 384 (1990); 774 FSupp 1438, 139 FRD 50 (1991); 949 F2d 653 (3rd Cir 1991); 951 F2d 1414 (amended 1992); 782 FSupp 972 (1992); 821 FSupp 292 (1993)

1978: Securities & Exchange Commn (SEC) began investigating Def for alleged illegal payments to Pl to obtain contract to build $2.3 billion nuclear power plant on Bataan. 1986: DoJ began similar investigation. 9/89: Pl sued for damages: Def bribed ex-Pres Marcos w/ $30 million "consultant fees"; engaged in massive corruption in plant construction. Def moved to stay pending arbitration pursuant to contract, Fed'l Arbitration Act, 9 USC §3.

• 5/18/89: Debevoise, DJ: granted stay of 13 counts w/ Geneva

- 34.5 -
arbitrators, where they remain pending; denied stay of Count 3 (tortious interference w/ fiduciary duties), Count 8 (conspiracy to interfere w/ fiduciary duties). Hedges, Magis, on discovery: Def waived right to assert work-product, atty-client privileges. 9/14/90: Debevoise, DJ: dism'd Def's appeal. 12/19/91 (amended 4/8/92): 9th Cir aff'd, Becker, CJ: Def waived work-product, atty-client privileges by revealing docs, to DoJ, SEC: once Pl has docs, no way to reverse harm if error; 2) 9th Cir has no jurisdiction to review Def's request for writ of mandamus ordering Pl, Nat'l Power Corp to turn over docs shared w/ DoJ: new trial can be ordered if Def's request is later ruled proper. 5/5/93: At trial, Debevoise, DJ: denied Pl's motion to present punitive damages claims to jury: Philippine penal sanctions unenforceable in NJ ct. Pending.

Alan Naar, Greenbaum, Rowe & Smith, PO Box 5600, Woodbridge, NJ 07095; David J Cynamon, Shaw, Pittman & Potts, 2300 N St NW, Washington, DC 20037

  Ferdinand Marcos
PL-314/34.5. Linder v. Adolfo Valero-Portocarrero 747 FSupp 1452 (SD FL 1990); 963 F2d 332 (11th Cir 1992)

4/28/87: U.S.-backed Nicaraguan contras killed Benjamin Linder-U.S. engineer building dam in Nicaragua. 4/20/88: Linder family sued contra leaders living in FL for $49 million compensatory, punitive damages: summary execution, battery, torture, cruel/inhuman treatment under int'l law, 1st, 2d Geneva Conventions, FL Wrongful Death Act. Defs filed motion to dismiss: injuries occurred in war.

• 9/17/90: Marcus, DJ, dism'd: nonjusticiable political questions. 6/17/92: 11th Cir rev'd, remanded, Dyer, CJ: suit not barred by political question doctrine: "no foreign civil war exception to ... right to sue for tortious conduct that violates ... fundamental norms of ... customary laws of war"; tort occurred in FL; Filártiga (PL-19/31.1): "for purposes of civil liability ... torturer has become ... an enemy of all mankind." Pending.

Michael Ratner, David Cole, Margaret Ratner, Ann Marl Buitrago, CCR, 666 Broadway, 7th Fl, 10012; Margaret Winter; all NY, NY; Daniel E Jonas, Miami Beach, FL; Prof Jules Lobel, U of Pittsburgh Law School, 3900 Forbes Ave, Pittsburgh, PA; Theodore M Lieverman, Haddonfield, NJ; Michael Royce, Portland, OR; amici: William M Walker, ACLU-S CA, 1616 Beverly Blvd, Los Angeles, CA 90026; Carl R Schenker Jr, Int'l Human Rights Law Group, O'Melveny & Myers, 555 13th St NW, Washington, DC 20004

  Contras/Torture
PL-537/34.5. In re Exxon Valdez Oil Spill Litigation; In re the Exxon Valdez (AK Super Ct No 3AN-89-2533 Civ); 767 FSupp 1509 (DC AK 1991); 142 FRD 380 (DC DC 1992)

3/24/89: Oil tanker Exxon Valdez ran aground spilling 11 million gallons crude oil into Prince William Sound. AK legislature created AK Oil Spill Comm to analyze causes: found violations of rules re tanker passage. 8/1/90: Nat'l Transportation & Safety Bd found contributing causes: drinking by captain, fatigued crew, inadequate

- 34.6 -
traffic control by Coast Guard. 3/89-90: 330 lawsuits filed against Def Exxon Corp by fishermen, seafood processors, AK natives, local businesses, shareholders, environmental groups, municipalities. 8/15/89: AK sued Def for damages, ct order for Def to continue clean-up efforts. 8/17/89: Environmental groups sued Def, 6 other oil cos, in Super Ct: public nuisance, gross negligence, fraudulent misrepresentation re ability to handle oil spill. Lawsuits consolidated for pretrial. 9/15/89: Def suspended clean-up efforts. 1/91: Gov Hickel proposed dropping all state, fed'l lawsuits for damages against Def in exchange for $1.2 billion to restore Sound. 2/91: 15 AK native villages sued in DC DC for injunction against settlement: feared settlement would bar villages' right to sue Def.

• 3/7-12/91: DC DC, Sporkin, DJ: issued injunction preventing signing of settlement; ordered U.S., AK to guarantee AK natives would not be harmed by proposed settlement. 3/13/91: Def, AK, U.S. announced $1.1 billion settlement of criminal, civil cases by Gov'ts against Exxon, grant of immunity to owners of Alyeska Pipeline Service Co. Sporkin, DJ: lifted injunction, retained jurisdiction. DC AK, Holland, DJ: announced ct would advertise for written remarks from individual victims to determine impact of spill. 4/29/91: DC DC, Sporkin, DJ, dissatisfied re villagers' rights, ordered villagers' attys to determine what Def believed settlement provided for villagers, whether Def felt settlement protected it from claims by villagers. 5/2/91: AK House of Reps voted (27-13) to reject civil agreement. 5/3/91: AK Gov, Def withdrew from settlement agreement. Trials pending.

Environmental groups: Arthur Bryant, Trial Lawyers for Public Justice, 2000 P St NW; chair, class action comm: Jerry S Cohen, Cohen, Milstein, Hausfeld & Toll, 1401 New York Ave NW Ste 600, 20005; native villagers: Michael D Hausfeld; all Washington, DC; Pls' liaison: Lloyd Miller, Sonosky, Chambers, Sachse, Miller & Munson, 900 W 5th Ave Ste 700, Anchorage, AK 99501

See PL-537a/24.3

  Oil Spill
PL-610/34.6. Abebe-Jiri v. Negewo (ND GA Civ 90-2010)

Late 1970s: Def-Ethiopian security commander allegedly imprisoned, tortured 3 Pls in Ethiopia. 1981: Pls fled to U.S. 1990: Pls discovered Def in Atlanta, sued him for supervising, participating in torture.

• 1991: DC ordered Def to answer interrogatories, provide docs. Discovery pending.

Peter Weiss, Beth Stephens, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Miles Alexander, Michael Tyler, Laurel Lucey; Gerald Weber, ACLU-GA

  Torture
PL-507/34.6. Natural Resources Defense Council, Gwich'in Steering Committee v. Lujan, Sec'y, Dept of Interior 768 FSupp 870 (DC DC 1989)

9/28/89: Gwich'in Indians sued Sec'y of Interior: challenged recommendation to open Arctic Nat'l Wildlife Reserve (ANWR) to oil

- 34.7 -
development; charged EIS, report to Cong underestimated impact on wildlife, failed to address harm to Gwich'in people/culture, exaggerated region's oil potential, violated NEPA (42 USC §4321), APA, ANILCA (16 USC §§3120, 3124). Defs filed motion to dismiss; Pls filed motion for preliminary injunction to compel discovery of "1991 Overview."

• 7/22/91: Green, DJ, granted motion to dismiss in part: claim under ANILCA not ripe for review; denied in part: Pls have standing to challenge adequacy under NEPA of EIS, report to Cong, denied preliminary injunction; entered declaratory judgment for Pls: Defs violated NEPA by not circulating "1991 Overview" as EIS, must now do so. Rep Young (R-AK) introduced bill to open ANWR to oil development; Rep Udall (D-AZ) introduced bill to make ANWR permanent wilderness area.

Lawrence Aschenbrenner, Native American Rights Fund, 310 K Street #708, Anchorage, AK 99501; David C Crosby, 424 N Franklin St, Juneau, AK 99801

  Native American Rights
PL-722/34.7. Robert, Martha Marshall v. Bramer; Young, nonparty Appellant 828 F2d 355 (6th Cir 1987)

7/29/85: KKK held meeting, distributed over 150 leaflets, signs to join Klan. Pls-1st black family to move to Sylvania, KY (small white community w/ history of racial harassment), heard truck drive by 1st night at new home, yells of "niggers"; later, firebomb thrown into house destroyed large portion. 8/22/85: Pls filed civil rights action under 42 USC §§1985, 1986. 8/24/85: KKK scheduled meeting at home of Def's brother-in-law. Hours before meeting, remainder of Pls' house firebombed, burned. Defs Bramer, Emmones arrested: firebombing; pleaded guilty. Young, Cty police officer, gave deposition; TV reported Young was KKK member. Pls requested list of KKK members in discovery for civil suit. Young refused subpoena duces tecum. 3/86: Ct again ordered Young to produce list of KKK members under stringent protective order to allow Pls to take depositions while preserving identity of nonparties on list; Young refused to produce list, citing NAACP v. Alabama, 357 US 449 (1958, protecting NAACP members' associational rights).

• DC found Young guilty of civil contempt: $1,000/day fine. Police fired Young. 8/26/87: 6th Cir aff'd, Ryan, CJ: DC order adequately protected Klan members' anonymity; nonparty's claim of privilege did not justify refusal to comply w/ subpoena. Trial pending on merits.

Phillip J Shepherd, Morris S Dees Jr, Richard Cohen, Alexander P Sussman; Samuel H Fritschner, ACLU-KY, amicus

  Hate Crimes
PL-764/34.7. Feminist Women's Health Center v. Roberts (WD WA Civ C86-161V); (9th Cir)

1984: "Right to life" activists firebombed Pl-Center, Everett, WA. Pl sued for injunction, damages: interference w/ constitutional right to abortion, RICO violation, arson, other criminal activities.

- 34.8 -

• 5/5/89: After 3-week trial, jury found Defs liable for $250,000 for violation of RICO, conspiring in conduct, destruction of property, mail tampering, phone harassment, intimidating staff/patients. Def's appeal pending in 9th Cir.

William J Bender, Rita L Bender, CCR, 666 Broadway, 7th Fl, NY, NY 10012; John Midgley, 101 Yesler Way Ste 301, Seattle, WA 98104; Patricia J Arthur, Lynn Greiner, Kristin Houser, Deanna Pumplin, NLG, w/ Mary M Gundrum

  Abortion
PL-859/34.8. Frank Lumpkin v. Envirodyne Industries, Inc (Wisconsin Steel Workers)

(ND IL, E Div 1989); 933 F2d 449 (7th Cir 1991)

1980: Def-Envirodyne's wholly-owned subsidiaries EDC, WSC filed ch 11 bankruptcy, closing steel plant purchased from Int'l Harvester (now Navistar) in 1977, eliminating Pls'-retired steelworkers' pension benefits valued at over $40 million. Pls filed claim w/ Pension Benefit Guaranty Corp (PBGC) which assumed benefits to date plant sold to EDC, WSC (1977). PBGC filed indemnification suit against Navistar. Pl-Lumpkin, former employees certified as class, brought suit against Navistar for benefits not guaranteed by PBGC from 1977-80: contractual obligations. PBGC, Lumpkin cases consolidated under Lumpkin I. 2/88: Navistar settled: $14.8 million, Settlement Agreement releasing Navistar, EDC, WSC. Moran, DJ: Navistar liable to PBGC for employees' pension benefits to 1977 sale. Pls recertified class, sued Def-Envirodyne for uninsured pension, contract benefits 1977-80 (Employee Retirement Income Security Act, ERISA §502, 29 USC §1132; Labor Management Relations Act, LMRA §301, 29 USC §185) using "alter-ego" theory to pierce corporate veil. Defs asserted: release in Settlement Agreement, statute of limitations.

• 11/7/89: Moran, DJ, dism'd: release barred Pls' claim. 5/17/91: 7th Cir rev'd, Cummings, CJ: Pls' action not time-barred, remanded ERISA/LMRA claims for full evidentiary inquiry into intent of Settlement Agreement. Pending.

Leslie Jones, Johnson, Schaaf & Jones, 343 S Dearborn St, Chicago, IL 60604

  Workers' Rights
PL-716/34.8. Nancy O'Mara Ezold v. Wolf, Block, Schorr & Solis-Cohen 983 F2d 509 (3d Cir 1992)

1983-89: Pl-atty denied partnership by Def-Philadelphia law firm. 1989: Pl sued: sex discrimination; Def applied "severe" partnership standards.

• 1990: Kelly, DJ: Def discriminated against Pl. 12/30/92: 3d Cir rev'd, Hutchinson, CJ: DC impermissibly substituted its own subjective judgment for Def in determining whether Pl met Def's standards. Pl's appeal pending.

Judith Vladeck, Debra L Raskin, 1501 Broadway Ste 800, NY, NY 10036

  Sex Discrimination
- 34.9 -
PL-805/34.9. Xúncax v. Gramajo; Ortíz v. Gramajo (DC MA Civ 91-11564, Civ 91-11612)

1982: Def-chief military commander of 7 Guatemalan provinces, allegedly designed, ordered, implemented, directed program of massacres, murders, disappearances, widespread torture, arbitrary arrest known as "Guatemala Solution." 6/91: Pls-Guatemalan natives sued Def, served papers at Def's Harvard JFK School of Gov't graduation under (630 F2d 876, PL-19/31.1) seeking relief under Alien Tort Claims Act (28 USC §1350). 8/91: Def answered pro se, failed to comply w/ ct rules.

• 8/91: DJ ordered Def to comply. 11/91: DJ entered default judgment. 11/92: h'gs on legal issues. 4/8/93: Pl submitted supplemental briefs. Final judgment on default pending.

Beth Stephens, Michael Ratner, Jennifer M Green, José Luis Morín, David Cole, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Harvey Kaplan; James F Smith; Todd Howland; Harold H Koh

  Torture
PL-663/34.9. Abu-Zeineh v. Fed'l Laboratories Inc, TransTechnology Corp (WD PA Civ 91-2148)

1991: Israeli troops fired canisters of U.S. manufactured CS gas into Palestinian workplace causing Pl's relative's death. 12/91: Pl sued for wrongful death: compensatory, punitive damages, jury trial; U.S. Defs allegedly sold gas to Israel w/ knowledge gas caused many civilian deaths; Israeli troops fired gas (designed for outdoor use) directly at people in confined residential spaces; gas can remain active for weeks. 9/92: Defs moved to dismiss: gas is "riot control agent," causes only temporary discomfort; does not violate U.S. law.

• 1992: DJ denied motion to dismiss. 1992: Defs moved to dismiss: stateless Palestinians have no right to sue in U.S. Fed'l Ct. Pending.

Beth Stephens, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Jules Lobel, Jennifer M Green, Abdeen Jabara, Judith Chomsky, Richard Sobel, Joseph Hornack

  Corporate Responsibility
PL-710/34.9. In re USM Technology Corp v. Silicon Valley Bank 158 Bankruptcy Rptr 821 (Bankruptcy ND CA 1993)

Fall/92: Pls — mostly Korean immigrants w/ minimal understanding of U.S. culture/industry — agreed to forego pay temporarily to keep Def — USM Technologies Corp — alive. 9/92: Def filed Chapter 11 bankruptcy petition, converted to Chapter 7, leaving workers' claims behind creditors' priority claims; Defs told Pls little chance of recovering back pay under Bankruptcy Act (11 USC §701). Pls' atty: merchandise produced by Pls should be used to pay workers' wages before creditors under Fair Labor Standards Act (29 USC §§206, 207, 215(a)(1)); Pls asked Rep Edwards (D-San Jose) to ask Dept of Labor to intervene, address issue in bankruptcy reform legislation pending in Cong. Dept of Labor responded: too late to intervene, address issue in legislation; will monitor bankruptcy proceedings. 12/17/92: after negotiations failed, Pls sued for $228,338 of $425,865

- 34.10 -
Def collected from USM accounts receivable.

• Pending.

Lora Jo Foo, Thomas Kim, Asian Law Caucus, 468 Bush St, 3rd Fl, San Francisco, CA 94108

  Workers' Rights
PL-791/34.10. Hugo Princz v. Fed'l Republic of Germany (DC DC #92-7247, 1992); (DC Cir #937006, 1993)

1942: Pl-U.S. citizen living in Czechoslovakia, only surviving member of family, interned in WWII concentration camps, "leased" by German gov't for work at IG Farben; brothers starved to death at Birkenau; parents, sister believed killed at Treblinka. 1992: Pl sued Def to recover damages for enslavement. Def moved to dismiss: lack of subject matter jurisdiction (FSIA, 28 USC §1330).

• 12/23/92: Sporkin, DJ, denied motion to dismiss: "intolerable injustice"; citizenship means Pl can at least seek vindication of rights in U.S. cts; unconstitutional to limit remedies available only to Def. Def appealed: sovereign immunity is matter of consent given by U.S. to foreign state as matter of grace, comity. Pending.

Anti-Defamation League, 823 UN Plaza, NY, NY 10017; Int'l Assn of Jewish Lawyers, Jurists, amicus

  Concentration Camps
PL-637/34.10. Evans Paul v. Avril 812 FSupp 207 (SD FL 1993)

11/1/89: Pres Avril's security police imprisoned, tortured Pls-newly elected Port-au-Prince mayor, senator, other Haitian political activists. 1/20/90: Avril declared state of siege, intensified crackdown on political opposition. Pls sued Def based on Alien Tort Claims Act, (PL-19/31.1), for Defs' knowledge, approval, instigation of torture. 2/91: Pls served summons at Def's residence. 4/1/91: New Haitian Pres Aristide waived Def's immunity.

• 1/13/93: Nesbitt, DJ: denied Def's motion to dismiss following Magis Palermo's recommendation; waived immunity valid, found subject matter jurisdiction, Alien Tort Claims Act requires well pled tort, violation of law of nations. 2/93: Discovery commenced. Pending.

José Luis Morín, Beth Stephens, Michael Ratner, Peter Weiss, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Lowenstein Int'l Human Rights Clinic, Yale Law School

  Haiti Regime
PL-844/34.10. Doe v. Karadzic (SD NY, #93 Civ 0878)

4/92: War broke out between Bosnian Serbs and new Gov't of Bosnia-Herzegovina. Pl alleges Def commanded, controlled Bosnian Serb forces who systematically engaged in ethnic cleansing against Bosnian Muslims: rape, forced pregnancy, other torture. 5/31/92: Def's troops raped Doe I; raped Doe II's mother before Doe II. 2/11/93: Pls sued Def: genocide; war crimes; crimes against humanity; summary execution; torture; cruel, inhuman, degrading treatment; wrongful death; assault and battery; intentional infliction of emotional harm; seek: compensatory, punitive, exemplary damages;

- 34.11 -
atty fees, costs; other fees Ct deems just and proper; jury trial.

• Pending.

Beth Stephens, Jennifer Green, Peter Weiss, Michael Ratner, José Luis Morín, Matthew Chachere, Jules Lobel, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Rhonda Copelon, Ray Brescia, Celina Romany, Int'l Women's Human Rights Clinic, CUNY Law School, 6521 Main St, Flushing, NY 11367

  War Crimes
PL-700/34.11. Marion Kanemoto v. Barr, Atty Gen'l (ND CA #C92-2061OJW, 1992)

9/43: Pl-U.S. citizen of Japanese descent involved in prisoner exchange between U.S., Japan. 9/92: Pl sued for reparations under Civil Liberties Act, 50 App USC §1991b-1 (1988): internees held overseas whose parents decided to return to Japan excluded; U.S. War Relocation Authority required consulting minors on opportunity to stay in U.S., but not those already interned.

• Pending.

Owen Clements, Morrison & Foerster, 345 California St, 94104-2675; Gen Fujioka, Asian Law Caucus, 468 Bush St #F, 94108; both San Francisco, CA

See PL-32/32.4; PL-73/30.3; PL-135/30.4; PL-361/50.4

  Reparations
PL-703/34.11. Kristina Ridgeway v. Denny's Inc (ND CA #93-20208-JW, 1993)

3/93: Pl-32 minority customers sued Def: discrimination: black customers must prepay meals; pay cover charge; wait inordinately long for tables, menus, water, food; denied advertised free birthday meals despite proper identification, not required of whites. 4/1/93: Def signed consent decree w/ DoJ, agreed to reinforce antidiscrimination policies.

• Trial pending.

Mari Mayeda, Teresa Demchak, Saperstein, Mayeda, Larkin & Goldstein, 1300 Clay St, 11th Fl, Oakland, CA 94612

  Racial Discrimination
- 35.1 -
2. STATE
a. CASES WON AT TRIAL COURT LEVEL

PL-94/35.1. Wilson v. Hacker 101 NYS2d 461 (NY Sup Ct 1950)

Pl-bar owner sought injunction to prevent picketing of her bar by various unions, one of which did not accept female members: hiring only union members would force her to fire all female employees.

• 1950: Sup Ct J found for Pl: prohibition against gender-based distinctions in UDHR Art 2 "indicative of the spirit of our times."

  Gender Discrimination
PL-28/35.1. Rothenberg v. Women Against Military Madness (WAMM), Honeywell Project, Clergy & Laity United (Hennepin Cty Dist Ct, MN 1984)

1968: Civilians began peaceful demonstrations at Honeywell Corp, multinat'l corp producing nuclear weapons, pollution. 1968-84: Fed'l, county, city made many arrests. 1984: Pl sued Def-orgs: causing police to spend large sums of money to deal w/ civil resisters.

• 1984: Oddlund, J, dism'd complaint, issued written opinion: no cause of action stated.

Honeywell Project

See PL-54/28.3; PL-316/28.12; PL-317/66.1

  Nuclear Weapons Protest
PL-158/35.1. EMI v. Sonoma Nuclear Weapons Freeze (Sonoma Cty, CA Super Ct)

Defs sought to distribute leaflets at mall. Pls sued to prevent.

• 7/84: Boone, Super Ct J: placed Santa Rosa Plaza under temporary injunction to provide Defs access for distributing leaflets. 11/85: management of plaza adopted new rules establishing designated areas w/in mall for petitioners, leafleters; settled before trial.

Alan Schlosser, ACLU-N CA

  Leafleting
PL-109/35.1. Planned Parenthood of Contra Costa Cty v. Thompkins (Contra Costa Cty, CA Super Ct No 268934)

2/15/85: Pl filed complaint for TRO, permanent injunction to prevent Defs harassing clinic workers/clients during Saturday clinics, abortion counseling. Defs cited U.S. participation in Nuremberg Trials, asserted conflicted w/ Nuremberg Principles.

• Dolgin, J: issued permanent injunction. Defs moved protest to other clinics.

Karen A Ryer

  Abortion
PL-44/35.1. Swing v. Seattle Coalition Against Apartheid (King Cty Super Ct No 85-2-03373-6)

Defs held nonviolent weekly demonstrations coordinated w/ Seattle police. S African consul sued for injunction to prevent demonstrators

- 35.2 -
from picketing outside his Seattle residence/business in protest of S African apartheid. Defs' Memo in Opposition to Pl's Motion for Injunctive Relief argued Defs did not violate rights of Consul, actions lawful under 1st Amdt freedoms of speech, assembly.

• 3/8/85: Donohue, J: aff'd Defs' 1st Amdt rights, refused to grant preliminary injunction.

Elizabeth Schott, Seattle, WA; Lawrence Sarjeant

See PL-151/25.4

  Apartheid
PL-107/35.2. California Stevedore & Ballast Co v. Bay Area Free South Africa Movement (San Francisco Super Ct No 854420)

1985: Defs began peaceful protest at docks unloading S African cargo. 3/10-11/86: large protest; Pl called San Francisco Police Dept; Def alleged violence precipitated by police. 3/86: Pl sought ex parte TRO against Def's actions. Ship subject to demonstration left port.

• 3/13/86: Judge denied TRO.

Edward M Chen, ACLU; John M Crew, 1743 Sanchez, San Francisco, CA 94131

  Apartheid
PL-236/35.2. Lubmann, Bd of Trustees, Employees' Retirement System v. Mayor, City Council of Baltimore 562 A2d 720 (MD Ct of App 1989); cert den 110 SCt 1167 (1990)

10/2/86: Baltimore City Council adopted 1986 Ordinances Nos 765, 792 requiring city retirement systems to divest S Africa holdings. Pls sought declaratory judgment ordinance invalid: violated delegated powers, interstate, foreign commerce clauses, fed'l foreign policy power, fed'l preemption (due to Comprehensive Anti-Apartheid Act of 1986), contractual obligation.

• Greenfeld, J, upheld Ordinances: "minimal" effect on pension fund, "salutary moral principle." 9/1/89: MD Ct of App, Eldridge, J, aff'd. 1990: USSC denied cert.

Melvin J Sykes, 310 MD Bar Center, 520 W Fayette St, Baltimore, MD 21201; amici: NLG, Baltimore affiliates of ACLU, Nat'l Conf of Black Lawyers, Citizens Action Coalition; Pax Christi, Archdiocese S Africa Coalition, Anti-Apartheid Coalition, Jobs w/ Peace; Democratic Socialists of America, Johns Hopkins U Coalition for Free S Africa; Lutheran Community Center at Messiah; Emergency Response Network; Homework Friends Meeting; Neighborhoods Inst/Community Leadership Ctr; Nuclear Free America; Central America Solidarity Comm; UMBC Anti-Apartheid Coalition; Mankekolo Mahlangu Ngcobo

  Apartheid
PL-421/35.2. Seraw Tekuneh v. Metzger (Multnomah Cty Cir Ct 1990); 850 P2d 373 (OR Ct of App 1993)

11/13/88: 3 Skinheads murdered Mulugeta Seraw, Ethiopian student. Mieske, Brewster, Strasser-Portland Skinheads, "East Side White Pride" members arrested: manslaughter, murder; pleaded guilty. Pl-student's

- 35.3 -
father filed wrongful death action against Mieske, Brewster, Tom Metzger (head of White Aryan Resistance (WAR)), John Metzger (head of WAR Youth), WAR for $12.5 million on behalf of Seraw's family in Ethiopia: Metzger sent agent to Portland to encourage violent acts against blacks, promote white supremacy, distribute racist materials.

• 10/22/90: After trial, jury awarded Pls $12.5 million. 12/92: Defs-Mieske, Brewster appealed; Defs-Metzger, WAR appealed separately. 4/14/93: Ct of App (Warren, Richardson, Edmonds, JJ) aff'd.

Morris Dees, Southern Poverty Law Center, 400 Washington Ave, Montgomery, AL 36195-5101

  Racist Attacks
PL-437/35.3. Mack Green v. Windy (Cook Cty, IL)

1/22/88: Def threatened Pl-African-American bus driver, set fire to Pl's truck. Def arrested; pleaded guilty to 3 criminal charges; sentence: 1-yr probation. Pl filed first suit for damages under IL Ethnic Intimidation Act, IL Rev Stat ch 38, para 12-7.1.

• 9/90: All-white jury awarded Pl damages: $75,000 emotional distress, $400,000 punitive.

Frederich Sperling, Sally Turner, Schiff, Hardin & Waite, Chicago, IL; Chicago Lawyers' Comm for Civil Rights Under Law

  Racist Attacks
PL-439/35.3. Mereles v. Peralta (NY Sup Ct #24124/89)

6/88: Paraguayan exiles in U.S. demonstrated against Stroessner, Paraguayan dictator, at UN. Def, other Paraguayan security personnel attacked demonstrators, threatened they would disappear if returned to Paraguay. 3 Pls sued Def: conspiracy to interfere w/ 1st Amdt rights, tort. Def filed answer; Pl served Def w/ summons when he visited U.S.; discovery began; Def failed to show for deposition.

• 9/90: J granted default judgment to Pls. Damages h'g pending.

Frank Deale, Morton Stavis, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Mahlon Perkins Jr

  Paraguay Dictatorship
PL-696/35.3. Ahl v. Tankovich (Contra Costa Cty Super Ct C89-03843, 1990)

4/1/89: Pls-black family moved to Pittsburg, CA. 4/89-1990: Def allegedly forced Pls from their home, shouted racial slurs, was hostile towards them, caused St Bernard to chase their daughter, pounded on door while threatening to kill them, spray-painted "No more niggers" on front of their house. 3/1/90: Def arrested: interfering w/ Pls' civil rights, vandalizing their property, making threatening phone calls. Def pleaded nolo. Sup Ct directed Def to 30 days in work furlough program, 3 yrs probation.

• 9/18/90: After trial, Patsey, J: awarded Pls $145,200 damages, $12,600 atty fees. Pl collected $9,000; Def unable to be found.

William H Bachrach, 1401 Lakeside Dr Ste 700, Oakland, CA 94612

  Hate Crimes
- 35.4 -
PL-852/35.4. Doe Fiedler v. Dana Properties, Fairfield North (Solano Cty Super Ct #Civ 89-1396); (ED CA 1990)

1989: Def-property manager sexually harassed, grabbed Pls'-tenants' breasts, genital areas, asked Pls to pose for photos in lingerie, view pornography w/ Def; told Pls to spy on each other; imposed curfews on female tenants, children; tampered w/ mail; made false reports to gov't agencies; entered apartments w/out notice. Pls-15 single female tenants, 25 children filed class action under CA Fair Employment & Housing Act: sought damages for emotional distress. Def-manager: failed to appear for deposition 3 times. Super Ct imposed default judgment. 1990: U.S. DoJ filed pattern/practice suit for 8 additional Pls: Fair Housing Act Title 8; consolidated w/ private suit.

• 1/91: in private mediation, some Pls settled: $3,000-$60,000 w/out atty fees. Ct ordered Def to pay $258,899 atty fees. 6/91: at judicial conference, Def agreed to pay $428,895 atty fees. 12/91: DoJ settled for $5,000-135,000, $45,000 civil penalty, consent decree. Grand totals: $966,000 damages, $687,794 atty fees, largest known settlement in U.S. sexual harassment in housing suit.

Leslie F Levy, 6536 Telegraph Ave Ste A-102, Oakland, CA 94609; Christopher Shaheen, DoJ, Washington, DC

  Sexual Harassment
PL-848/35.4. William Kiley v. Huff (Santa Clara Cty, CA Super Ct #712783, 1992); Klanwatch Intelligence Report (6/92)

1988: Pl-gay male lived next to people w/ neo-Nazi Skinhead affiliation through son, Def; dispute began w/ barking dogs, escalated into violence, vandalism, anti-gay slurs; Pl's attys recommended getting evidence, "unimpeachable source" to make case against Defs. 6/11/91: Pl set video camera outside house to tape activity; Def yelled anti-gay slurs, attacked Pl; Pl never retaliated, released video to TV station. Police arrested Def: assault, battery, hate crime violation (CA Pen C §422.7). 8/91: Edwards, J: convicted Def; sentence: 10 mths juvenile facility, participation in drug program. 4/14/92: Pl filed civil suit against Def, Def's parents: fostered, encouraged son's racism, homophobia.

• Parties settled: Def paid Pl monetary damages.

Janet Cartwright, Santa Clara Prosecutor's Office; Southern Poverty Law Center, 400 Washington Ave, Montgomery, AL 36104

  Hate Crimes
PL-819/35.4. Ypsilanti, MI v. General Motors (Washtenaw Cir Ct #92-43075); (MI Sup Ct #95994, #96038, 1993)

12/91: Def planned to close 21 plants, eliminate 74,000 jobs over several yrs. 1992: Def shut down Willow Run plant despite being more profitable, productive than competing plant in Arlington, TX. 1/93: Pl sued to enjoin Def from closing plant due to massive layoffs, devastation to local economy: breach of contract from tax abatement statute (Act 198, 1974, MCL 207.551 9 (2)(e)); breach created by conduct of parties during, before tax abatement; promissory estoppel; unjust enrichment; misrepresentation.

- 35.5 -

• 2/9/93: Shelton, J: Def "lulled" people of Ypsilanti into paying millions of tax dollars; Def cannot desert 4500 workers, families based on economic necessity; injustice avoided only by promissory estoppel; enjoined Def from transferring plant. Def appealed. Washtenaw Cty intervened; Ct named State as involuntary Pl-Appellee. 4/2/93: MI Sup Ct aff'd. 4/14/94: settled: Def agreed to invest $80 million in new equipment, machinery to increase capacity at transmission plant next to Willow Run; Def will clean up old factory under state, fed'l environmental laws; Cty, town will provide more tax abatements.

Doug Winters, Melain & Winters, 61 N Huvon, Ypsilanti, MI 48197; NE Ohio Legal Services, 700 Metropolitan Tower, Youngstown, OH 44503

  Plant Closures
- 36.1 -
b. CASES WON ON APPEAL

PL-142/36.1. Kenji Namba v. McCourt (Multnomah Cty Cir Ct 1947); 204 P2d 569 (OR Sup Ct 1949)

1940: Cong passed Nationality Act (8 USC §703) making Japanese, other aliens, ineligible for citizenship. 1945: Alien Land Law (OCLA 61-101), OR Law 1945 Ch 436, barred ineligible aliens from owning/leasing real estate. 1947: Pls — K Namba-U.S. citizen, E Namba-Japanese alien — planning to lease co-Pls' farm, filed complaint: OCLA 61-101, Ch 436 violated 14th Amdt due process, equal protection, Fed'l Gov't control over aliens, immigration (U.S. Const).

• 1947: Cir Ct: no 14th Amdt violation: states can deny right to own, lease. 3/29/49: OR Sup Ct rev'd, Rossman, (332 US 633); statute cannot discriminate on basis of race; OCLA 61-101, Ch 436 violated 14th Amdt.

  Ethnic Discrimination
PL-92/36.1. Sei Fujii v. California 38 CA2d 718 (CA Sup Ct 1952)

1948: Pl-Japanese ineligible for U.S. citizenship under U.S. naturalization laws, purchased land. CA claimed land escheated to state under Alien Land Law (Gen Laws Act 261). Pl sued: Arts 1, 55, 56 (PL-370/2.1); 14th Amdt.

• Los Angeles Cty Super Ct held for Def. 1952: CA Sup Ct rev'd: Alien Land Law invalid discrimination in violation of 14th Amdt; in obiter dicta, rejected argument law also violation of Arts 55, 56 (PL-370/2.1): not self-executing.

J Marion Wright, Owen E Kudfer, A L Okrand; amici: Fred Okrand-Pres, ACLU-S CA; Will Maslow

  Ethnic Discrimination
PL-136/36.1. Williams Int'l v. Smith; In re Contempt of Schoonover-Higgins 375 NW2d 408 (MI Ct of App 1985); 413 NW2d 392 (MI Sup Ct 1987); 416 NW2d 117 (1987); 42 Guild Practitioner 126-27 (1985)

5/83: 2 appellants, 3 others cut perimeter fence around Pl's Walled Lake plant, spread ashes, defaced walls of buildings to protest manufacture of gas turbine engine used by U.S. gov't in cruise missile. Pl-Co filed complaint.

• Cir Ct granted Pl default judgment, permanent injunction against Defs trespassing, blocking entry to Pl's premises. Defs would not promise to honor injunction. Defs found in contempt. Defs: contempt charges criminal, not civil as labeled, ct failed to afford criminal procedural protections, denied due process; Defs rightfully exercised 5th Amdt rights against self-incrimination; contempt orders violated constitutional right to engage in civil disobedience, right to privacy. After 2-week h'g, state dropped contempt charges against first group. Later groups did not contest contempt charges. Protests continued. 4/20/84: Thorndurn, J: ordered protestors jailed until pledged to respect property rights. 7/15/85: Ct of App aff'd civil contempt charges. 11/85: Pl's attys asked J to release Defs: bad press on indefinite jail for elderly, religious people; J agreed. 1/17/86: J

- 36.2 -
issued last contempt citation. 10-12/11/87: MI Sup Ct: contempt jailings improper preventive detention.

Ernest Goodman, James Smith, Carfon Foltz, Daniel Lagrou, Sol Metz, Peter Dougherty, Deborah Choly

See PL-48/25.2

  Nuclear Weapons Protest
PL-624/36.2. Lloyd Corp v. Whiffen 750 P2d 1157 (OR Ct of App 1988); 773 P2d 1294 (OR Sup Ct 1989)

12/85: Defs gathered signatures for initiative petitions in mall that prohibited political solicitation. Pls sued for injunction. Defs claimed freedoms of expression, assembly (OR Const Art I §§8, 26).

• LaMar, J, granted injunction: prohibited political activity at mall w/out Pls' permission. Ct of App rev'd, Newman, J: injunction violated OR Const Art I §8. OR Sup Ct aff'd, remanded, Jones, J: public interest in free political speech stronger than Pls' property interest; injunction far exceeded justification; detailed injunction w/ reasonable time, place, manner restrictions permissible.

ACLU-OR, NLG, amici

  Leafleting
PL-734/36.2. Edgewood v. Kirby 761 SW2d 859 (TX DCA-Austin 1988); 777 SW2d 391 (TX Sup Ct 1989); 804 SW2d 491 (1991)

5/84: Pls sued: TX public school finance system unconstitutional: wide opportunity gaps between wealthy, poor school dists.

• 1987: Clark, J: school financing system violated TX Const Art 7 §1, Educ C §16.001(c)(d); enjoined TX from funding schools after 9/1/89 unless legislature repaired defects. 12/88: TX DCA rev'd. 10/2/89: TX Sup Ct rev'd, reinstated injunction, effective 5/1/90. 6/7/90: Gov signed Sen Bill 1. Pls sought: 1) declaration system remained unconstitutional; 2) enforcement of 1989 injunction. McCowan, J: new financing law unconstitutional; but vacated injunction, denied further relief until clear legislature would not adopt constitutional funding system by 9/1/91. 1/22/91: TX Sup Ct vacated in part, Phillips, ChJ: 1) trial ct exceeded authority by vacating Sup Ct's injunction, postponing consideration of further injunctive relief; 2) although new statute provided guaranteed revenue/student/penny of local tax effort over specified minimum, statute remained unconstitutional: did not change any school dist boundaries: wealthiest dists draw 450 times more funds than poor dists; did not change funding allocation from local property taxes, state revenue; made no attempt to equalize access to funds among all dists; 3) TX Const did not provide barrier to concept of school dist tax base consolidations. On motion for reh'g: local tax revenue could not be recaptured by TX for purposes of educational equalization.

David R Richards, Austin, TX; Richard Gray III, Albert Kauffman, Norma V Cantú, Antonia Hernández, Guadalupe T Luna, Mexican-American Legal Defense & Education Fund, San Antonio, TX; David Hall, Weslaco, TX; Roger Rice, Somerville, MA

  Education Discrimination
- 36.3 -
PL-824/36.3. Emma Rojo v. Kliger 257 CA Rptr 158 (CA 2d DCA 1989); 52 CA3d 65 (CA Sup Ct 1990)

8/29/86: Def employed Pls as medical assistants; Pls claim Def made sexual remarks, demands for sexual favors in exchange for employment, violating Fair Employment & Housing Act (FEHA) §12940 (i). Pls sued: sexual harassment, humiliation, emotional distress.

• 10/8/87: Walker, J: FEHA admr proceedings proper forum; granted Def's motion for summary judgment: Pls failed to exhaust admr remedy. 3/29/89: DCA, Klein, J, rev'd: preexisting common law remedy defeats implied preemption; FEHA establishes freedom from job discrimination as civil right (§12921). 12/20/90: CA Sup Ct aff'd (7-0), Panelli, J: FEHA does not supplant other state laws; employee need not exhaust admr remedies before judicial relief. Broussard, J (Kennard, J) conc: FEHA does have authority to award compensatory damages for discrimination injuries.

Lorraine Grindstaff, Patten, Faith & Sanford, 635 W Foothill Blvd, Monrovia, CA 91016; amici Equal Rights Advocates, NLG-San Francisco

  Sex Discrimination
PL-820/36.3. In re Guardianship of Sharon Kowalski, Ward (St Louis Cty Dist Ct 1988); 478 NW2d 790 (MN Ct of App 1991)

Pl living 4 yrs w/ lesbian partner, Karen Thompson (Pet); exchanged rings, were insurance beneficiaries. 10/13/83: Pl suffered severe brain damage in car accident; wheelchair bound, impaired ability to speak, severe loss of short-term memory. Pet petitioned for guardianship. 3/84: Pl's parents did not know of relationship, cross-petitioned for guardianship; Pet agreed, expecting to have visitation rights, input in health care of Pl; Ct granted guardianship to parents. 7/25/85: Parents received ct order to terminate Pet's visitation rights; moved Pl to nursing home in Hibbing.

• 5/88: Campbell, J: ordered specialists to examine Pl; doctors concluded Pl wished to see Pet. 1/89: Ct permitted Pet to reestablish visitation; Pl relocated; Pet permitted to bring Pl for semi-monthly weekend visits. 1988: Parents relinquished guardianship. 8/7/89: Pet filed for guardianship. 4/23/91: Trial Ct denied petition. 12/17/91: Ct of App rev'd, Davies, J: granted Pet guardianship: best interests of ward most important consideration; kinship not always best for ward.

Karen Thompson Legal Defense Fund, 3070 Fulton Circle, Clearwater, MN 55320; M Sue Wilson, Christine N Howard, Wilson & Binder, 2400 Centre Village, 431 S 7th St, Minneapolis, MN 55415; amici ACLU-MN; Nat'l Org for Women; Boston Self Help Center; United Handicapped Federation-MN

  Gay Rights
PL-596/36.3. Harris v. Capital Growth Investors XIV (Yolo Cty Super Ct #55608); 259 CA Rptr 586 (CA 3d DCA 1989); 52 CA3d 1142 (CA Sup Ct 1991)

Pls-female heads of low-income families based solely on public assistance benefits, denied opportunity to rent apartments owned by

- 36.4 -
Defs: did not meet minimum income requirements. Pls sued: Defs' minimum income policy arbitrary sex/economic discrimination under Unruh Civil Rights Act (Civ C §§51, 52) prohibiting denial of access to public accommodations based on specified classifications (not including economic/financial factors). Def filed demurrer.

• Tuttle, Roach, JJ, sustained demurrers, dism'd. 6/22/89: DCA rev'd as to economic discrimination claim, Marler, J: raised factual issues re alleged arbitrariness of Defs' practice; aff'd as to sex discrimination claim. 2/28/91: CA Sup Ct rev'd (5-2) as to economic discrimination claim, Lucas, J: Defs' policy does not make distinctions among persons based on classifications listed in Act, similar personal traits that bear no relationship to responsibilities of consumers of public accommodations but apply uniformly, neutrally to all persons regardless of personal characteristics; aff'd as to sex discrimination claim: Pl seeking to establish case under Unruh Act must plead/prove intentional discrimination; showing of disparate impact insufficient. Broussard, Mosk, JJ, diss: Pls pleaded facially valid cause of action under Unruh Act, can not be disposed of by demurrer, citing many economic discrimination cases.

Carolyn Burton, Gary Smith, Carole F Grossman, Sandra D Jones, Manuel A Romero; amicus John Van de Kamp, CA Atty Gen'l

  Economic Discrimination
PL-823/36.4. Aime v. Massachusetts (MA Sup Ct #S-6089, 1993)

10/7/92: MA legislature amended bail stat (MGLA ch 276 §§57, 58): "dangerous" Defs can be denied bail; Defs not permitted to testify, present evidence, cross-examine witnesses at h'g; applies to all arrestees. Pl sued: due process denial.

• 4/5/93: MA Sup Ct: Amdts unconstitutional: do not "further accuracy" of judge's determination of "arrestee's dangerousness", due process violation; rights to be heard, cross-examine are essential components of h'g in which presumptively innocent individual may lose freedom.

  Bail
PL-846/36.4. Sentinel Communications Co v. John W Watson 615 So2d 768 (FL 5th DCA 1993)

1993: After jury convicted woman charged w/ murder, one juror alleged juror misconduct. Trial ct arranged to have jurors interviewed, ordered transcripts of interviews sealed, closed h'g, prohibited media coverage of interviews. Pl-newspaper sued trial ct judge: overstepped authority by closing all public access to proceedings.

• 3/5/93: DCA, Harris, J: Sanctity of jury requires protection only of matters basic to verdict, jury deliberations; trial ct to review transcripts, release portions not pertaining to jury's decision; lifted gag order.

Jonathan D Kaney, Cobb, Cole & Bell, PO Box 2491, Daytona Beach, FL 32115-2491; David L Evans, Mateer, Harbert & Bates, Ste 600 Landmark Center II, 225 E Robinson St, PO Box 2854, Orlando, FL 32802; Stephen D Milbrath, Allen, Dyer, Doppelt, Franjola & Milbrath, PO Box 3791, Orlando, FL 32802-3791

  Free Press
- 37.1 -
c. CASES WITH SUPREME COURT OPINIONS

PL-607/37.1. Sipes v. McGhee 25 NW2d 638 (MI Sup Ct 1947); 334 US 1 (1948)

1945: Pls-Detroit residents sought to enforce 1934 covenant (only whites can occupy property in subdivision) against Defs-neighbors. At trial, Defs produced expert testimony on difficulty of determining race w/out scientific tests, claimed covenant violated due process clause of MI Const, 14th Amdt U.S. Const, suggested Atlantic, UN Charters int'l treaties making restrictive covenants against minorities matters of public policy rather than private contract.

• Wayne Cty Cir Ct, Miller, J: directed Defs to move from property w/in 90 days. 1/7/47: MI Sup Ct aff'd, Bushnell, J: Pl's testimony Defs "colored" sustained findings Defs African-American' enforcement of contractual covenant did not violate due process where Defs had notice, opportunity to be heard; treaty not applicable to state determination of contractual rights between U.S. citizens. 5/3/48: USSC rev'd, Vinson, ChJ: restrictive covenants do not violate 14th Amdt where restrictions enforced voluntarily through private contractual conduct; restrictions enforced by state decisions amount to state conduct, denying purchasers of color equal protection.

Thurgood Marshall; Loren Miller, Los Angeles

  Racial Discrimination
PL-574/37.1. American Federation of Labor v. American Sash & Door (Maricopa Cty, AZ Super Ct); 67 AZ 20 (1948); 335 US 538 (1949)

1946: AZ adopted "Right to Work" Amdt to AZ Const prohibiting union closed shop arrangements. Pl sued for declaratory judgment, equitable relief against enforcement of Amdt: deprived unions of 1st, 14th Amdt rights, impaired obligations of existing contracts.

• 1947: Phelps, J, dism'd: no violation of U.S. Const. 2/4/48: AZ Sup Ct, Udall, J: aff'd. 1/3/49: USSC aff'd (8-1); Frankfurther, J, conc: UDHR Art 20(2): "No one may be compelled to belong to an association."

Herbert S Thatcher, HS McCluskey

  Right-to-Work Laws
PL-887/37.1. Cohen v. Cowles Media Co (Hennepin Cty Ct 1988); 445 NW2d 248 (MN Ct of App 1989); 457 NW2d 199 (MN Sup Ct 1990); rev'd 111 SCt 2513 (1991)

1982: w/ promise of confidentiality, Pl gave ct records to Def-Media re other candidate for MN Gov. In stories, Def identified Pl; Pl fired from job; sued: breach of contract, fraudulent misrepresentation.

• 11/19/88: Knoll, J: 1st Amdt did not bar suit. After trial, jury awarded Pl: $200,000 compensatory, $500,00 punitive damages. 9/5/89: MN Ct of App aff'd breach of contract, compensatory damages; rev'd punitive damages: Pl did not prove fraud. 12/10/90: MN Sup Ct: aff'd on fraud; rev'd on breach, damages; rejected Pl's promissory estoppel claim. 6/24/91: USSC rev'd (5-4), White, J: 1) Ct has jurisdiction despite promissory estoppel not raised in lower

- 37.2 -
ct; MN Sup Ct decided on fed'l law, Def's defended w/ 1st Amdt; 2) 1st Amdt does not bar claim against Def for promissory estoppel: law of general applicability, does not single out press, applies to all citizens; 1st Amdt does not grant press protection from any law restricting its right to report truthful information; 3) remanded to determine whether verdict for Pl should be upheld on ground promissory estoppel established under state law; did MN Const shield press from such claims?

Elliot C Rothenberg, Minneapolis, MN

  Freedom of Press
- 38.1 -
d. CASES LOST

PL-435/38.1. Cramer v. Tyars 151 CA Rptr 653 (CA Sup Ct 1979)

Trial ct in commitment proceeding required person alleged to be mentally retarded, danger to self, others, to testify re alleged assaultive behavior. Def responded w/ wild claims of attacks illustrated w/ swinging, punching motions.

• CA Sup Ct: Trial J's decision "harmless beyond all reasonable doubt." Newman, J, diss: decision "cruel and degrading", violating UDHR Art 5: "No one shall be subjected to cruel, inhuman or degrading treatment ..."

  Cruel, Inhuman and Degrading Treatment
PL-31/38.1. In re Weller 164 CalApp3d 44 (CA 1st DCA, Div 3, 1985)

10/29/79: 2 Pets handed out anti-nuclear leaflets to employees at Lockheed plant in Sunnyvale, CA; arrested: trespass. 7/24/80: Muni Ct J heard expert testimony re imminence of nuclear war outside jury's hearing; disallowed testimony; jury convicted. 8/23/83: Super Ct-App Dept aff'd. 1/10/84: Pet filed habeas petition urging ct to permit necessity defense. Episcopal Peace Fellowship filed amicus brief on int'l law issues.

• 1/27/84: DCA denied petition. 2/8/84: CA Sup Ct ordered Muni Ct to show cause why Pet should not be allowed to present necessity defense. 1/25/85: DCA denied writ: Defs failed to exhaust alternate remedies.

Howard C Anawalt, Santa Clara, CA; Aram B James; Sheldon Portman, Alexander & Bohn, 55 S Market St #1080, San Jose, CA 95113; Stephen N Brannon; Alan Ramo, Citizens for a Better Environment, 501 2nd St #305, San Francisco, CA 94107; Andrew Lichterman; Kathryn Seligman, 485 Kentucky Ave, Berkeley, CA 94707

  Anti-War Leafleting
- 39.1 -
e. CASES PENDING

PL-580/39.1. Dow Chemical Co, Shell Oil Co v. Alfaro 751 SW2d 208 (TX 1st DCA-Houston 1988); aff'd 786 SW2d 674 (TX Sup Ct 1990); cert den 111 SCt 671 (1991); mandamus den 814 SW2d 237 (TX 14th DCA-Houston 1991)

5/84: Pl, 81 other Costa Rican residents-Standard Fruit Co employees sued Dow, Shell Oil Cos in TX: permanent injuries, sterility resulting from exposure to dibromochloropropane (DBCP), pesticide manufactured by Defs, furnished to Standard Fruit. Def-Cos: attempted to remove suit to U.S. fed'l ct; unsuccessful; argued for dismissal under forum non conveniens.

• 1984: Smith, J: found jurisdiction but dism'd: forum non conveniens. 3/24/88: DCA rev'd, Warren, J: TX cts lack authority to dismiss on ground of forum non conveniens. 3/28/90: TX Sup Ct, Ray, J, aff'd, remanded: TX Civ Practice & Remedies C §71.031 guarantees right to enforcement of personal injury, wrongful death claim; legislature statutorily abolished doctrine of forum non conveniens in suits under this section. 1/7/91: USSC denied cert. 10/23/91: TX DCA overruled mandamus: Defs to comply w/ discovery. Pending.

Charles S Siegel, Baron & Budd, Dallas, TX

  Pesticide Injury
PL-84/39.1. Wayne Williams v. Kemp (Butts Cty, GA Super Ct #85 Civ 410)

1982: Pet charged w/ murder of 2 adults; labelled "Atlanta Child Murderer", not charged w/ killing child. At trial, DA introduced evidence of child murders. 2/82: Ct convicted Pet; sentence: life in prison; appeal denied. 1985: Docs turned over to Pet's attys showed prior to Pet's arrest, chief suspects were Klansmen attempting to start race war. Pet filed habeas petition.

• GA Sup Ct gave Pet's attys, news media access to withheld police files re Klan involvement in murder. 3/24/92: Def filed motion for new trial: suppression of exculpatory evidence deprived Pet of fair trial. Pending.

William Kunstler, Ronald Kuby, 13 Gay St, NY, NY 10001; Lynn Whatley, Alan M Dershowitz, Bobby Lee Cook

  Ku Klux Klan
PL-667a/39.1. Darrell Cabey v. Goetz; Goetz v. Kunstler (SD NY Civ 85-1383); (Bronx Sup Ct 1990); (NY Sup Ct Civ 586-90)

12/22/84: White Def shot, wounded 4 African-American youths, two in back, on Manhattan subway train w/ hollow "dum dum" bullets; Pl permanently paralyzed. See Goetz, PL-667/28.10. 1985: Pl sued Def in Bronx Sup Ct for $50 million damages: bodily injury. Def moved to transfer damage suit to Fed'l Ct: Def is FL citizen. SD NY denied motion. Def moved to consolidate w/ suits of other 2 wounded; denied. 9/90: at deposition, Def admitted saying to Pl: "You don't look so bad, and here's another" before shooting Pl second time. 1/90: Def sued Pl's counsel: slander.

- 39.2 -

• NY Sup Ct dism'd Def's suit: failure to state claim. Def filed notice of appeal, did not pursue. Pl's damage suit pending.

William M Kunstler, Joan P Gibbs, Ronald L Kuby, C Vernon Mason, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Frank E Deale, Ralph Shapiro on libel suit

See Goetz, PL-667/

  Hate Crimes
PL-685/39.2. Rasheed v. Houghton (Alameda Cty, CA Super Ct #H-141351-3 1989)

2/87: Def moved behind Pl, Palestinian-American family in Castro Valley, CA. 7/87: Def sought variance to build multi-car garage at residence; homeowners assn, Pl, others voiced opposition at h'gs; City approved variance; Def began to racially harass, threaten, assault, batter, intimidate Pl. Pl sought injunction against Def.

• 7/13/89: Agretelis, J, granted preliminary injunction: Def prohibited from coming w/in 100 yards of Pl. 10/89: Def attempted to run over Pl w/ motorcycle. 12/27/89: Agretelis, J: Def in contempt for violating injunction; refused to impose jail time. 1990: Def trespassed on Pl's property; Pl moved for contempt; Parilli, J: insufficient evidence; admonished Pl to "behave like Americans". Alameda Cty Sheriff's Dept viewed situation as "feud", took little action. 1991: Pl mounted 24-hr video camera to stop Def. 9/20/92: Pl signed final papers to sell house; Def fired multiple gunshots at Pl, real estate agent: shattered car window, damaged car trunk, garage ceiling, Pl not injured. Police arrested Def. Pending.

Don Tamaki, 388 Market St Ste 1080, 94111-5315; Doreena Wong, Hate Violence Project, Asian Law Caucus, 468 Bush St, 3rd Fl, 94108; all San Francisco, CA

See PL-685a/29.4

  Hate Crimes
PL-742/39.2. Texas v. Morales (Travis Cty Dist Ct 1991); 826 SW2d 201 (TX 3d DCA-Austin 1992)

1990: Pls sued: TX sodomy statute (TX Pen C §21.06) violated TX Const rights of privacy, equal protection, due process.

• 1991: Davis, J: enjoined enforcement: stat unconstitutional. 3/11/92: DCA aff'd, Carroll, J: lesbians, gay men had standing to bring civil action; Dist Ct had jurisdiction; declaratory, injunctive relief appropriate: stat violated TX Const right to privacy. Def's appeal pending.

TX Human Rights Commn; Tom Doyal, Patrick Wiseman; all Austin, TX; Robin Cain, Gay & Lesbian Task Force, Washington, DC

  Gay/Lesbian Rights
PL-809/39.2. Hope v. Perales 571 NYS2d 972 (NY Cty Sup Ct 1991); 595 NYS2d 948 (App Div, 1st Dept 1993)

1990: NY enacted medicaid law (Parental Care Assistance Program) which designated funds for prenatal, postpartum care for impoverished women, those w/ incomes marginally exceeding poverty line,

- 39.3 -
expressly excluding abortion (including pregnancies resulting in extreme physical, mental health damage to mother, or where prenatal testing reveals severe, fatal fetal anomalies). Pl sued.

• 4/15/91: NY Sup Ct: program's exclusion of medically-necessary abortions violates NY constitutional guarantees of due process, privacy, equal protection. 3/23/93: App Div aff'd: providing women w/ funds only in connection w/ prenatal, postpartum care but not otherwise pressures women to give birth thereby limiting reproductive freedom of women whose family incomes are between 100-185% of poverty level. Def's appeal pending.

Jenny Rivera, Puerto Rican Legal Defense Fund, 99 Hudson St, 14th Fl, NY, NY 10013; amici: Mary Gundrum, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Catherine Weiss; Donna Lieberman; Robert Levy; Cleary, Gottlieb, Steen & Hamilton; Center for Reproductive Law & Policy; ACLU-Reproductive Freedom Project

  Abortion Rights
PL-721/39.3. In re Baby Girl A 230 CalApp3d 1611 (4th DCA 1991)

Def-village native Akhiok Indian, born in Canadian Aleutian Islands, raised by adoptive parents in Orange Cty, CA. 1988: Def tried to have daughter adopted; Pl-Akhiok Indian tribe sued to enjoin Def from placing child in non-Indian family from Canada: right to intervene under Indian Child Welfare Act (ICWA) (25 USC §1901), which prevents disintegration of Indian tribes.

• 6/7/91: DCA, Moore, J: ICWA does not prevent/require tribe to intervene w/ voluntary adoption of Indian child who lives off reservation lands; Pl-tribe's interests sufficient to intervene; placement preferences in ICWA, favoring adoption w/in tribe, need not be followed, only in absence of "good cause"; guidelines of ICWA list request of biological parents as one type of "good cause". Def's appeal of portion of ruling pending Canadian appellate ct ruling re CA ct jurisdiction over adoption by Canadian couple.

Christian Van Deusen, 615 Civic Center Dr West, Ste 300, Santa Ana, CA 92701 for Pl; Bertram E Hirsch, Floral Park, NY for Def

  Adoption
PL-744/39.3. Sandra S Nelson v. McClatchy Corp and Tacoma News (WA Super Ct 1992)

1992: Def-Co transferred Pl-reporter to swing shift copy editor for involvement in gay/lesbian ballot initiative campaign. Pl sued for wrongful discharge: violating WA Const, breaching employment contract.

• Pending.

William J Bender, Jim Lobsenz, 1301 5th Ave Ste 3401, Seattle, WA 98101

  Wrongful Termination
PL-701/39.3. Alcantar-Maya, Magaña v. Volpi & Son (San Joaquin Cty Super Ct No 255326); California Lawyer (7/93)

1992: Pls trespassed on land of Def-agricultural fields owner/operator, to denounce working conditions: portable toilets in Def's asparagus

- 39.4 -
fields produced black sludge; no soap for washing, no cups for drinking water; Pls alerted state agencies to no avail. Pls sued: unsanitary conditions due to ineffective enforcement of state laws under CA Business, Professions C §17200.

• Pending.

Arturo Ocampo, CA Rural Legal Assistance, 242 N Sutter St Ste 411, Stockton, CA 95202

  Farmworkers
PL-851b/39.4. Briseno v. Rodney King (Los Angeles Cty Super Ct)

3/91: Pl-Los Angeles police officer severely beat Def-black motorist during arrest following freeway chase; Def hit back. 6/92: Pl sued Def for damages.

• Pending.

See PL-851/28.20; PL-851a/49.8

  Police Chutzpa
- 40.1 -
C. ADMINISTRATIVE ACTIONS
1. FEDERAL
a. CASES WON AT ADMINISTRATIVE LEVEL

PL-775/40.1. In re Old Glory Condom Co (Trademark Trial & App Bd #74/004391, 1993)

1989: Pet-Jay Critchley, artist/AIDS activist, created art exhibit of mock co, "Old Glory Condom Co," featuring co logo (red, white, blue condoms), ads playing on patriotic slogans to educate people re fight against AIDS. Pet incorporated successful exhibit as business to sell condoms. 1991: Trademark Office denied Pet's application: associating flag w/ condom would scandalize public — first time trademark denied for explicitly political reasons. Pet appealed: gov't cannot deny valuable benefit due to politically offensive speech.

• 3/93: Trademark Trials & App Bd rev'd: use of flag logo not scandalous: Pet sought to promote safe sex.

David Cole, CCR, 666 Broadway, 7th F1, NY, NY 10012

  Freedom of Speech
PL-460/40.1. Re Paying Fines of Nuclear Weapons Plants (Dept of Energy 1989)

1946-89: Private cos contracted w/ DoE to run all 17 major nuclear weapons facilities; fed'l Gov't paid normal operating expenses plus costs due to cos' negligence, including damages to 3rd parties; criminal penalties; fraudulent losses; environmental fines.

• 12/28/89: DoE announced continuation of normal expenses, new Reg ending reimbursements to contractors for other costs; listed in exchange: bigger bonus payments for excellent work.

  Nuclear Weapons
PL-584/40.1. In re Brutus (INS 1983); NLG Immigration Newsletter (1/2/84)

1940s-60s: Def-Rhodesian-born S African high school teacher/coach became active in anti-apartheid movement. 1961: S Africa banned, arrested Def at offices of Olympics Commn; Def escaped, recaptured, shot, tried/imprisoned w/ other political prisoners. 1965: Def released, banned, exiled. 1965: Rhodesia issued Def passport, Def moved to UK which issued concessionary passport, numerous visas for travel to U.S. State Dept granted waivers of excludability to promote int'l cultural exchange. (FOIA docs confirm State Dept considered Def excludable: 1) under INA §212(a)(28) for membership in Coloured Peoples Cong (CPC), previous writings for "Communist-inspired" publications in S Africa; 2) under §212(a)(19) for concealing membership in CPC.) 1970: Def came to U.S. to teach. 5/80: UK recalled concessionary passports w/ fall of white-supremacist gov't of Rhodesia. 2/81: INS Dist Dir denied Def's visa extension application: stay in U.S. too long to be of temporary nature, Def worked w/out authorization fall 1980. 8/81: INS granted Def 3rd preference status. Def applied for adjustment of status; INS denied. 9/28/81: Order to Show Cause issued: Def deportable for failure to depart U.S. at expiration of visa.

- 40.2 -

• 1981: Schwartz, ALJ: Def deportable. 1/4/82: Def applied for political asylum, withholding of deportation. Schwartz, ALJ: forwarded application to State Dept. 12/16/82: Bureau of Human Rights, Humanitarian Affairs issued opinion letter: Def should not be sent to Zimbabwe, did have right to return to UK. 1/7/83: INS notified Def's atty INS had given ALJ confidential information classified under Exec Order 12065, violating Def's constitutional rights. 2/23/83: Schwartz, ALJ: would not consider revealing classified information to Def's atty. 7/83: At h'g, Def argued: 1) well-founded fear of persecution by S African agents in S Africa, Zimbabwe; 2) never firmly resettled in UK, thus no right to return there; presented expert witnesses, news clips, reports from U.S. House Subcomm on Africa, UN Centre against Apartheid. 9/6/83: Schwartz, ALJ: granted Def political asylum.

Robert Baker, San Jose, CA; Susan Gzesh, Alexander, Fennerty & Fujimoto, Chicago, IL

  Asylum
PL-66/40.2. In the Matter of Roland Jean Pierre (INS #A26-007-050)

Pet active in formation of sugar planters union in Haiti; warned arrest imminent, hid on plantation until he left for U.S. 1/31/83: Pet filed application for political asylum w/ extensive h'g brief, memo.

• 2/15/85: Vandello, ALJ: granted asylum, withheld deportation.

James F Smith, May-Henri Cadet

  Asylum
PL-338/40.2. INS v. Pilar Martínez (Chicago INS 1987)

1982: El Salvador police, Nat'l Guard arrested, tortured Def-health care worker in Comm of Mothers, Relatives of Political Prisoners, Disappeared, Assassinated of El Salvador (COMADRES). Def fled to U.S., found sanctuary w/ U Baptist Church, Seattle. 1/85: INS arrested Def-unindicted coconspirator in AZ sanctuary trial (see PL-131/23.9): deportation. Def released, moved to Chicago.

• 5/87: Nail, ALJ: granted Def change of venue. 7/87: Def applied for asylum. State Dept Bureau of Human Rights and Humanitarian Affairs: if Def's testimony credible, she had well-founded fear of persecution. 11/9/87: Dickler, ALJ, heard testimony of deportee, 2 experts, granted asylum: Def would "indubitably" suffer persecution if deported to El Salvador.

Lisa Magarell, Seattle Joint Legal Task Force; Craig Mousin, Randall Rapp, Midwest Immig Rights Center

  Asylum
PL-256/40.2. U.S. v. Ramos (El Centro, CA INS 1988)

Salvadoran army discharged 19 yr-old corporal after mine exploded near him, affecting his nerves. Def feared forced induction by rebel spy in army, left El Salvador. 9/87: U.S. Border Patrol in CA apprehended Def who said he feared former comrade after latter joined guerrillas.

• 2/88: Cosme, ALJ: granted Def asylum; cited 9th Cir decision asylum should be granted to applicants w/ characteristic that persecutor w/

- 40.3 -
capacity to punish would seek to overcome w/ punishment. (This was 1 of 8 of 5,800 asylum petitions from Salvadorans granted nationwide in last 3 mths of 1987.)

  Asylum
PL-292/40.3. INS v. Prudencio (NYC INS 1987)

3/83: Pet left El Salvador for U.S. after being put on army death list; applied for political asylum citing harassment by Salvadoran army.

• 12/28/87: Elstein, ALJ: granted asylum to Pet. INS did not appeal.

  Asylum
PL-261/40.3. Margaret Randall v. Meese (INS); 854 F2d 472 (DC Cir 1988); cert den 109 SCt 3186 (1989)

1984: Pl-U.S.-born writer became Mexican citizen, returned to U.S., applied for permanent resident status. 10/85: INS Dist Dir denied application: Pl's writings "beyond mere dissent."

• 8/28/86: Spiegel, ALJ, denied appeal: writings advocated "world communism," violate McCarran-Walter Act. 12/22/87: Cong passed Foreign Relations Act (FRA) §901, deleting ideological provision in McCarran-Walter Act for 1 yr. INS claimed law inapplicable to case. 1988: Pl appealed: denial of application unconstitutional; FRA §901 applicable. Penn, DJ, dism'd: Pl's challenge premature, must exhaust admr process. Pl appealed. 2/4/88: DoJ announced it would not oppose appeal, due to FRA §901. 8/16/88: DC Cir aff'd, Ginsburg, CJ: dism'd w/out prejudice to Pl's eventual renewal of claims (Mikva, CJ, diss). 10/88: New FRA §901 signed, exempting those seeking permanent residency from deletion of McCarran-Walter ideological provision. INS continued deportation proceedings. 6/89: USSC denied cert. 7/27/89: BIA terminated deportation proceedings: Randall became Mexican citizen involutarily, under "economic compulsion", therefore never relinquished U.S. citizenship.

David Cole, Michael Ratner, CCR, 666 Broadway, NY, NY, 10012; Michael Maggio, Chris Painter, Cindy Lewin; Kate Martin, ACLU

  Deportation
PL-315/40.3. In re Dessima Williams (Washington, DC INS A18-697-887)

10.84: Williams-Grenadian ambassador to OAS lost position after murder of Maurice Bishop, overthrow of Gov't, U.S. invasion of Grenada. INS officials arrested Williams: illegal alien status, entering U.S. w/ invalid visa, deportable; released on $3,000 bond. INS challenged noncitizen's diplomatic status.

• ALJ terminated Williams' deportation h'g: invalidity of diplomatic status not proved. BIA aff'd. 1991: Williams received green card.

Michael Ratner, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Michael Maggio, 11 DuPont Cir NW, Washington, DC 20036

  Asylum
PL-620/40.3. In re Benítez and Benítez (NY INS A-29-521-123, 1989)

Pls-union activists in El Salvador saw family members, colleagues arrested, tortured, disappeared. Pls fled to U.S. 9/30/89: Pls applied for

- 40.4 -
political asylum.

• Under settlement in (PL-122/41.12), Salvadorans could apply for temporary protected status (TPS), seek unbiased asylum review prior to 6/30/92. U.S. extended TPS to all Salvadorans until 6/30/93 due to continuing right-wing violence in El Salvador.

Sara Ríos, Beth Stephens, CCR, 666 Broadway, 7th Fl, NY, NY 10012

See PL-620a/44.5; PL-122/41.12

  Asylum
PL-709/40.4. López v. INS (CD CA, DV 78-1912, 1992)

1978: INS raided Los Angeles shoe factory, arrested Pl-Mexican citizen, 65 other immigrants. Pls contend they were not permitted to seek legal help, coerced into waiving their rights, accepting immediate expulsion. 5/16/78: Pls filed class action: violation of 5th Amdt warning requirement for immigrants facing deportation. 5/4/82: Pls obtained TRO; 45 members rescinded waivers.

• 1982-92: in INS h'gs Pl, 30 others found not deportable. 7/29/92: parties settled: INS required — after obtaining basic "booking information" — to distribute to suspects "Notice of Rights" form informing suspects they may call, speak w/ atty, receive list of low-cost legal services, contact consular officer representing their home country, ask for h'g before ALJ, request bail. 8/20/92: Byrne, DJ: approved settlement agreement.

Peter Schey, Center for Human Rights & Constitutional Law, 256 S Occidental Blvd, Los Angeles, CA 90057

  Immigration Raid
PL-662/40.4. Mayock v. INS 714 FSupp 1558 (ND CA 1989); 938 F2d 1006 (9th Cir 1991)

1989: Aliens made FOIA requests to support asylum claims (5 USC §552(a)(6)(C)). INS ignored requests, deported aliens. Pl-immig atty sued for injunction: pattern/practice of failure to timely respond to requests violated due process, threatened lives, safety.

• 6/16/89: Legge, DJ, granted Pl summary judgment: INS required to respond to FOIA w/in 10 days: routine backlog does not constitute "exceptional circumstance .. due diligence" not exercised. 7/10/91: 9th Cir rev'd, remanded, Beezer, CJ: facts in dispute. 5/22/92: parties settled: INS must give priority to FOIA requests for aliens w/ urgent needs, must not delay responses to simple requests due to complicated requests, must search electronic databases to provide greater specificity on claims of exemption, pay atty fees.

Eric J Sinrod, Hancock, Rothert & Bunshoft, 4 Embarcadero Center, San Francisco, CA 94111-4168

  Asylum
PL-588/40.4. Women Employed v. Harris Trust & Savings Bank (U.S. Dept of Labor, Chicago)

1974: Pl filed complaint w/ U.S.: Def discriminating against women, minorities in hiring, salary, training. 1977: Pl, U.S. Dept of Labor

- 40.5 -
filed formal discrimination complaint.

• 1981: ALJ: awarded Pls $12.2 million back pay. 1983: Dept of Labor set aside decision: Def's statistical evidence improperly denied. 12/86: Litt, Ch ALJ: Def engaged in discrimination. 1/10/89: Def settled: $14 million back pay.

Marcia Greenberger, Nat'l Women's Law Center

  Employment Discrimination
PL-828/40.5. Figueroa v. NLRB (NLRB); (DC NJ #89 Civ 4499)

1987: U.S. Office of Personnel Management (OPM) altered standard procedure for security investigation of fed'l employees, revised "Questionnaire for Sensitive Positions Standard Form" (SF-86): inquired into personal matters, membership in organizations, police records, use of alcohol/illegal drugs, mental health, financial information, permitted unlimited Gov't access to employee data. Pl sued for injunction: to prevent NLRB from requiring forms: OPM, NLRB lack statutory, constitutional authority to make jobs not substantially connected w/ nat'l defense or nat'l security conditional on disclosure of employment history, personal facts.

• 1991: NLRB suspended SF-86, has not reissued. Case dropped.

Joan P Gibbs, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Ruth Harlow, ACLU-NJ, 132 W 43rd, 7th Fl, NY, NY 10036

  Right to Privacy
PL-458/40.5. In re Joyce Blau (U.S. Dept of State)

Sterling, author, described collaboration by Pet-Kurdish Studies Prof, Sorbonne, w/ KGB agent. Def sued: libel; won monetary judgment, retraction. 1968-88: Pet applied 5 times for visa to lecture at U.S. Us; State Dept denied: Pet "advocate[d] the violent overthrow of an established Gov't" (McCarran-Walter Act); gave no evidentiary basis for decision. 12/87: Cong passed Frank Amdt. 10/88: Cong amended Frank Amdt: foreigners on short-term visits not excludable for activities which would be protected if engaged in by U.S. citizens. Fall/89: Pet sought visa to speak at Columbia, Harvard Us.

• 4/90: State Dept granted visa.

David Cole, CCR, 666 Broadway, 7th Fl, NY, NY 10012

See Frank Amdt, PL-323/50.4

  Visa Denial
PL-755/40.5. Re Travel to Vietnam Regulations; American Friends Service Committee v. Brady (Treasury Dept Regs 1991); (ED PA, Civ 91-4106, 1991)

1988: U.S. Treasury issued regs under Trading w/ Enemy Act allowing individual travel to Cambodia, Vietnam, but not "arrang[ing], promot[ing] or facilitat[ing]" group travel. 1989: Gov't fined Lindblad Travel Agency $75,000, threatened to prosecute others: violation of regs. Pls sought injunction, declaration regs unconstitutional: regs thwarted educational experience, humanitarian functions.

• 1991: Gov't conceded standing, Sec'y of State amended regs to

- 40.6 -
permit organizing travel groups to Vietnam. 1/92: Cambodia travel restrictions lifted.

Franklin Siegel, Frank Deale, Margaret Ratner, Peter Weiss, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Michael Shen, Asian-American Legal Defense & Education Fund; Michael Krinsky, Nat'l Emergency Civil Liberties Comm; David Rudovsky, Kairys & Rudovsky

  Right to Travel
- 41.1 -
b. CASES WON IN COURT

PL-427/41.1. Louis Weinstein v. CIA (DC DC 1988)

1953-60s: CIA conducted MKULTRA program: brainwashing, mind-control experiments. Dr Ewen Cameron-CIA psychiatrist gave 53 Canadian patients electroshock treatments, injections of LSD, methamphetamines, sodium amytal; disguised experiments as legitimate treatment. 198_: 8 Pls-patients of Cameron sued: long-term physical, psychological damages from experiments. Pls rejected $150,000 settlement, offered research evidence, expert testimony.

• 10/4/88: Hours before scheduled trial before Penn, DJ, Pls/CIA settled: CIA paid $750,000. 12/14/88: Northern CA Psychiatric Society publicly condemned CIA, U.S. Gov't for experiments.

  CIA Experiments
PL-794/41.1. FMC Corp v. Dept of Commerce (ED PA #90-1761, 1990)

1963: Pl-chemical defense co purchased rayon manufacturing plant in Front Royal, VA. 1976: Pl sold plant to Avtex Inc. 1986: EPA placed site on Superfund priority list: carbon disulfide, arsenic, lead, zinc found in area viscose waste materials. 1/89: EPA notified Def-Commerce Dept: partly responsible under CERCLA due to WWII War Production Bd activities; Def denied responsibility as past operator, declined to participate in formal negotiations w/ EPA. 11/89: EPA directed FMC, Avtex to clean up site; Avtex filed for bankruptcy; Pl left w/ $100 million liability; Pl's attys uncovered information linking Def-gov't to waste contamination.

• 2/19/92: Newcomer, DJ: Def-gov't liable for site clean-up.

Steven Engelmeyer, Neil Epstein, 9th Fl, 1515 Market St, Philadelphia, PA 19102

  Environment
PL-787/41.1. American-Arab Anti-Discrimination Committee v. DoD (DC DC 1988)

1/2/87: DoD "5/10" rule took effect: security clearance not processed if applicant: 1) naturalized citizen lived in U.S. less than 10 yrs; 2) originally from 29 "hostile" countries (ie, Iraq, Libya, Syria). Pl sued.

• 2/88: DJ: 5/10 rule unconstitutionally discriminated against naturalized Americans from "hostile" countries. DoD rescinded rule, settled suit: DoD agreed to spend $1.2 million to advertise it may have improperly denied security clearances because of nat'l origin.

Gregory T Nojeim, ADC Legal Services Dir, 1731 Connecticut Ave NW Ste 400, Washington, DC 20009

  Nationality Discrimination
PL-394/41.1. Van Valkenburgh v. U.S. (Air Force); (CD CA Civ CV86-5988-CBM)

Beginning 8/85, Quakers held peaceful vigils at Vandenberg AFB; Air Force arrested 100+ Pls, issued bar orders prohibiting access to base. Air Force moved to prosecute Pls: violating bar orders; scheduled trial on Base, preventing attendance of those barred, including Pls' atty,

- 41.2 -
press. Pls sued. Air Force agreed to postpone proceedings, transfer to public site; refused to make permanent agreement.

• DJ granted Pls summary judgment: bar orders must permit access to criminal proceedings on base; awarded Pl atty fees.

David Cole, CCR, 666 Broadway, NYC, 10012; Barry Litt, Karen Black

  Military Bar Order
PL-346/41.2. U.S. v. Cubic Corporation (Armed Services Bd of Contract Appeals); (DC DC)

1981: U.S. Army awarded Def contract to retrofit 9,500 AN/PRS-7 hand-held mine detectors after use in Vietnam, supply 2,300 new detectors. 2/84: Army recalled detectors from field due to concerns re accuracy; terminated contract. Def filed $3.6 million claim against Gov't before Armed Services Bd of Contract Appeals. 3/25/88: DoJ sued: Def manipulated tests to measure detection abilities of mine sweepers, submitted falsified test results to Gov't for 5-10/82.

• 3/25/88: Parties settled; Def agreed to pay Gov't $7¼ million, drop claim; Def not barred from competing for other Army contracts.

William Braniff

See PL-346a/23.16

  Military Contracts
PL-415/41.2. Bay Area Peace Navy v. U.S. (Navy); (ND CA 1988); 914 F2d 1224 (9th Cir 1989)

10/87: U.S. Navy barred Pls from entering 75-yard "safety zone" during Fleet Week demonstration; rendered Pls' songs inaudible, banners unreadable to spectators. Pls sued: Def violated 1st Amdt free speech.

• Zirpoli, DJ: restrictions unconstitutional; awarded Pls atty fees. 9/14/90: 9th Cir, Canby, CJ, aff'd in part: Gov't failed to prove safety zone reasonable time, place, manner restriction, violated 1st Amdt rights of demonstrators; rev'd in part re award of atty fees to Pl: Gov't substantially justified, although did not prevail.

James L Kaller, ACLU-N CA, San Francisco, CA

  Anti-Military Protest
PL-234/41.2. Brian Willson v. Cagle (Navy); 711 FSupp 1521 (ND CA 1988)

6/10/87: Vets Fast for Life-Vets Peace Action Teams demonstrated at Concord Naval Station against arms shipments to Central America. 8/21/87: Pl wrote station commander: people would place bodies on tracks, Pl would begin fast 9/1. 9/1/87: Pl, others, sat on tracks. Train ran over, maimed Pl. DA decided not to prosecute anyone. U.S. Navy investigation revealed security manager said he gave train green light, assuming crew would see Pl, stop; crew members said they assumed green light meant tracks clear although they saw protesters on tracks. 11/87: Uninsured Pl's medical bills totalled $150,000. Navy reprimanded weapons station commander, public works dir, proposed building $12.7 million overpass across Port Chicago Highway to take munitions trains off public property. 1/25/88: Pl, wife filed $35 million claim against Navy, $45 million claim against Cty, Concord, CA Highway Patrol: violation of constitutional right to protest, int'l law.

- 41.3 -

• 11/18/87: at House Armed Services Subcomm h'gs, Reps allowed 5 of Pl's 48-page statement, eliminated Navy' proposal, reprimand; Capt Pryzby testified train going triple speed limit, station security manager said: "You might as well let them go ahead, we are going to have a confrontation sooner or later." 3/4/88: Subcomm concluded Pl, Station equally responsible; Reps Boxer, Dellums (D-CA) diss. 9/22/88: Peckham, DJ: denied Defs' motion to dismiss. 7/89: Navy ruled against punishing train crew. 1990: Gov't settled, awarded Pl $920,000.

Tom Steele, 345 California St, San Francisco, CA 94104-2105

See PL-234a/30.8; PL-287/57.1

  Contra Aid
PL-868/41.3. U.S. v. Yonkers, Bd of Education, Community Development Agency (Dept of Education); 594 FSupp 466 (SD NY 1984); 624 FSupp 1276 (1985); 635 FSupp 1538, 1577 (1986); 837 F2d 1181 (2d Cir 1987); 838 F2d 14 (1988)

6/24/80: U.S. Dept of Education notified Yonkers School Bd: Bd actions/omissions caused racial segregation of Yonkers schools, violating 1964 Civil Rights Act Titles IV, VI, 14th Amdt, contractual requirements for fed'l financial assistance. Dept asked Bd to bring system into compliance. 11/4/80: Dept notified Bd: efforts unsuccessful to obtain voluntary compliance w/ Title VI, determination of noncompliance would be referred to DoJ. 11/24/80: Bd filed complaint to enjoin Depts from taking action based on alleged violations, sought order directing Depts to resume negotiations to achieve Bd's voluntary compliance w/ Title VI.

• 12/1/80: DC denied Bd's application for TRO, preliminary injunction. 12/1/80: U.S. Atty Gen'l sued Yonkers, Community Development Agency (City), School Bd: violating 1964 Civil Rights Act Title VI, 1968 Civil Rights Act Title VIII, 14th Amdt in admr of Yonkers public schools/housing. NAACP-Yonkers joined suit on behalf of all blacks residing in/eligible for public housing, parents of public school students. 12/80: City filed counterclaim against U.S., third-party complaint against Dept of Housing & Urban Development (HUD). 12/80: NAACP filed claim against HUD. 3/19/84: NAACP claims against HUD settled by consent decree. 9/18/84: Sand, DJ: granted U.S./HUD motion to dismiss City's counterclaim, third-party complaint. 11/20/85: Sand, DJ: City liable for intentional segregation in public housing/schools, Bd liable for intentional segregation in pubic schools; ordered, inter alia, construction of 200 subsidized family housing units outside SW Yonkers, desegregation of schools, voluntary system-wide magnet school program funded by City, implemented by Bd. 12/28/87: 2d Cir, Kearse, CJ, aff'd.

Joshua P Bogin, Kenneth Barnes, Michael Barrett, Sarah Vanderwicken, DoJ Civil Rights Div; Raymond M Larizza, Calvin Davis, Kirk Victor, HUD Civil Div; all 10th & Pennsylvania Ave NW, 20530; all Washington, DC; Michael H Sussman, NAACP, 186 Remsen St, Brooklyn, NY 11201

See PL-869/42.4

  Education/Housing Discrimination
- 41.4 -
PL-324/41.4. Northwest Inland Waters Coalition v. Dept of Energy 852 F2d 572 (9th Cir 1988)

1968: All 5 nuclear nations signed Nuclear Nonproliferation Treaty: power plants' radioactive wastes to be returned to country of origin. 1986: DoE filed generic EIS based on NRC reg (NUREG-170): spent fuel rods from Taiwan to be returned to Oakland, Long Beach, Seattle ports. 3 Port Commrs rejected DoE request to unload rods. Pl sued.

• 9/12/86: Tanner, DJ: DoE to prepare either Environmental Assessment (EA) or EIS re shipping spent fuel on coastal, inland waterways; Pl could try question of financial responsibility in event of accident. 7/11/88: 9th Cir aff'd, Brewster, CJ: DoE confessed error in failing to prepare EA, conceded "reliance on ... categorical exclusion ... outdated studies was unreasonable"; required EA.

Rodney Brown; amici: WA; CA; Ports of Oakland, Long Beach; ACLU;

  Nuclear Waste
PL-416/41.4. Colorado Public Utilities Commn v. Harmon, DoE (DC CO Civ #88-Z-1524, 1988); 54 FReg 16326 (4/21/89)

1986: Pl signed agreement w/ Def allowing Pl to enforce state, fed'l nuclear transportation laws. 5/88: Def refused to pay fines for state violations. 7/25/88: Def filed application w/ Dept of Transportation (DoT) for inconsistency ruling re Hazardous Materials Transportation Act (HMTA) (49 USC §1801), Pl's Regs for Safe Transport of Nuclear Materials by Motor Vehicle (4 CCR 723-25). 4/22/88: CO declined to participate. 4/17/89: DoT found HMTA, CO Act inconsistent. 1988: Pl filed civil action w/ amici from 12 states.

• 6/26/89: Weinshienk, DJ, issued summary judgment for Pl: CO Act constitutional, consistent w/ HMTA, not violative of commerce clause, except 4 CCR 723-25 NT1(d)(4): unenforceable.

Peter J Stapp, Florence J Phillips

  Hazardous Material Transportation
PL-349/41.4. Pledge of Resistance v. National Park Service 665 FSupp 414 (ED PA 1987)

Police infiltrated Pl, learned of plan to present Vice Pres, during bicentennial celebration of U.S. Const, w/ wreath for U.S. citizens killed in Central America. 5/25/87: Independence Mall park rangers, police barred 300 protesters from celebration. 6/29/87: Pls sued to enjoin Defs from violating 1st Amdt rights to free speech, assembly.

• 7/10/87: Fullam, DJ: officials violated 1st Amdt; enjoined Defs from interfering w/ peaceful protest; no bar to protesters during remaining events; denied preliminary injunction to halt spying.

Stefan Presser, ACLU, 125 S 9th St Ste 701, Philadelphia, PA 19107

  Central America
PL-275aa/41.4. North v. Lawrence Walsh (Special Prosecutor); 656 FSupp 414 (DC DC 1987); 665 FSupp 57 (1987); 829 F2d 50 (DC Cir 1987); cert den 484 US 1066 (1988)

12/19/86: Def-ct-appointed special prosecutor, Iran-Contra affair centering on Pl-Col Oliver North. 2/24/87: Pl sued: 1) challenging

- 41.5 -
authority of Def: Const requires DoJ, not ct, appoint prosecutor to conduct investigation of fed'l law violation; 2) asking 1978 Ethics in Gov't Act, 28 USC §591, be ruled unconstitutional: infringement on law-enforcement powers of Pres. DoJ appointed Def to special post as alternative legal basis for investigation. 3/6/87: Pl filed 2d suit: DoJ had no power to grant new authority to Def.

• 3/12/87: Parker, DJ: dism'd suits as premature, ordered Def to continue investigation. 5/87: In contempt of ct action, Pl asserted Def's appointment, investigation violated Const. 7/10/87: Robinson, DJ: Def had valid prosecutorial authority to pursue investigation. 8/20/87: DC Cir, Ginsburg, CJ, aff'd. 2/22/88: USSC denied cert.

Barry S Simon, Brendan V Sullivan Jr, Terrance O'Donnell, Nicole Seligman, Williams & Connolly, Hill Bldg, 839 7th St NW, Washington, DC 20006

See PL-275/23.13

  Iran/contragate
PL-114/41.5. Hobson v. Wilson/Brennan (FBI); 556 FSupp 1157 (DC DC 1982); aff'd 737 F2d 1 (DC Cir 1984); cert den 570 US 1084 (1985); 62 FSupp 459 (1985)

1976: 4 individuals, Peace Center sued 5 FBI agents: damages for COINTELPRO operations against them.

• 1981: At trial, Pls proved false press releases to tarnish reputations, infiltration by informers, phone taps, intimidation by FBI interviewers, placing one Pl on list of "leaders of basic subversive organizations [with] greatest propensity for violence." Jury voted $711,000 damages to Pls. 1984: DC Cir: dism'd as to Defs-former DC police chief, investigators; aff'd re FBI agents subjects to "individual and conspiratorial liability"; cut award. 1985: USSC denied cert. 10/23/86: Oberdorfer, DJ: ordered 4 former FBI agents to pay more than $50,000 to Pls: participating in "unlawful plan" under FBI Dir Hoover to "expose, disrupt" Pls' constitutionally-protected rights to speak against Vietnam War, for civil rights; awarded Pls $300,000 atty fees; collected.

Anne Pilsbury, Armand Derfner, ACLU-DC

  Political Surveillance
PL-53/41.5. Spartacist League v. U.S. Attorney General (SD NY)

10/19/83: Pl sued seeking declaratory, injunctive relief; according to U.S. Atty Gen'l's Guidelines for Domestic Security/Terrorism Investigations Pl was unfairly classified terrorist org, providing pretext for political intelligence investigations by FBI.

• 11/30/84: FBI agreed to change classification of Pl-org. Suit dism'd.

Rachel Wolkenstein; Sanford Katz, White, Inker & Aronson, One Washington Mall, Boston, MA 02108

  Political Surveillance
PL-189/41.5. Frank Wilkinson v. FBI 633 FSupp 336 (CD CA 1986)

5/5/66: Carl, Anne Braden, officers, Nat'l Comm Against Repressive Legislation (NCARL) predecessor, donated personal papers to WI

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State Historical Society on pledge of confidentiality. 3/80: Pl-Exec Dir Emeritus, NCARL, sued to stop FBI surveillance, harassment intended to "neutralize" NCARL. FBI sought discovery from Braden collection to defend against suit. Braden sought protective order against discovery. WI Atty Genl's amicus brief argued infringement of donor's right of privilege would be detrimental precedent to state's interest. Center for Law in Public Interest amicus: FBI request would infringe on qualified 1st Amdt privilege of archives, libraries; restricted access of scholars to archival personal papers promotes public interest in free flow of information while protecting donor's privacy interests.

• 7/87: FBI relinquished claim to Braden files. 8/25/87: Tashima, DJ, approved settlement: FBI compelled to: 1) turn over 132,000 pages on Pl to NCARL; 2) Pl, NCARL entitled to review material blacked out by FBI to determine if deletions bona fide; 3) FBI compelled to turn over all files on Pl, NCARL to Nat'l Archives in Washington to be placed under 50-yr seal; 4) permits recovery for damages for surveillance docs collected after passage of 1975 Privacy Act (5 USC §552). Pl awarded atty fees for time spent uncovering docs under FOIA.

Frank Wilkinson, NCARL; Paul Hoffman, ACLU; Douglas Mirell, Peter Scolney, Debra Albin-Riley, Steven Tapia, David Crochetiere, Kenneth Russak; amici: Bill Lee, Center for Law in Public Interest; Bronson La Follette, Atty Gen'l, WI

  Political Surveillance
PL-431/41.6. Bernardo Pérez v. FBI (WD TX #87-CV-10)

1/14/87: Pl-FBI agent sued FBI: discrimination against Hispanic agents: only 400 of 9,000 agents; disciplined, not promoted. 311 agents joined suit. 1/88: Internal investigation by FBI uncovered serious deficiencies. 2/88: FBI Dir ordered changes in FBI's affirmative action program.

• 8/88: After bench trial, Bunton, DJ: Pl victim of retaliation by white supervisors due to filing complaint; FBI systematically discriminated in promotions, assignments. 5/5/89: Bunton, DJ: FBI to overhaul promotion system for Hispanics, other minorities, limiting discretion of senior FBI officials; Def to promote Pl w/in 45 days to position commensurate w/ experience; 3-person panel of independent attys to determine, case by case, whether 311 agents entitled to promotions, subject to appeal to DJ; denied Pl's requests for back pay, damages, quota system to insure promotions. 11/88: U of MI Law School dean wrote FBI Dir barring FBI recruiting due to discrimination. 8/21/89: FBI decided not to appeal.

  Racial Discrimination
PL-248/41.6. Haase v. Webster/Sessions, Dir, FBI 608 FSupp 1227 (DC DC 1985); 807 F2d 208 (DC Cir 1986); 835 F2d 902 (1987)

1/85: U.S. Customs, FBI agents stopped Pl-journalist returning from Nicaragua, detained 5 hours; seized, photocopied Pl's papers under 19 USC §1305 (permitting Customs to seize materials "likely and intended to produce imminent lawless action"). Pl sued for return of materials.

• DJ granted Pl TRO, ordered papers returned: incident isolated, unlikely to recur; denied Pl's challenge to policy, quest for information

- 41.7 -
re FBI dissemination of docs. DC Cir: rev'd dismissal of Pl's claim for equitable relief challenging FBI, Customs policies. On remand, DC limited Pl's right to present case on "national security" grounds. Pl challenged terms of remand; DC Cir granted Pl's request. Injunctive relief on Customs policy gained in (PL-247/41.19); Pl dropped suit. DC denied atty fees. 2/16/90: DC Cir, Silberman, CJ, aff'd (3-0).

David Cole, Morton Stavis, Michael Ratner, CCR, 666 Broadway, 7th Fl, NY, NY 10012; John Privitera, Michael Maggio

  Nicaragua
PL-412/41.7. Donald Rochon v. FBI (ED PA); (EEOC); (DoJ); 691 FSupp 1548 (DC DC 1988); 710 FSupp 377 (1989); 734 FSupp 543 (1990)

1983: Pl-African-American FBI agent, Omaha, NE; Agent Dillon pasted ape's head over photo of Pl's son; someone placed photo of bruised face of black man in Pl's mail slot. Pl filed formal complaint; harassment by white FBI agents continued. Def transferred Pl to Chicago; harassment intensified. 1985: Pl received 2 unsigned death threats. Pl complained to DoJ, EEOC. 1986: Pl's white wife received obscene, threatening phone calls; emotional toll led to divorce. Pl sued for damages against white agents, FBI. EEOC held admr investigation: Dillon led campaign against Pl. FBI transferred, did not demote Dillon. DoJ made similar investigation w/ similar findings. 2/88: House Subcomm on Civil & Constitutional Rights h'g: FBI Dir Sessions admitted "a number of areas ... needed attention." Defs moved to dismiss claims.

• 8/11/88: Richey, DJ: dism'd all claims due to defects in pleading, legal theory except claim under Title VII, 1964 Civil Rights Act. Pl, Defs moved for partial summary judgment on Title VII claim. 4/13/89: Richey, DJ: denied Pl's motion as to DoJ, Atty Gen'l, FBI dir; granted Atty Gen'l's motion: dism'd as untimely Pl's Title VII claims arising out of Omaha office. Atty Gen'l made 3 motions for summary judgment as to alleged violations of Title VII at Chicago office through Pl's transfer to Philadelphia. 4/16/90: Richey, DJ: denied motions. 8/9/90: Parties settled: Pl to leave FBI, receive $1+ million; FBI to discipline 8 white agents.

David Kairys, Adam Thurschwell, Philadelphia, PA; David J Shaffer, Washington, DC; Prof Allan R Stein, Rutgers-Camden, NJ

  Racial Discrimination
PL-754/41.7. Albert Bates v. Dept of Justice, U.S., FBI 767 FSupp 857 (MD TN 1991)

8/88: Natural Rights Center requested information from FBI re surveillance of director, organization under FOIA. 5/15/92: FBI refused. Pl sued. Def moved to dismiss. 6/5/92: Pl sought summary judgment, FBI justification.

• 2/7/91: Wiseman, DJ: FBI must immediately release all disclosable information it wrongfully contends to be exempt under 5 USC §552 (b)(7)(d); awarded Pls $16,000 atty fees.

A Bates; Natural Rights Center, 156 Drakes Lane, Summertown, TN 38483

  Freedom of Information
- 41.8 -
PL-238b/41.8. Committee in Solidarity with People of El Salvador (CISPES) v. FBI; Alliance to End Repression v. Chicago, FBI 91 FRD 182 (ND IL 1981); 742 F2d 1007 (7th Cir 1984); (ND IL #74 C 3268, #75 C 3295 1989, 1991, 1992, 1993)

10/11/81: Getzendanner, DJ: issued consent decree barring Chicago FBI from needlessly investigating political groups. 1983-85: FBI agents: paid infiltrators to join CISPES, obtain copies of bank/phone records; followed CISPES leader, included his photo in FBI's nat'l album of terrorist suspects. 1987-89: FBI: refined investigation review process to ensure that if political activities are investigated, high level officials are aware of investigation, investigation justified; ordered additional training of agents on how to deal w/ activities protected by 1st Amdt, disciplined agents connected w/ CISPES investigation, made arrangements to move all records to Nat'l Archives. 1989: Pls sued Defs: violation of consent decree; sought summary judgment, enforcement of 1981 decree, order of compliance, expungement of records collected, training of FBI re decree, atty fees: 42 USC §1988. Defs sought summary judgment: no cause of action (policy, procedure changes mooted request for relief).

• 10/2/91: Williams, DJ: granted Pls' summary judgment motion. 9/22/92: Lefkow, Magis, recommended granting Pls' motion for expungement of all names, other data identifying Chicago CISPES members/associates from gov't records. 10/9/92: Williams, DJ: granted motion. 5/21/93: Lefkow, Magis, recommended granting order requiring FBI to draft, submit training material w/in 90 days to Pls' counsel to review. Pending.

Richard Gutman, CISPES, PO Box 50139, F St Station, Washington, DC 20004

See PL-238/43.9, PL-238a/52.1

  Freedom of Association
PL-563/41.8. Coriolan v. INS 559 F2d 993 (5th Cir 1977)

2 Haitian Pets entered U.S. illegally. 7/13/75: At deportation h'g, Pets testified re attacks on family members, persecution of returnees who fled Haiti illegally; sought asylum under 1952 INA §243(h) (8 USC §1253(h)): Atty Gen'l may grant asylum to alien facing persecution.

• ALJ denied asylum. BIA aff'd. 5th Cir rev'd (2-1), Tuttle, J: UN Protocol Re Status of Refugees should expand §243(h); ALJ's premise that political persecution requires overt political activity inconsistent w/ Haitian realities; INS must take note of conditions in alien's country; prosecution for illegal departure constituted persecution in many previous cases; remanded for reconsideration under §243(h) in light of Amnesty Int'l report on conditions in Haiti.

Donald Bierman, Donald Ferguson, Miami, FL

  Asylum
PL-597/41.8. Pedro Rodríguez-Fernández v. Wilkinson (INS); 505 FSupp 787 (DC KS 1980); 654 F2d 1382 (10th Cir 1981)

6/2/80: Pl-Cuban nat'l convicted of crimes involving moral turpitude in Cuba arrived in FL seeking admission as refugee. INS detained Pl at

- 41.9 -
Leavenworth; at exclusionary proceedings, INS issued deportation order. Cuba refused deportation. Pl filed habeas petition: continued confinement w/out bail/criminal charges is: 1) cruel, unusual punishment under 8th Amdt; 2) violation of due process; 3) violation of int'l law (UDHR, American Convention on Human Rights).

• 12/31/80: Rogers, DJ: aliens detained pending exclusion do not enjoy "panoply" of rights guaranteed citizens under U.S. Const; extended, indefinite confinement in prison was arbitrary, abuse of discretion by Atty Gen'l violated principles of customary int'l law; gave U.S. Gov't 90 days to release Pl. Pres Reagan appointed special task force to examine Cuban refugees being detained. 4/23/81: DC denied Govt request for 60 day extension to deport/release Pl. 7/9/81: 10th Cir, Logan, CJ: INA does not permit indefinite detention as alternative to exclusion; parole of detained, excludable alien is in absolute discretion of Atty Gen'l, need not be w/in U.S., country of origin; freedom from arbitrary imprisonment is fundamental principle of int'l law under UDHR, American Convention on Human Rights.

Henri J Watson, Dennis D Goodden, Kansas City, MO

  Cuban Alien
PL-558/41.9. Haitian Refugee Center v. Smith, U.S. Atty Gen'l 503 FSupp 442 (SD FL 1980); 676 F2d 1023 (5th Cir 1982)

Late 1978-79: INS conducted accelerated program for reviewing Haitians' political asylum applications; over 4,000 processed, none granted. 5/9/79: Pls filed class action: INS violated 5th Amdt due process, equal protection.

• 7/2/80: King, DJ: enjoined INS from deporting Pls, processing new applications w/out prior DC approval. 5/24/82: 5th Cir aff'd, modified, Hill, CJ: Pls, aliens had right to petition for asylum (UN Protocol Relating to Status of Refugees, stats), right to due process; Pls did not have to exhaust admr remedies before challenging pattern of violating "constitutional rights of a class of aliens"; order to submit plan for reprocessing proper; DJ's injunction from deportations, processing new claims too broad: INS can act under preexisting procedures, must seek DC approval for exceptional/accelerated action; DJ's citing of conditions in Haiti relevant only to show serious nature of asylum claims, not to rule on merits of claims.

Peter Schey, Los Angeles, CA; Gary Caldwell, FL Rural Legal Services; Dale Swartz, Washington, DC

  Asylum
PL-392a/41.9. Fernández-Roque v. Smith 622 FSupp 887 (ND GA 1985); 781 F2d 1450 (11th Cir 1986)

Cubans arrived as part of Mariel "Freedom Flotilla", in response to invitation of U.S. Pres. U.S. incarcerated Pls in Atlanta fed'l penitentiary. U.S. paroled some into U.S.; Pls remained confined. Pls filed class action: violation of int'l law, ICCPR Art 9(1).

• 11/25/85: Shoob, DJ: 1) Pls had standing to have claim decided on merits; 2) Pls detained as mental incompetents/convicted criminals had no liberty interest in parole to justify relief; 3) other Mariel Cubans had protected liberty interest in parole based on invitation

- 41.10 -
of U.S. Pres, entitled to U.S. Const due process. 1986: 11th Cir: denied motion to reverse, granted stay in part, denied in part.

Myron Kramer, 1360 Peachtree NE, 30309; Kenneth Hindman, 880 W Peachtree, 30357; Dale Schwartz, 600 Peachtree, 30308; Deborah Elsel; all Atlanta, GA; David A Webster, 50 N Laura Ste 3300, Jacksonville, FL 32202; amici: ACLU, Lawyers Comm for Int'l Human Rights, NY

See PL-392/30.2

  Mariel Cubans
PL-395/41.10. José Sánchez v. Rowe (INS); 651 FSupp 571 (ND TX 1986); 870 F2d 291 (5th Cir 1989)

Def-border patrol official arrested Pl at work; ordered Pl to sign voluntary departure form; Pl refused; Def harassed, beat Pl. Pl sued Def, U.S.: torts of assault, battery, Fed'l Tort Claims Act (FTCA); violations of 4th, 5th Amdts; Def, U.S. could not claim immunity.

• 8/86: Robinson, DJ: when Gov't official violates constitutional rights, Pl has a Bivens action (PL-605/42.3, 403 US 388 (1971)) against individual as well as FTCA; punitive damages may be awarded in suit; assessed $10,000 punitive damages against Rowe. 4/18/89: 5th Cir, Rubin, CJ: aff'd action, denied Pl atty fees.

Lee Teran

See Bivens, PL-605/42.3

  Government Misconduct
PL-568/41.10. INS v. Linnas (Estonia Sup Ct 1962); 527 FSupp 426 (ED NY 1981); 790 F2d 1024 (2d Cir 1986); cert den 479 US 995 (1986)

1941-43: Def-guard, commander, Tartu death camp, Estonia where 13,000 Eastern Europeans executed. 1951: Def entered U.S. under U.S. Gov't resettlement program, concealed role in Estonia. 1960: Def naturalized. 1962: Estonia Sup Ct tried Def in absentia; convicted; sentence: death. 1979: INS arrested Def: deportation.

• 6/30/81: Mishler, DJ: Def had hidden role, ordered denaturalization. 1983: after h'g, ALJ ordered Def deported to USSR. 1985: BIA aff'd. Def appealed: order deprived him of due process, equal protection. 5/8/86: 2d Cir aff'd (3-0), Altimari, CJ: evidence included Soviet-supplied docs, depositions taken by U.S. in Estonia under Soviet supervision, showed Def headed camp, participated in atrocities. 12/1/86: USSC denied cert. 2/87: U.S. Atty Gen'l Meese allowed Def 30 days to find another country for refuge; 16 countries refused. 4/6/87: Marshall, J: issued temporary stay of deportation to allow USSC to consider order. 4/15/87: Panama refused U.S. request to grant Def asylum. 4/21/87: USSC rejected (6-3) Def's final appeal; Def deported. 7/2/87: Def died after heart operation.

  War Crimes
PL-26/41.10. Orantes-Hernández v. Thornburgh (INS); 541 FSupp 351 (CD CA 1982); modified 685 FSupp 1488 (1988); 919 F2d 549 (9th Cir 1990)

3/4/82: Salvadoran refugees filed class action charging illegal practices by INS agents under 1980 Refugee Act (94 Stat 102, 8 USC §§1101(a)

- 41.11 -
(42)(A), 1158(a), 1252(a), (b)) toward refugees seeking political asylum in U.S.: INS agents frequently coerced refugees into electing "voluntary" departure, failed to advise refugees of right to seek political asylum, allow effective assistance of counsel (8 USC §1252(b)(2)), guarantee confidentiality of information submitted in support of political asylum applications.

• 4/82: Kenyon, DJ: dispensed w/ exhaustion requirement when "some class members would never be able to raise" claims or secure redress; issued injunction halting challenged practices. 7/84: trial stayed pending outcome of FL case involving Haitian refugees. 7/86: Trial resumed. 4/29/88: DJ made extensive factual findings: INS acted in bad faith by willfully, consistently violating temporary injunction of 4/82; INS must stop coercion of Salvadorans seeking asylum, ensure access to legal counsel, not transfer unrepresented detainees for 7 days after arrest; issued permanent injunction. 11/20/90: 9th Cir aff'd, Schroeder, CJ: rejected all INS claims of changes in practices.

Linton Joaquín, Central American Refugee Center; Sandra Pettit, Sheila K Neville, Immigrants' Rights Office, Legal Aid Foundation; Charles Wheeler, Center for Human Rights and Constitutional Law, 256 S Occidental Blvd, 90057; Mark Rosenbaum, ACLU-S CA, 1616 Beverly Blvd, 90026; both Los Angeles, CA; Paula Pearlman, San Fernando Valley Neighborhood Legal Services; Vera Weisz, Thomas Edwards, Jeanette E Stokely, Dan Marmalefsky, Mark Van Der Hout, Miriam Hayward, NLG

  Refugees
PL-360/41.11. Desir v. Ilchert (INS); 840 F2d 723 (9th Cir 1988)

9/11/81: Pl-Haitian entered U.S.; held in custody. At exclusion h'g, Pl sought political asylum, testified the fled after refusing to bribe Tonton Macoutes (Gov't security forces).

• 1982: INS Ct ordered exclusion. 3/7/88: 9th Cir: extortion by Macoutes, including assaults, imprisonments, constitute political persecution under INA §§101(a)(42)(A), 243(h)(1); rejected INS claim alleged extortion by Macoutes was personal matter; approved (3-0) political asylum for Def.

Bob Baizer

  Asylum
PL-455/41.11. M.A. A26851062 v. INS 858 F2d 210 (4th Cir 1988)

1982: Pet-Salvadoran evaded draft, entered U.S. w/out inspection. INS granted voluntary departure; Def overstayed date. 1985: INS arrested Def. New counsel filed motion to reopen, requested asylum.

• ALJ denied Def's motion. BIA aff'd. 4th Cir rev'd, remanded for consideration of asylum. On remand, ALJ denied asylum: Pet failed to prove specific threat of persecution. BIA aff'd, denied Pet's claim under 4th Geneva Convention against deportation to country at war. 1988: In Ct of App, Pet presented reports from Americas Watch, Amnesty Int'l, expert testimony establishing military atrocities, torture/execution of draft evaders in El Salvador. 4th Cir rev'd: Pet required to show routine persecution of group to which he belonged; personal

- 41.12 -
threat of persecution not required; draft evaders seeking asylum on opposition to military atrocities, not on political opposition, must show, as set forth in UN High Commr for Refugees Handbook (1979), atrocities are: "contrary to basic rules of human conduct", pervasive, not restrained by Gov't; "reasonably possible" Pet would be punished for draft evasion; rejected BIA distinction between atrocities by Gov't against own people, invaded nation.

  Asylum
PL-459/41.12. Efrain Martínez-Cabrera v. Thornburgh (INS); (SD TX #B-89-126 KMH)

12/88: Pl fled Guatemala, entered U.S. in TX, applied for asylum. 3/17/89: INS denied asylum, detained Pl for deportation h'g. 3/31/89: Auslander, ALJ: ordered deportation. 4/5/89: Pl reappeared before ALJ due to clerical error, ordered released. INS took Pl, violated order. ALJ discovered error, reopened case. INS deported Pl anyway.

• 1989: Hoyt, DJ: ordered Pl returned to U.S. due to violations of equal protection, due process, 1980 Refugee Act.

Peter Schey, Center for Human Rights & Constitutional Law, 256 S Occidental Ave, Los Angeles, CA 90057; Mark Schneider, Casa de Proyecto Libertad, 306 E Jackson, Harlingen, TX 78550

  Asylum
PL-319/41.12. Montes v. Thornburgh (INS); (CD CA 1987); 919 F2d 531 (9th Cir 1990)

1/6/86: Daniel, ALJ: instituted policy of restrictive filing requirements, rejecting refugees' asylum applications. 6/23/86: Pls filed class action seeking declaration that ALJ's policy violated INA (8 USC §1101).

• 6/25/86: Robie, Ch ALJ: suspended filing requirements of ALJ Daniel. 7/11/86: Pls moved to reopen cases of all refugees whose applications denied by ALJ. Cases reopened. 8/12/87: Tashima, DJ: dism'd suit: moot. 12/4/87: DJ awarded atty fees to Pls under Equal Access to Justice Act (28 USC §2412): Pls prevailing party because achieved results directly from litigation, 707 F2d 1082; ALJ not "substantially justified," clearly contrary to applicable law. 11/16/90: 9th Cir aff'd, Browning, CJ: Pls challenging policy/practice of DJ in processing asylum claims, over which DC had jurisdiction.

Peter Schey, Center for Human Rights and Constitutional Law, 256 S Occidental Blvd, Los Angeles, CA 90057

  Asylum
PL-122/41.12. American Baptist Churches v. Thornburgh, INS 666 FSupp 1358 (ND CA 1987); 712 FSupp 756 (1989); 760 FSupp 796 (1991)

5/7/85: Nearly 80 religious, Central American refugee groups sued Atty Gen'l, INS Commr: violation of sanctuary workers' rights; sought declaratory, injunctive relief to prohibit: 1) new prosecutions of sanctuary workers for criminal harboring, transportation (8 USC §1324(a)); 2) INS from arresting/deporting Central American refugees in U.S., pending changes in region; sought ct declaration: sanctuary legal under int'l law, (PL-356/50.2). 1/31/86: U.S. filed motion to dismiss. 11/26/86: Cong amended criminal harboring,

- 41.13 -
transportation stat (1986 IRCA).

• 3/30/87: Peckham, DJ, denied motion to dismiss: churches have standing; immediate threat of prosecution of sanctuary workers exists; church Pls need not wait until member prosecuted to challenge U.S. actions; Pls may try to prove exemption from prosecution for sanctuary workers does not threaten enforcement of immig laws; Pls may proceed on claim U.S. prosecution of sanctuary workers in bad faith: harassment. 3/24/89: Peckham, DJ, dism'd sanctuary workers' claims, certified Salvadorans, Guatemalans as Pl class, denied asylum: 1) Pls lack standing on 1st Amdt claim of deterrent effect because of change in 1986 stat away from prosecution of sanctuary workers; 2) Pls did not prove only sanctuary workers prosecuted, since U.S. prosecuted 5,875 in 1984-86 under §1324; 3) Pls' acts not symbolic speech; 4) Pl-org represents many w/ specific stake in Def's enforcement of IRCA; 5) no need to exhaust when admr remedies futile: political asylum granted only 3% of Salvadorans, 1% of Guatemalans; 6) Pl-org lacks standing re members' individual claims requiring individual proof; 7) 1949 Geneva Convention IV does not provide right of temporary refuge to Salvadorans/Guatemalans in U.S.; 8) Cong rejected norm of temporary refuge; 9) Pls may try to prove U.S. exercises power to grant extended voluntary departure (EVD) discriminatorily; 10) Cong has instructed Exec nationality may not be considered when applying (§208(a), INA §243(h)); 11) Pls may continue discovery. 10/1/90: INS enacted new guidelines requiring asylum officers to consider conditions of applicant's home country. 11/90: Cong passed Temporary Protected Status law allowing Salvadorans in U.S. on 9/19/90 to register, stay in U.S. until 6/30/92. 12/19/90: U.S. settled: 1) all Guatemalans in U.S. on 10/1/90, all Salvadorans in U.S. on 9/19/90 (estimated 500,000 people), can apply/reapply for asylum; 2) all deportation h'gs stayed while new applications considered; 3) applications to be reviewed under new guidelines; 4) INS prohibited from considering applicants' ideological beliefs, U.S. relations w/ applicants' home country; 5) State Dept must give specific facts, reasons, to recommend denial of any applicant; 6) INS will not automatically defer to State Dept recommendation of denial; 7) U.S. to conduct $200,000 campaign to inform Guatemalans, Salvadorans of new rights; 8) U.S. to pay $890,000 atty fees. Pls' counsel to monitor new h'gs.

Morton Stavis, Frank Deale, Sarah Wunsch, Ellen Yaroshefsky, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Marc Van Der Hout, Teresa Bright, NLG, 3689 18th St, 94110; Ephraim Margolin, Sandra Coliver, James J Garrett, Monique Van Yzerlooy, Morrison & Foerster, 345 California St, 94104; all San Francisco, CA

  Sanctuary
PL-635/41.13. Presbyterian Church v. U.S. (INS); 870 F2d 518 (9th Cir 1989); 752 FSupp 1505 (DC AZ 1990)

3/84-1/85: INS agents investigating sanctuary movement infiltrated 4 Pls-churches w/out warrants, recorded services. During criminal prosecution of individuals in movement, surveillance disclosed. 1986: Pls sued for declaratory, injunctive relief: Defs violated 1st Amdt freedoms of religion, speech, committed illegal search (4th Amdt);

- 41.14 -
caused fear, decline in church membership, failure of 2 churches.

• 1986: Hardy, DJ, dism'd: churches as orgs lack standing under 1st Amdt; claims barred by sovereign immunity under APA (5 USC §702). 3/15/89: 9th Cir rev'd, remanded, Norris, CJ: Pls suffered injuries, have standing; APA does not prevent declaratory, injunctive relief; Pls cannot seek damages from individual agents; remanded to DC to determine threat of future injury, need for injunction. 12/10/90: Strand, DJ, granted summary judgment in part for Pls: Defs violated Pls' freedom of religion; gov't precluded from inappropriate covert activity that abridges 1st Amdt freedoms; warrant unnecessary when agent invited to participate in suspected crime.

Peter Baird, Phoenix, AZ

  Sanctuary
PL-590/41.14. Ayala-Martínez v. INS (BIA, INS #A24-348-629); 914 F2d 261 (9th Cir 1990)

1983: Pl-Green Cross paramedic fled El Salvador to U.S. after repeated death threats; family members, coworkers murdered by Salvadoran army, paramilitary death squads. Pl sought political asylum: reasonable possibility of political persecution if return to country. INS refused to grant political asylum, ordered deportation.

• 9/25/90: 9th Cir panel, Fletcher, Pregerson, Nelson, CJs: halt pending deportation; Pl eligible for political asylum: likely Pl would be persecuted if returned to El Salvador; remanded.

  Asylum
PL-858/41.14. René Alberto Beltrán-Zavala v. INS (BIA No A28 787 221); 912 F2d 1027 (9th Cir 1990)

6/81: Pl-Salvadoran fled "Esquadrón de Muerte" (death squad), entered U.S. w/out inspection. Def arrested: selling marijuana ($10); pleaded guilty; sentence: 2 yrs probation. 5/87: Pl arrested: auto theft; probation revoked. Pl received INS Order to Show Cause why he should not be deported. Pl applied for asylum.

• After h'g, ALJ rendered oral decision: Pl presented prima facie case for asylum, but asylum denied when Pl convicted of a "particularly serious crime" (8 USC §1253(h)(2)(B)). BIA dism'd appeal. 8/31/90: 9th Cir vacated, remanded, per curiam: INS erred in determining Pl had not shown a "well-founded fear of persecution"; Pl eligible for asylum; BIA to determine whether selling marijuana is "particularly serious crime" in light of 18 I & N Dec 244 (1982). [Factors determining seriousness of crime: nature of conviction; circumstances/underlying facts of conviction; type of sentence; whether alien is danger to community, Id, at 247.]

Wynne S Carvill, Elizabeth Thompson, Theresa Helmer, Thelen, Marrin, Johnson & Bridges, 2 Embarcadero Center, San Francisco, CA 94111

  Asylum
PL-266/41.14. Patricia Lara v. INS Officials (SD NY 1986)

1982: Pl-Colombian journalist, Columbia U alumna, El Tiempo reporter, published book of interviews of M-19 guerilla movement

- 41.15 -
members. 1984: Pl lauded tentative truce in guerrilla war. 1985: Pl criticized M-19 for reversion to violence in deadly attack on Palace of Justice in Bogotá. 3/85: Pl vacationed in U.S. 10/12/86: Pl arrived at Kennedy Airport w/ visa to receive award from Columbia U; INS detained Pl: listed in INS "lookout book for undesirable aliens": held Pl 5 days, 2 nights under maximum security in solitary confinement. Colombian Gov't protested, requested Pl's release in custody of Colombian ambassador to receive award. State Dept refused.

• 10/86: After INS h'g, Pl excluded, returned to Colombia. 11/16/86: Asst Sec'y of State, Inter-American Affairs Abrams charged on TV Pl high-ranking member of M-19; Pl denied charge: Colombian death squads murdered 600 supposed M-19 members from 1-6/86. Pl sued INS for $10 million: deprivation of liberty. 1/91: Pl settled for visa.

Arthur Helton, Lawyers Comm for Human Rights, NY, NY

  Visa Denial
PL-628/41.15. González-García v. INS 923 F2d 861 (9th Cir 1991, not appropriate for publication, citation)

1970s: Guatemalan Work Party tortured, murdered Pl's husband-Party member, guerrilla. 1979: Pl-Guatemalan citizen received numerous death threats signed by Party. 6/14/86: Pl entered U.S.; INS arrested: illegal alien. Pl requested political asylum. ALJ denied. On appeal to BIA, Pl contended reasonable, well-founded fear of persecution under INA, 8 USC §1158(a). BIA denied claim.

• 1/16/91: 9th Cir rev'd, Ferguson, Thompson, CJs: Pl eligible for political asylum: showed fear of persecution reasonable.

  Asylum
PL-564/41.15. Pearl Meadows Mushroom Farm v. Nelson, Commr, INS 102 FRD 457 (ND CA 1983); 643 FSupp 884 (1986); 799 F2d 547 (9th Cir 1986); 723 FSupp 432 (1989); (ND CA #C-82-1896 JW, 1991)

1982: Pls filed class action: during Operation Jobs nat'l sweep, other workplace raids, INS conducted illegal search/seizure; targeted Latino workers for harassment, seizure; physically/verbally abused Latinos (4th, 5th Amdts). INS sought to introduce evidence to differentiate rights of citizens/residents, undocumented immigrants; Pls filed motion to exclude evidence of unlawful immigration status.

• 12/19/83: Aguilar, DJ: granted Pls motion to exclude evidence. 9/4/86: Aguilar, DJ: issued temporary injunction barring INS from discriminatory enforcement, illegal search/seizure. 1986: Cong passed IRCA (Pub Law 99-603 §315(b), 100 Stat 3359): fines, imprisonment of employers of undocumented workers. 9/11/86: 9th Cir, Wright, CJ: aff'd temporary injunction. 1/89: Trial began, Pls called nearly 100 witnesses re: INS harassment. INS argued violations were "deviant behavior", "not institutional pattern"; Pls indicated no INS agent ever formally disciplined for violating rights of person in workplace. 8/24/89: Aguilar, DJ: denied Def's motion to dismiss: evidence sufficient to show pattern, practice of unconstitutional workplace entry w/out warrants, uncoerced consent. 12/17/91: Infante, Ware, JJ, approved settlement: 1) valid warrant, consent, exigent circumstances necessary for INS agent to enter workplace other than public area, open field; 2) detention valid only if "reasonable, articulable, individualized

- 41.16 -
suspicion" exists that suspect illegal, fails to have docs; 3) "valid detention, arrest, or seizure of a person cannot be based solely on that person's ethnic characteristics."

John True, Employment Law Center; Orrick, Herrington & Sutcliffe, 600 Montgomery St, 94111; both San Francisco, CA; Mexican-American Legal Defense & Education Fund; ACLU-N CA

  Immigration Raids
PL-638/41.16. Fouad Rafeedie v. INS 688 FSupp 729 (DC DC 1988); 880 F2d 506 (DC Cir 1989); 795 FSupp 13 (1992)

INS charged Pl-Palestinian permanent resident in U.S. 14 yrs w/ associating w/ Popular Front for Liberation of Palestine; invoked summary exclusion under McCarran Walter Act section allowing expulsion of noncitizen based on secret evidence w/out notice, access to evidence, or h'g; provision not previously used against permanent resident. 2/88: Pl sued: permanent resident entitled to same due process, constitutional protections as citizens.

• 6/88: DC issued preliminary injunction barring summary exclusion of Pl. 7/89: DC Cir aff'd: permanent residents entitled to due process in deportation proceedings. 5/28/92: Green, DJ: procedures INS sought to use unconstitutional; substantive charges violated Pl's 1st Amdt rights; noncitizens entitled to 1st Amdt protection; resident noncitizens cannot be expelled for political assns. INS appealed, dropped appeal. Pl appealed: injunction should have been broader. Pending.

David Cole, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Marc Van der Hout, 3689 18th, San Francisco, CA 94110; Kerry Kircher; Michael Maggio, NLG Visa Denial Project; James Fennerly

  Palestinians
PL-598/41.16. José Roberto Canas-Segovia v. INS (INS Nos A26-790-253, -255); rev'd 902 F2d 717 (9th Cir 1990); vacated, remanded 112 SCt 1152 (1992); 970 F2d 599 (9th Cir 1992)

1/26/85: Pets-brothers, El Salvador natives, entered U.S. illegally. 12/16/89: At joint deportation h'g, Pets applied for asylum under INA, 8 USC §1158(a): 1) Salvadoran policy of mandatory military service w/out CO status violated religious beliefs as Jehovah's Witnesses, amounted to religious persecution; 2) refusal to serve in military would cause Pets to be viewed as political enemies of Gov't, expose Pets to extrajudicial sanctions, torture, death, citing UN Handbook on Procedures and Criteria for Determining Refugee Status paras 167-174.

• 1989: ALJ denied asylum, dism'd UN doc: written before passage of 1980 Refugee Act. BIA aff'd: Pets failed to demonstrate they were singled out for persecution due to religious beliefs. 4/24/90: 9th Cir rev'd, Wright, CJ: while universal conscription would not necessarily amount to persecution, where person refused to serve for genuine reasons of conscience (ie, religious beliefs), he would suffer disproportionately severe punishment if forced to serve, sacrificing his religion's fundamental principle of pacifism (UN Handbook paras 172, 196, 197). 2/24/92: USSC granted cert, vacated, remanded to review in light of (PL-917/42.9). 7/10/92: 9th Cir remanded (3-0), Wright, CJ: 1) to dismiss Pet-Oscar's petition: moot; Pet married U.S. citizen,

- 41.17 -
received conditional residence status, returned to El Salvador for immigrant visa; 2) grant Pet-José's petition: theory of imputed political opinion; USSC made clear in that Pet must show evidence persecutor's motive stems from protected cause, ie, "political opinion"; ct believes religious opinion also protected; "imputed political opinion, by definition, includes an element of motive."

Karen Musalo, Refugee Human Rights Clinic, USF Law School, San Francisco, CA; amici: Amnesty Int'l, UN High Commr for Refugees

See PL-917/42.9

  Asylum
PL-348/41.17. Public Citizen v. Burke (Nat'l Archives); 655 FSupp 318 (DC DC 1987); 843 F2d 1473 (DC Cir 1988)

1974: Cong assigned Nat'l Archives to take custody of Pres Nixon's materials, make public those not "confidential." Nixon sought to block disclosure of thousands of pages: exec has limited privilege to maintain confidentiality of communications w/ close advisors. 2/18/86: Office of Legal Counsel issued legal memo upholding ex-Pres' power to block disclosure: separation of powers. Pl-public interest group sued challenging memo.

• 3/6/87: Revercomb, DJ: memo not binding on presidential archivist, not compelled by Const, thwarted legislative intent of Presidential Recordings & Materials Preservation Act. 4/12/88: DC Cir (unanimous): memo "erroneous", allowed Archives freedom to make materials public unless blocked by fed'l ct, incumbent pres.

Eric R Glitzenstein, Washington, DC

  Freedom of Information
PL-120/41.17. Allende v. Shultz, Sec'y of State 605 FSupp 1220 (DC MA 1985); 845 F2d 1111 (1st Cir 1988)

2/83: Pl-widow of former Chilean Pres Salvador Allende applied for tourist visa for speaking tour. U.S. Consular officer in Mexico City denied her request under INA §212(a)(28)(C): membership in World Peace Council, Women's Int'l Democratic Federation. Group of U.S. citizens sued: denial of visa application violated 1st Amdt.

• 4/1/85: DJ denied motion to dismiss. Pl applied for, received visa. 4/13/88: 1st Cir aff'd, Bownes, CJ: Gov't may not exclude Pl unless it had reason to believe Pl sought entry to engage in harmful activities; exclusion on basis of intention to deliver speeches impermissible under Foreign Relations Authorization Act §901 ( PL-323/50.4).

Edward Copeland, 740 Broadway, NY, NY 10003-9518; Leonard B Boudin, Allan R Rosenberg

See PL-295/43.14; PL-323/50.4

  Right to Travel
PL-401/41.17. James Abourezk v. Reagan (State Dept); 592 FSupp 880 (DC DC 1984); 785 F2d 1043 (DC Cir 1986); 484 US 1 (1987)

1983: Pls-separate orgs invited Nicaraguan Interior Minister, Italian Communist, 2 Cuban Women's Studies experts to speak in U.S. State

- 41.18 -
Dept denied visas under 1952 INA (8 USC §1182). Pls sued challenging denials under McGovern Amdt (22 USC §2691).

• 7/27/84: Greene, DJ, granted Def's motion for summary judgment: U.S. not required to issue visas. 3/11/86: DC Cir vacated, remanded, Ginsburg, CJ: State Dept subject to Congressional limitations. 10/19/87: USSC aff'd in divided vote (3-3, 3 not sitting). 6/7/88: On remand, DJ granted Pls' motion for summary judgment, declared denials unauthorized, ordered Defs to issue visas.

Stephen R Shapiro, ACLU; Charles Sims, Leonard Boudin, Frederick A O Schwarz

  Visa Denial
PL-313/41.18. South African Airways v. Dole, Sec'y, Department of Transportation 817 F2d 119 (DC Cir 1987); cert den 484 US 896 (1987)

1986: Cong passed Comprehensive Anti-Apartheid Act; §306(a) requiring Pres to revoke right of S African Gov't-designated air carrier to provide service between U.S., S Africa. 11/13/86: Dept of Transportation issued final order revoking SAA's foreign air carrier permit. 11/14/86: SAA challenged order in DC Cir: 1-yr notification, not immediate revocation, required under U.S.-S Africa Air Transport Services Agreement (1947).

• 1/12/87: DC Cir heard oral argument. 4/24/87: DC Cir denied SAA petition to set aside order. 10/13/87: USSC denied cert.

Southern Africa Project filed amicus brief for Sens Kennedy, Levin, Weicker; Reps Gephardt, Gray, Leland, Wolpe; TransAfrica

  Apartheid
PL-608/41.18. Vietnamese Fishermen Assn of America v. Coast Guard (ND CA No 89-3522); (9th Cir 1989)

Late 1988: Coast Guard stepped up enforcement of 1789 Jones Act (bars noncitizens from owning/piloting fishing boats in U.S. coastal waters); cited, fined, threatened Vietnamese-born fishermen in CA w/ confiscation of boats. 9/26/89: Pl sought temporary injunction barring enforcement of Jones Act: violated 14th Amdt equal protection, 5th Amdt due process by denying Pls livelihood, discriminating against noncitizens/resident aliens.

• 10/16/89: Schwarzer, DJ: denied preliminary injunction. 11/7/89: 9th Cir issued temporary injunction. 7/20/90: 9th Cir panel issued order deferring decision; directed parties to negotiate settlement w/in 45 days. 11/16/90: Pres Bush signed into law Fed'l Maritime Commn Authorization Bill, allowing permanent residents, refugees right to own, operate large commercial fishing vessels.

Alan Sparer, 11 Menlo Pl, Berkeley, CA 94707; Dennis Hayashi, Asian Law Caucus; ACLU-N CA

  Resident Aliens
PL-112/41.18. Beacon Products v. Reagan (Treasury Dept); 633 FSupp 1191 (DC MA 1986); aff'd 814 F2d 1 (1st Cir 1987)

5/1/85: Pres Reagan issued Exec Order 12513 declaring nat'l emergency re actions of Nicaragua Gov't, gave 1 yr notice to Nicaragua

- 41.19 -
U.S. was terminating Treaty of Friendship, Commerce and Navigation. 5/7/85: pursuant to Exec Order, Dept of Treasury promulgated regs, 31 CFR Part 540, prohibiting substantially all trade between U.S., Nicaragua. Pls-representing those doing business, planning to donate goods, travel to Nicaragua, filed complaint for declaratory, injunctive relief: Exec Order, reg violated 50 USC §§1621, 1701, 191; 1st, 5th, 9th, 14th Amdts.

• 4/28/86: Garrity, DJ, granted Def's motion to dismiss: whether Nicaragua posed sufficient threat to trigger economic boycott nonjusticiable political question; notice of treaty termination also nonjusticiable; unconstitutional termination provision of Nat'l Emergencies Act is severable: Pres had power to declare emergency. 3/11/87: 1st Cir: case moot; Cong amended unconstitutional stat.

Michael Ratner, Margaret Ratner, Peter Weiss, Robert Boehm, Linda Backiel, Franklin Siegel, David Cole, CCR; Jules Lobel, Jonathan Shapiro, Max Stern

  Nicaragua
PL-247/41.19. Heidy v. U.S. Customs Service 681 FSupp 1445 (CD CA 1988)

U.S. Customs seized materials from U.S. citizens returning from Nicaragua, turned materials over to FBI. 4/86: 12 individuals, 5 orgs filed class action challenging abuses of Customs, FBI. 7-8/86: Customs issued policy directives permitting detention of materials only if "intended and likely to produce imminent lawless action"; Customs must submit materials to U.S. Atty to seek Ct ruling to that effect wherever probable cause exists; Customs may hold materials only for purpose of deciding whether to submit to U.S. Atty, must make decision w/in 14 days, make no copies or other use of materials unless probable cause determination made by Customs supervisor.

• 3/3/88: Letts, DJ: reinforced Customs directives; issued permanent injunction against Customs regarding review, copying, detention of travelers' written materials at border; ordered Customs to expunge all records of seizures; enjoined Customs from transferring materials for review to any agency, including FBI, that does not agree to be bound by Customs policy restrictions. 6/89: Gov't withdrew appeal. Pl filed application for atty fees.

David Cole, Michael Ratner, Anne Simon, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Barry Litt, 3550 Wilshire Blvd #1200, Los Angeles, CA 90010

  Nicaragua
PL-350/41.19. Veterans Peace Convoy v. Shultz, Customs Service 722 FSupp 1425 (SD TX 1988)

Spring/88: U.S. Customs Service, Treasury Dept approved Vets Peace Convoy of food, medicine, clothing for Nicaragua, required $100,000 bonds on vehicles, must return in 30 days. 6/15/88: Customs halted trucks in Laredo, TX, demanded drivers show license for exporting vehicles to Nicaragua, sign bond not to leave trucks in Nicaragua in violation of Pres Reagan's 1985 economic boycott reg. 7/9/88: 8 refused; arrested: blocking public thoroughfare, resisting arrest.

- 41.20 -
Customs Service seized vehicles. Pls sued for release of vehicles, injunction against seizing vehicles on humanitarian missions. Vehicles released, crossed border. 9/7/88: Pls abandoned request for injunction, sought summary judgment: Int'l Emergency Economic Powers Act (50 USC §1701) permitted export of vehicles to Nicaragua. 7/30/88: 44 members in 20 vehicles delivered 3 tons of food, medicine, clothing to Nicaragua gov't.

• 9/29/88: Kazen, DJ: Pres has no authority to regulate, prohibit donations for humanitarian purposes. 2/89: Gov't withdrew appeal.

James M Simons, Israel M Reyna, Javier Riojas; William H Beardall, Margaret Burkhart, Susan Finkelstein, TX Rural Legal Aid; Margaret Ratner, David Cole, CCR; Jules Lobel, Steve Somerstein, Stephen A Dixon, Ricardo De Anda

See PL-112/41.18

  Nicaragua
PL-227b/41.20. U.S. v. Robin Harper (IRS); 397 FSupp 983 (ED PA 1975)

6/13/74: IRS served Def summons to testify before Tax Officer on tax liability from 1962-67. 6/26/75: Def appeared, refused to produce records, sign financial statement. IRS moved to enforce summons in DC under 26 USC §7604(a). Def argued 1st Amdt freedom of religion, 5th Amdt freedom from self-incrimination: subpoenaed information could be used in criminal prosecution for failure to pay taxes after 1967; sought to discharge income tax obligation by paying "equivalent tax" to organizations besides Gov't.

• 3/31/75: Newcomer, DJ, denied IRS summons: Def's fear of prosecution, use of subpoenaed evidence reasonable; denied Def's motion for "equivalent tax." IRS did not appeal.

See PL-227/41.20, PL-227a/43.14

  War Tax Refusal
PL-227/41.20. U.S. v. Robin Harper (IRS); 569 FSupp 602 (ED PA 1983)

1958: Def-Quaker began refusing to pay taxes. 12/29/76: U.S. filed complaint to collect Tax Ct's assessment on unpaid taxes from 1958-61, 1965-72 under Internal Revenue C §§6502(a), 7401. 8/8/77: U.S. filed motion for summary judgment.

• 12/8/77: Green, DJ: granted U.S. motion for summary judgment for $11,040. 7/20/81: U.S. served Def subpoena. 11/19/81: Magis denied Def's motion to dismiss subpoena. Def's deposition rescheduled for 5/11/82. At deposition, Def refused to produce documents, answer questions: 1st Amdt freedom of religion, 5th Amdt freedom from self-incrimination. Scuderi, Magis: no basis for Def's claims; instructed Def to answer; Def refused. Scuderi, Magis, directed Def to appear for contempt. Def filed brief on 1st Amdt freedom of religion, 5th Amdt freedom from self-incrimination, Quaker beliefs, U.S.-Quaker relationship. 6/82: At contempt h'g, Green, DJ: heard expert testimony on 300-yr history of Quaker Peace Testimony from Dr Edwin Bronner, History Prof. 8/5/82: U.S. withdrew subpoena. 8/10/83: Green, DJ: denied Def's motion for atty fees under Equal Access to Justice Act:

- 41.21 -
Def failed to reveal assets, could not prove he qualified under Act as person of under $1 million net worth.

Peter Goldberger, Jay Richard Rosner

See PL-227a/43.14, PL-227b/41.20

  War Tax Refusal
PL-396/41.21. Nehmer v. Veterans Administration 712 FSupp 1404, 118 FRD 113 (ND CA 1989)

2/2/87: Vietnam vets-Agent Orange exposure victims filed class action against Vets Admr (VA) for error in processing Agent Orange claims: violating Dioxin & Radiation Exposure Compensation Standards Act (38 USC §354(a), 5th Amdt, APA (5 USC §§1-15) causing VA to limit compensation claims illegally.

• 12/22/87: Henderson, DJ: certified class (all current/former Service members, their survivors) to litigate claim. 5/3/89: Henderson, DJ, issued summary judgment: VA erred in interpreting Dioxin Act, invalidated 38 CFR 3.311a(d) of Act, remanded case to VA. VA revised Regs.

Linda Peterson, 2049 Century Park E #3500, Los Angeles, Ca 90069

See PL-75/30.2

  Agent Orange
- 42.1 -
c. CASES WITH SUPREME COURT OPINIONS

PL-178/42.1. Lyng, Sec'y of Agriculture v. Northwest Indian Cemetery Protection Assn 565 FSupp 586 (ND CA 1983); 795 F2d 688 (9th Cir 1986); 108 SCt 1319 (1988)

10/76: U.S. Forest Service (USFS) planned logging access road through sacred burial grounds. 1979: EIS found road would irreparably harm Indian religious practices. 1982: USFS proceeded w/ plan; Pl sued to stop road, prevent logging.

• 5/24/83: Weigel, DJ, issued injunction: road construction violated 1st Amdt. 9/28/84: Cong passed CA Wilderness Act of 1984 (Pub Law 98-425) forbidding logging in region. 7/22/86: 9th Cir, Canby, CJ: aff'd in relevant part. 4/19/88: USSC rev'd (5-3), Rehnquist, ChJ: road did not violate free exercise: substantial gov't interest not required for incidental effects of gov't action that substantially burden particular religious practices. Brennan, J (Marshall, Blackmun, JJ) diss: free exercise clause bars any gov't action that frustrates or inhibits religious practice, not only that which coerces conduct inconsistent w/ religious belief, penalizes, prohibits religious activity.

See PL-670/47.10

  Native American Rights
PL-81/42.1. Temistocles Ramírez de Arellano v. Weinberger (DoD); 568 FSupp 1236 (DC DC 1983); 724 F2d 143 (DC Cir 1983); 745 F2d 1500 (1984); 105 SCt 2353 (1985)

U.S. citizen/Honduras resident sued: Honduran Gov't improperly appropriated part of his ranch for Pentagon military training center, which trained over 11,000 Central American troops since 6/83.

• 8/24/83: Richey, DJ, dism'd: nonjusticiable political question. 12/22/83: DC Cir, Scalia, CJ (Wilkey, CJ, diss): Pl could present claim in Claims Ct; injunctive relief inappropriate: intrusion on foreign policy, conduct of Honduran officials under Honduran law, Alien Tort Stat not applicable. 2/23/84: Reh'g en banc granted. 10/5/84: DC Cir rev'd (Scalia, Bork, Tamm, Starr, diss), Wilkey, CJ: justiciable, Pls had standing; injunctive, declaratory, judicial relief not barred. 5/20/85: USSC rev'd, remanded (9-0) for reconsideration in light of 1985 Foreign Assistance Act, 98 Stat 1884, providing for cutoff of further operations on property unless Pentagon worked out plan w/ Honduran Gov't, other events occurring since 10/5/84. 6/21/85: Unable to form agreement, Pentagon closed center, to be replaced by new facilities in Honduras, El Salvador.

  Contra Aid
PL-215/42.1. Perpich v. U.S. Dept of Defense 666 FSupp 1319 (DC MN 1987); 880 F2d 11 (8th Cir 1989); 110 SCt 2418 (1990)

1986: 5,800 Nat'l Guardsmen from 23 states participated in military maneuvers in Honduras. 7 Govs either refused to allow Nat'l Guard units to participate or attached restrictive conditions to participation.

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Rep Montgomery (R-MS) added amdt to 1987 defense budget removing govs' power to refuse fed'l requests to send Guard units on training exercises. 11/86: Pres Reagan signed into law. 1/28/87: MN sued: law violates constitutional right of states to control militia; AR, CO, HI, IA, KS, ME, MA, OH, RI, VT joined as Pls. Pl filed motion for summary judgment; Def filed motion to dismiss.

• 8/4/87: Alsop, DJ: granted Defs summary judgment. 8/14/89: 8th Cir, McGill, CJ, aff'd. 6/11/90: USSC aff'd (9-0), Stevens, J: plain language of U.S. Const Art I allows Cong to order Nat'l Guard members to active duty for foreign training w/out consent of state gov't, declaration of nat'l emergency. 11/14/87: Cong passed Defense Appropriations Bill, including Montgomery Amdt removing govs' power to refuse to send Guard to Central America, eliminating basis for suit.

Jack Punheim, Peter Ackerberg, MN Atty Gen'l's Office, 102 State Capitol, St Paul, MN 55155

See PL-170/48.4

  National Guard
PL-531/42.2. EEOC, Ali Boureslan v. Arabian American Oil Co 653 FSupp 629 (SD TX 1987); 857 F2d 1014 (5th Cir 1990); reh'g en banc 892 F2d 1271 (1990); 111 SCt 1227 (1991)

Def-employer discharged Pl-Boureslan, naturalized U.S. citizen, born in Lebanon, working in Saudi Arabia. Pl filed charge w/ Pl-EEOC, sued in DC: discrimination on basis of race, religion, nat'l origin under Title VII, 1964 Civil Rights Act §§701(g,h), 702-703, 704; 42 USC §§2000e(g,h), 2000e-1 to 2000e-2, 2000e-3: broad jurisdictional language of Title VII provided clear intent of Cong to legislate extraterritorially.

• 1/27/87: DeAnda, DJ, dism'd: ct lacked subject matter jurisdiction, Title VII protections do not extend to U.S. citizens employed abroad by U.S. employers. 2/2/90: 5th Cir, Davis, CJ, aff'd. King, CJ, diss. 3/26/91: USSC aff'd (6-3), Rehnquist, ChJ: Pl's evidence, while not totally lacking in probative value, falls short of demonstrating clearly expressed affirmative Congressional intent required to overcome well-established presumption against statutory extraterritoriality. Marshall, J (Blackmun, Stevens, JJ) diss: Cong intended extraterritorial application of Title VII.

James Field Tyson, Neal H Pastel, Houston, TX; Vincent J Black-wood, Karen MacRae Smith, EEOC, Washington, DC

  Racial Discrimination
PL-881/42.2. Gilmer v. Interstate/Johnson Lane Corp (EEOC); (WD NC 1988); rev'd 895 F2d 195 (4th Cir 1990); aff'd 111 SCt 1647 (1991)

5/81: Def hired Pl as securities rep w/ stock exchanges; on registration application, Pl agreed to arbitrate disputes under NYSE rules. 1987: Def terminated Pl's employment at age 62. Pl filed complaint w/ EEOC, sued: termination violated 1967 Age Discrimination in Employment Act (ADEA) §2, 29 USC §621. Def filed motion to compel arbitration based on NYSE Rule 347, Fed'l Arbitration Act (FAA), 9 USC §1.

- 42.3 -

• 1988: McMillan, DJ: denied motion: Cong intended to protect claimants from waiver of judicial forum. 1990: 4th Cir, Wilkinson, CJ, rev'd. 5/13/91: USSC aff'd (7-2), White, J: age discrimination claims can be subjected to compulsory arbitration, enforceable pursuant to FAA; Pl's challenges to adequacy of arbitration procedures insufficient to preclude arbitration; unequal bargaining power between employers, employees not sufficient reason to hold arbitration agreements never enforceable. Stevens, J (Marshall, J) diss: arbitration clauses in employment agreements specifically exempt from coverage of FAA; Def cannot compel Pl to submit ADEA claim to binding arbitration.

John T Allred, Charlotte, NC

  Age Discrimination
PL-605/42.3. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics 276 FSupp 12 (ED NY 1967); 409 F2d 718 (2d Cir 1969); 403 US 388 (1971)

11/26/65: Defs entered Pl's apartment, arrested Pl for alleged narcotics violations, manacled Pl in front of wife, children, threatened to arrest family, searched apartment. 7/7/67: Pl sued agents: arrest/search effected w/out warrant, unreasonable force used, no probable cause, sought $15,000 from each agent.

• 1967: Bruchhausen, DJ, dism'd complaint: failed to state cause of action, Defs immune from suit by virtue of official position. 1969: 2d Cir aff'd, Lumbard, CJ: failure to state cause of action, immunity not discussed. 1971: USSC rev'd (6-3), Brennan, J: Pl's complaint stated fed'l cause of action: 4th Amdt rights violated by fed'l officials acting w/in scope of employment; on proof of injuries resulting from fed'l agents' violation of rights, Pl has claim for damages against officials in personal capacities.

Stephen A Grant

  Government Misconduct
PL-792/42.3. Irving Rust v. Sullivan, Sec'y, Health & Human Services 690 FSupp 1261 (SD NY 1988); 889 F2d 401 (2d Cir 1989); 111 SCt 1759 (1991)

1988: Health & Human Services Sec'y issued new regs under Public Health Service Act §§1002, 1008; 42 USC §§300a, 300a-6 prohibiting Title X projects from engaging in counseling, referrals, activities advocating abortion as method of family planning; requiring use of separate facilities, personnel, accounting records for abortion services. Pls-recipients of family planning funds, doctors who supervise Title X funds brought 2 suits challenging facial validity of regs; sought declaratory, injunctive relief to prevent implementation.

• 1988: DC upheld regs, granted Def summary judgment. 1989: 2d Cir aff'd. 5/23/91: USSC aff'd (5-4), Rehnquist, ChJ: 1) regs based on permissible construction of statute prohibiting use of Title X funds in programs in which abortion is method of family planning; 2) regs do not violate 1st Amdt free speech rights of Title X fund recipients/staffs/patients by impermissibly imposing viewpoint discriminatory conditions on gov't subsidies; 3) regs do not violate

- 42.4 -
woman's 5th Amdt right to choose whether to terminate pregnancy, do not infringe on doctor-patient relationship. Blackmun, J (Marshall, Stevens, O'Connor, JJ) diss: Secy's reg "upholds direct regulation of dialogue between a pregnant woman and her physician" when that reg has both purpose, effect of "manipulating her decision" re continuing pregnancy; this exceeds statutory authority; violates 1st, 5th Amdts.

Laurence H Tribe, Harvard Law School, Cambridge, MA

  Abortion
PL-419/42.4. Massachusetts v. Sullivan, Sec'y, Health & Human Services 679 FSupp 137 (DC MA 1988); 873 F2d 1528 (1st Cir 1989); 899 F2d 53 (1990); consolidation w/ den 110 SCt 3268; vacated, remanded 111 SCt 2252 (1991)

1988: U.S. Health & Human Services (HHS) agency dispensed $135 million annually in family planning funds to 4,000 clinics nationally. 1988: HHS issued new regs (Public Health Services Act, Title X) prohibiting counseling, referrals for abortion services. Pl sued.

• 1988: Skinner, DJ: enjoined enforcement of regs. 5/8/89: 1st Cir aff'd (2-1), Bownes, CJ: Regs violate 1st Amdt rights to reproductive choice, free speech. 3/19/90: 1st Cir, en banc, aff'd (4-1). 5/23/91: USSC (5-4), Rehnquist, ChJ, issued 111 SCt 1759: HHS Regs did not violate rights to free speech, reproductive choice. 6/3/91: USSC vacated, remanded for consideration in light of

James Shannon, MA Atty Gen'l; Wendy Warring, Boston, MA; David Cole, CCR, 666 Broadway, 7th Fl, NY, NY 10012

  Abortion
PL-869/42.4. Henry Spallone v. U.S. (HUD); (SD NY 1988); 856 F2d 444 (2d Cir 1989); rev'd 110 SCt 625 (1990)

7/88: Yonkers, NY, City Council delayed action on consent decree/remedial order in (see PL-868/41.3), requiring City to implement Affordable Housing Ordinance to remedy past segregation.

• 7/26/88: Sand, DJ, issued contempt citation: daily fines for City, imprisonment of councilmembers. Councilmembers appealed: abuse of discretion. 1989: 2d Cir aff'd. 1/10/90: USSC rev'd (5-4), Rehnquist, ChJ: DC abused discretion: restrictions on legislative freedoms eviscerates "public good," interfering w/ democratic process. Brennan, J (Marshall, Blackmun, Stevens, JJ) diss.

See PL-868/41.3

  Contempt
PL-918/42.4. Lujan, Sec'y of Interior v. Defenders of Wildlife 658 FSupp 43 (DC MN 1987); 851 F2d 1035 (8th Cir 1988); 707 FSupp 1082 (1989); 911 F2d 117 (1990); 112 SCt 2130 (1992)

1978: Interior, Commerce Sec'ys issued Reg under 1973 Endangered Species Act (§§7(a)(2), 11(g); 16 USC §§1536(a)(2), 1540(g)) covering federally funded projects in U.S., overseas. 1983: Sec'ys limited Reg to U.S. Pl-environmental groups sued: new reg limited opportunity to observe endangered species abroad as result of projects

- 42.5 -
partially funded by Agency for Int'l Development (AID).

• Alsop, DJ, dism'd: Pl lacked standing. 8th Cir rev'd, remanded. DC held for Pl. 8th Cir aff'd. 6/12/92: USSC rev'd (7-2), Scalia, J: 1) Pl did not have standing: no sufficiently imminent injury; Pl must show conduct complained of caused actual injury; must prove likely injury will be redressed by favorable decision; 2) Pl's injury not redressable where AID provided less than 10% funding; nothing to indicate project would be suspended or do less harm to endangered species if funding eliminated. Blackmun, J (O'Connor, J) diss: 1) Pl satisfies standing where reasonable to assume Pl will return to project site, where AID is indirectly bound/subject to Act (50 CFR §402.14(a) (1991)); 2) remains question of fact whether AID's withdrawal from project would alter foreign gov't action to avoid affecting endangered species.

  Environment
PL-29/42.5. Meese v. Barry Keene (DoJ); 569 FSupp 1513 (ED CA 1983); 619 FSupp 1111 (1985); 107 SCt 1862 (1987)

1/13/83: Chief, Registration Unit, Internal Security Section, Crim Div, DoJ notified Nat'l Film Bd of Canada (registered foreign agent) that 3 Canadian films on nuclear winter, acid rain were "political propaganda" under Foreign Agents Registration Act (22 USC §611). 5/23/83: CA State Sen, planning to show films, sued: Act unconstitutional.

• 9/7/83: Ramirez, DJ: granted Pls' motion for preliminary injunction. 9/12/85: DJ granted permanent injunction against enforcing "political propaganda" clauses of Act. 10/29/85: DJ limited injunction to designation of 3 films. 4/28/87: USSC rev'd (5-3), Stevens, J: Pl had standing to challenge Act: reputation would be damaged by showing films so labeled, paternalistic to protect public from fact U.S. Gov't labeled films; term "political propaganda" is "broad, neutral" not pejorative. Blackmun, J (Brennan, Marshall, JJ): diss in part on 1st Amdt grounds, practical effect of labeling.

James Scanlon; John C Donhoff; Paul E Gaspari, Tobin & Tobin, One Montgomery St, 15th Fl, San Francisco, CA 94104; Scott R Keene, 770 L St, Sacramento, CA

  Censorship
PL-778/42.5. Dept of Justice v. Reporters Comm for Freedom of Press 816 F2d 730, 831 F2d 1124 (DC Cir 1987); 489 US 749 (1989)

2/3/78: Pls-CBS news correspondent, Reporters Comm for Freedom of Press made FOIA request (5 USC §552(b)(7)(C)) seeking rap sheet for Charles Medico; record of financial crimes as matter of public interest, record. Def contended no record of such crimes, refused to confirm/deny information on nonfinancial crimes.

• 1983: Penn, DJ, entered summary judgment for Def: rap sheet protected by Exemption 7(C) of FOIA (excludes from disclosure requirements information compiled for law enforcement purposes to extent production of materials could reasonably be expected to constitute unwarranted invasion of privacy), dism'd suit. 1987: DC Cir remanded. On reh'g, Silberman, CJ, rev'd, remanded: DC limited to making factual determination whether subject's legitimate

- 42.6 -
privacy interest in his rap sheet is outweighed by public interest in disclosure because original information appears on public record. 3/22/89: USSC rev'd (9-0), Stevens, J: disclosure of FBI rap sheet to third party could reasonably be expected to constitute unwarranted invasion of personal privacy w/in meaning of law enforcement exception of FOIA, therefore prohibited by 5 USC §552(b)(7)(C).

Kevin T Baine, Washington, DC

  Freedom of Information
PL-517/42.6. U.S. v. Fedorenko (INS); 455 FSupp 893 (SD FL 1978); 597 F2d 946 (5th Cir 1979); 449 US 490 (1981); habeas den 598 FSupp 1525, 1527 (ED PA 1984)

1942-43: Def-guard, Treblinka concentration camp. 1949: Def entered U.S. 1970: Def became U.S. citizen. 1977: INS filed denaturalization proceedings against Def on ground he violated 1952 INA §340(a) by fraudulently entering U.S., illegally obtaining citizenship by improperly omitting reference to Nazi service, alleged part in beatings, persecution of prisoners. Def argued: forced by Germans to work as guard.

• 7/25/78: At trial, Gov't offered little evidence. Roettger, DJ: dism'd charges. 6/28/79: 5th Cir, Wisdom, CJ, rev'd: revoked Def's citizenship. 1/21/81: USSC, Marshall, J, aff'd revocation (7-2). 3/11/81: DC revoked citizenship. 3/81: INS commenced deportation proceedings against Def. 2/23/83: ALJ ordered deportation to USSR. BIA dism'd Def's appeal. 12/10/84: INS arrested Def. 12/13/84: Weiner, DJ: denied habeas petition. 12/14/84: INS Dist Dir denied stay. 12/18/84: Weiner, DJ: denied 2d writ. 12/19/84: USSC, Brennan, Stevens, JJ: rejected appeals. 12/21/84: U.S. deported Def to USSR.

Alexander Ewing, Deputy Ch, Civ Div, U.S. Atty, Philadelphia, PA

See PL-517a/1.11

  War Crimes
PL-80/42.6. Marcie Lucie Jean v. Nelson, INS Commr 544 FSupp 973 (SD FL 1982); 711 F2d 1455 (11th Cir 1983); 727 F2d 957 (1984); 624 FSupp 836 (1985); 472 US 846 (1985); 646 FSupp 1300 (1986); 854 F2d 405, 863 F2d 759 (1988); 110 SCt 2316 (1990)

1981: Following influx in late 1970s-80s of Cubans/Haitians, Atty Gen'l ordered INS to detain w/out parole any immigrants who could not present prima facie case for admission, changing 30-yr policy of general parole for undocumented aliens. 6/16/81: Pls filed habeas petitions as representative class of undocumented/unadmitted aliens from Haiti; denial of parole by INS on basis of race/nat'l origin; denial of parole violates 5th Amdt due process; new rule violates APA.

• Spellman, DJ: exclusion policy not applied in discriminatory manner; Gov't violated APA by adopting new rule w/out notice: ordered release on parole of all incarcerated class members. Gov't entered notice of intention to engage in rule-making; DJ granted partial stay. 4/12/83: 11th Cir aff'd in part, rev'd, remanded in part, Kravitch, CJ: policy change w/in exec authority; notice required; Gov't discriminated against Pl class in enforcement of policy. 1984: 11th Cir, en banc, dism'd APA claim: undocumented immigrants have no equal protection rights re: INS procedures, remanded to determine if INS followed

- 42.7 -
own non-discriminatory regs. 6/25/85: USSC aff'd: no need for Ct of App to address constitutional issue; current statutes/regs provide Pets w/ non-discriminatory parole consideration; on remand, DC must consider: 1) whether INS officials exercised discretion under stat to make individualized parole determinations; 2) whether they exercised discretion w/out regard to race, nat'l origin. Marshall, Brennan, JJ, diss: Pls have 5th Amdt right to non-discriminatory parole consideration. 1986: DJ awarded Pls atty fees under Equal Access to Justice Act (28 USC §2412). 1988: 11th Cir aff'd. 1990: USSC aff'd (9-0).

Ira J Kurzban, Bruce J Winick, Robert E Juleam, Terrence A Corrigan

  Immigrants' Rights
PL-297/42.7. Cardoza-Fonseca v. INS 767 F2d 1448 (9th Cir 1985); 107 SCt 1207, 26 ILM 396 (1987)

6/25/79: Pet-Nicaraguan entered U.S. as visitor. 12/14/81: At deportation h'g, Pet applied for asylum: (8 USC §1158(a), PL-356/50.2); prohibition against deportation: INA (8 USC §1253(h)).

• ALJ: applied "clear probability of persecution" standard; denied Pet relief from deportation. BIA aff'd: Pet failed to show she would suffer persecution. 8/12/85: 9th Cir rev'd, Reinhardt, CJ: BIA should have applied "well-founded fear" standard, not "clear probability." 3/9/87: USSC aff'd, Stevens, J: aliens need not prove "more likely than not" they will be persecuted in home country to meet "well-founded fear" standard under 1980 Refugee Act, 19 ILM 703; U.S. obligated to follow UN Protocol Re Status of Refugees, 6 ILM 78 (1967).

CARECEN, 1434 W Olympic Blvd, Los Angeles, CA 90015

  Asylum
PL-399/42.7. Juozas Kungys v. U.S. (INS); 571 FSupp 1104 (DC NJ 1983); 793 F2d 516 (3d Cir 1986); 485 US 759 (1988)

6-7/41: Pet allegedly participated w/ armed forces of Nazi Germany in executing 2,000 Lithuanian civilians, mostly Jews. 1948: Pet arrived in U.S. from Lithuania. 1954: Pet granted citizenship. 1983: Pet accused of war crimes. U.S. sued to revoke citizenship: Pet lied on application.

• 1983: Debevoise, DJ: held for Pet. 6/20/86: 3d Cir rev'd, Mansmann, CJ: citizenship revocable since lies material to application. 5/2/88: USSC aff'd, Scalia, J: no constitutional requirement of materiality of lies, remanded for denaturalization proceeding.

Donald J Williamson, Westwood, NJ

  War Crimes
PL-35/42.7. National Center for Immigrants Rights v. INS 743 F2d 1365 (9th Cir 1984); 644 FSupp 5 (CD CA 1985); 791 F2d 1351 (1986); 481 US 1009 (1987); 913 F2d 1350 (1990); 112 SCt 551 (1991)

12/5/83: Pls sued challenging implementation of INS reg (8 CFR §103.6(a)(2)(ii) prohibiting immigrants/refugees from working pending outcome of deportation proceedings: reg violated 5th Amdt equal protection, due process, inconsistent w/ IRCA (8 USC §1252).

• 12/16/83: Kenyon, DJ: granted preliminary injunction halting further implementation of reg. 9/20/84: 9th Cir: upheld preliminary injunction,

- 42.8 -
remanded to narrow scope of injunction. INS moved for summary judgment in DC. 3/5/85: DJ granted summary judgment for Pls: regs at issue invalid: promulgated w/out statutory authority. 1986: 9th Cir aff'd. 1987: USSC vacated, remanded for reconsideration in light of "employee sanctions" provisions of 1986 IRCA. 1988: DJ again ruled for Pls. 9/90: 9th Cir aff'd (2-1), Ferguson, CJ: reg not authorized under IRCA; Cong created employer sanctions in IRCA, rejected employee sanctions. 12/16/91: USSC rev'd, remanded (9-0), Stevens, J: INS consistent interpretation of reg as applying only to unauthorized employment is valid, recognizes rights to seek discretionary relief from INS, prompt admr and judicial review of bond conditions.

Peter A Schey, Antonio Rodríguez, Xavier Vega, Erin Moore, all Los Angeles, CA; Susan Gzesh, Chicago, IL; Maureen O'Sullivan, Boston, MA; Patrice Perillie, San Diego, CA

  Immigrants' Rights
PL-872/42.8. Ardestani v. INS 904 F2d 1505 (11th Cir 1990); 112 SCt 515 (1991)

Pet prevailed over INS at deportation proceeding; awarded atty fees under Equal Access to Justice Act (EAJA, 5 USC §504(a)(1)).

• BIA vacated award: deportation proceedings not w/in scope of EAJA. 1990: 11th Cir aff'd. 12/10/91: USSC aff'd (6-2), O'Connor, J: deportation proceedings not adversarial adjudications under EAJA, not governed by APA (5 USC §504). Blackmun, J (Stevens, J) diss.

  Attorney Fees
PL-875/42.8. Haitian Refugee Center, Inc v. McNary, INS Commr 694 FSupp 864 (SD FL 1988); 872 F2d 1555 (11th Cir 1989); 111 SCt 888 (1991)

1988: After h'gs w/out discovery, INS denied aliens Special Agricultural Worker (SAW) status under IRCA (100 Stat 3359). Pl filed class action: INS h'gs violated due process.

• 8/2/88: Atkins, DJ: found jurisdiction, certified Pls as class, granted Pl's motion for preliminary injunction to prevent INS from conducting improper h'gs. 5/23/89: 11th Cir aff'd. 12/20/91: USSC aff'd (6-1-2), Stevens, J: Fed'l cts could decide if INS procedures determining SAW status satisfied due process. Rehnquist, ChJ (Scalia, J) diss. 6/92: Parties settled; INS agreed to new h'gs for 20,000 aliens denied SAW status.

Peter Schey, Center for Human Rights & Constitutional Law, 256 S Occidental Blvd, Los Angeles, CA 90057; Ira J Kurzban, Miami, FL

  Agricultural Workers' Rights
PL-503/42.8. INS v. Doherty; In re Joseph Doherty 599 FSupp 270 (SD NY 1984); 615 FSupp 755 (1985); 786 F2d 491, 808 F2d 938 (2d Cir 1986); 908 F2d 1108 (1990); 112 SCt 719 (1992)

5/2/80: Def-Irish citizen, Irish Republican Army member ambushed by British soldiers in Belfast; Def shot, killed British commando; arrested. Bench tribunal convicted Def; sentence: life, 30 yr minimum. Def escaped, entered U.S. 6/18/83: INS arrested Def: entering U.S. w/out immigration papers. UK sought extradition. Def applied for asylum under INA §243(h), 8 USC §1253(h). 1983-90: U.S. held Def w/out

- 42.9 -
charge at fed'l Metropolitan Correctional Center in Manhattan (pretrial detention center).

• 12/84: Sprizzo, DJ, granted asylum, denied extradition request: Def's case under political offense exception in U.S./UK extradition treaty of 6/8/72 (28 UST 227, TIAS 8468, 1049 UNTS 167). 6/25/85: Haight, DJ: denied U.S. appeal; declaratory relief not available. 3/13/86: 2d Cir, Friendly, CJ, aff'd. 6/9/86: Def withdrew application for asylum to withhold deportation; designated Ireland as country to which he be deported. Cohen, ALJ: ordered deportation to Ireland over INS challenge to designation. 3/11/87: BIA aff'd. 12/23/86: Supplementary treaty to 1972 extradition treaty entered into force: no political offense exception. 2d Cir: Atty Gen'l has authority under §243(a) to deny deportation to designated country if prejudicial to U.S. 12/3/87: Def moved to reopen deportation proceedings; 1987 Irish Extradition Act constituted new evidence for withholding deportation, asylum claims. BIA: Def could apply for permanent residence as political refugee. 6/9/88: Atty Gen'l Meese: rev'd BIA, rejected Def's Ireland designation, ordered Def deported to UK, remanded to BIA Def's motion to reopen. 11/4/88: BIA granted Def's motion to reopen. 12/88: Atty Gen'l Thornburgh rev'd BIA on independent grounds: Def had not presented new evidence warranting reopening; Def had waived his claims by withdrawing them in 1986. 9/5/89: BIA denied Def's bail application. 92 U.S. Reps, 8 Sens sponsored Concurrent Res 62 asking for bail, political asylum h'g. 11/15/89: AFL-CIO Nat'l Convention unanimously supported Res 62. 6/29/90: 2d Cir, Pratt, CJ: aff'd Atty Gen'l's rejection of Def's designation of Ireland; rev'd order denying motion to reopen; once alien establishes prima facie case for withholding deportation, brings new evidence Atty Gen'l is w/out discretion to deny motion to reopen. 1/15/92: USSC rev'd (part 1: 5-3; part 2: 4-3-1; part 3: 2-3-3), Rehnquist, ChJ: Atty Gen'l did not abuse discretion in denying motion to reopen; Atty Gen'l has broad discretion to grant or deny motion to reopen deportation proceedings; motions for opening deportation proceedings disfavored where every delay works to alien's advantage who wishes merely to remain in U.S. 2/19/92: U.S. deported Def to N Ireland. Sir Patrick Mayhew, N Ireland Sec'y of State to decide whether to grant Def credit for 8 yrs, 8 mths served in U.S.

Mary Pike, Somerstein & Pike, 401 Broadway, 27th Fl, 10013; Nat'l Comm for Joseph Doherty, PO Box 20474, 10129; all NY, NY

  Asylum
PL-917/42.9. INS v. Jairo Jonathan Elias-Zacarias 921 F2d 844 (9th Cir 1990); rev'd 112 SCt 812 (1992)

1/87: Pet-Guatemalan native fled after guerrillas insisted he join their army. 7/87: Pet apprehended for entering U.S. w/out inspection; applied for asylum; did not submit evidence guerrillas would punish him for his political opinion. INS denied request; BIA aff'd.

• 1990: 9th Cir rev'd: refusal to be conscripted into military force indicates political opinion at odds w/ that institution. 1/22/92: USSC rev'd (6-3), Scalia, J: applied "substantial evidence" standard; guerrillas' attempt to coerce person into performing military service does not necessarily constitute "persecution on account of ... political

- 42.10 -
opinion" under INA §101(a)(42), 8 USC §1101(a)(42). Stevens, J (Blackmun, O'Connor, JJ) diss: political opinion can be expressed negatively as well as affirmatively, as in refusal to support cause.

James Robinson, Washington, DC

  Asylum
PL-876/42.10. Haitian Centers Council v. Sale, INS Commr (ED NY No 92 CV 1258, 1992); rev'd 969 F2d 1350 (2d Cir 1992); rev'd 113 SCt 2549, 32 ILM 1039, 1215 (1993)

9/30/91: Coup ousted Haitian Pres Aristide. 2/4/92: U.S. Coast Guard, per Exec Order, intercepted, repatriated Pls-Haitian refugees fleeing to U.S. 3/18/92: Pls filed class action: lives threatened in Haiti due to political views: UN Protocol re Status of Refugees Art 33 (19 UST 6223, TIAS 6577, 6 ILM 78 (1967)), (94 Stat 102, 19 ILM 703, PL-356/50.2), 1952 INA §243(h)(1).

• 5/92: Johnson, DJ: denied Pls' motion for TRO prohibiting gov't from returning interdicted Pls. 7/29/92: 2d Cir rev'd, Pratt, CJ: gov't action implementing Exec Order violates INA; Art 33 covers all refugees. 8/5/92: USSC (7-2) stayed injunction. 6/21/93: USSC rev'd (8-1), Stevens, J: UN Protocol, Refugee Act, INA do not limit Exec authority outside U.S. coastal waters. Blackmun, J, diss: Art 33.1 "does not include any geographical limitation. It limits only where a refugee may be sent `to', not where he may be sent from"; Protocol written to prevent refoulement, which is what U.S. is doing to Pls. 1980 Refugee Act written to conform U.S. law to UN Protocol: Exec order illegal; Pls demand only that U.S., "land of refugees and guardian of freedom, cease forcibly driving them back to detention, abuse, and death."

Michael Ratner, Jules Lobel, Suzanne Shende, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Harold Hongju Koh, Lowenstein Int'l Human Rights Clinic, Yale Law School, New Haven, CT; Joseph Tringali, Simpson, Thacher & Bartlett, 425 Lexington Ave, NY, NY 10017; Robert Rubin, San Francisco Lawyers Comm for Urban Affairs; Lucas Guttentag, Judy Rabinovitz, ACLU Immigration Rights Project

See PL-297/42.7; PL-503/42.8

  Asylum
PL-397/42.10. Reno v. Jenny Flores (INS); 681 FSupp 665 (CD CA 1988); rev'd 934 F2d 991 (9th Cir 1990); reh'g en banc aff'd DC, 942 F2d 1352 (1991); rev'd 113 SCt 1439 (1993)

7/11/85: Pls filed class action for all aliens under 18 detained by INS: W Regional detention rule, juveniles' detention conditions illegal. 1987: DC approved consent decree. INS issued Reg 8 CFR §242.24 (release of detained minors only to parents, close relatives, legal guardians, except in unusual, compelling circumstances); unreleased juveniles' placement in juvenile care facilities. 1988: Pls pressed suit: right to be routinely released into custody of other responsible adults under 5th, 14th Amdts, INA §242(a), 8 USC §1252(a), int'l law.

• 3/7/88: Kelleher, DJ: granted summary judgment to Pl-aliens;

- 42.11 -
invalidated regs on unspecified due process grounds; responsible adults to be added to list of persons to whom juveniles could be released; required automatic h'g before ALJ. 6/20/90: 9th Cir rev'd. 8/9/91: on reh'g en banc, 9th Cir aff'd DC. Pls, in petition for cert: In 1990, INS arrested 8,500 alien juveniles, 70% unaccompanied, 15% girls, 15% younger than 15 yrs old; detained them pending deportation h'gs. 3/23/93: USSC rev'd (7-2), Scalia, J: 1) reg §242.24, permitting detained juvenile aliens to be released only to parents, close relatives, legal guardians, except in unusual circumstances, does not facially violate substantive due process; 2) INS procedures do not deny juvenile aliens procedural due process; 3) reg is w/in scope of Atty Genl's statutory discretion under 8 USC §1252(a)(1) to continue custody over arrested aliens. Stevens, J (Blackmun, J) diss: indefinite detention of juveniles posing no risk of flight or threat to themselves or others, despite existence of responsible adults able to assume custody, w/out individualized consideration of juveniles' best interests, is contrary to fed'l policy, due process, not authorized by §242(a).

Carlos Holguín, Nat'l Center for Immigrants' Rights, Los Angeles, CA; Nat'l Center for Youth Law; Paul Hoffman, ACLU-S CA; Ellen Lutz

  Juvenile Immigrants
PL-629/42.11. Catholic Social Services v. Reno (INS); 664 FSupp 1378 (ED CA 1987); 820 F2d 289 (9th Cir 1987); 685 FSupp 1149 (1988); aff'd 956 F2d 914 (1992); vacated, remanded 113 SCt 2485 (1993)

11/6/86: Pres Reagan signed IRCA: granted amnesty to aliens continuously residing in U.S. from 1/1/82-11/6/86. INS issued reg: applicants ineligible for amnesty if they travelled outside U.S. during application period w/out INS permission (INA §245a, 8 CFR §245a.1(g), 8 USC §1255a); apprehended, sought to exclude/deport such individuals. 11/12/86: Pl filed class action to enjoin INS from deporting aliens travelling w/out permission. 11/14/86: INS issued telegram notifying aliens of advance parole authorization requirement.

• 11/24/86: Karlton, DJ, issued TRO preventing INS from: 1) removing alien otherwise prima facie eligible for legalization; 2) accepting departure record from alien w/ claim to legalization; 3) deporting alien w/ claim to legalization until rules implementing Act published in Fed'l Register. 12/3/86: 9th Cir motions panel construed TRO as appealable preliminary injunction, stayed enforcement pending appeal. 4/3/87: 9th Cir, Anderson, CJ: rev'd TRO, remanded. 6/15/87: petition for reh'g en banc denied. 5/3/88: Karlton, DJ, granted Pl's motion for summary judgment: reg invalid: violates due process; frustrates Cong intent to implement legalization program in "liberal and generous fashion." 6/10/88: Karlton, DJ: granted 5 mth extension for amnesty applications. Def appealed extension, jurisdiction of DC; agreed to stay order permitting amnesty applications, temporary stays of deportation, work permits pending appeal. 9th Cir consolidated w/ (see PL-505/42.12). 2/13/92: 9th Cir aff'd; maintained stay order pending appeal. 300,000 late applications filed by 3/92.

- 42.12 -
6/18/93: USSC vacated, remanded (5-1-3), Souter, J: record insufficient to establish jurisdictional ripeness for review. Stevens, J (White, Blackmun, JJ) diss: Gov't "no longer defends either regulation"; DC extension proper remedy; "at the moment [Pls] conformed their behavior to the invalid regulations — those regulations concretely and directly affected [Pls], consigning them to the shadow world from which the Reform Act was designed to deliver them."

Peter A Schey, Nat'l Center for Immigrants' Rights, Los Angeles, CA; Ralph S Abascal, CA Rural Legal Assistance, San Francisco, CA

See PL-505/42.12; PL-297/42.7; PL-875/42.8

  Amnesty
PL-505/42.12. League of United Latin American Citizens v. INS (CD CA 1988); aff'd 956 F2d 914 (9th Cir 1992); vacated, remanded 113 SCt 2485 (1993)

11/6/86: Pres signed IRCA: granted amnesty to aliens continuously residing in U.S. from 1/1/82-11/6/86. INS issued reg: aliens who left U.S. during amnesty period, returned using visa ineligible; aliens who left U.S., returned w/out inspection eligible (8 USC §1255a(a)(2)(A) (1988), 8 CFR §245a.2(b)(8) (1991)). INS widely publicized policy, turned away tens of thousands of amnesty applicants. 7/87: Pl filed class action: reg violated IRCA, 5th Amdt equal protection. Before h'g, Def agreed policy improper; modified regs.

• 7/15/88: Keller, DJ: reg invalid. 8/12/88: Keller, DJ: granted 3 mth extension for amnesty applications. Def appealed extension, jurisdiction of DC; agreed to stay order permitting amnesty applications, temporary stays of deportation, work permits pending appeal. 9th Cir consolidated w/ See PL-629/42.11.

Peter A Schey, Nat'l Center for Immigrants' Rights, 256 S Occidental Blvd, Los Angeles, CA 90057; Ralph S Abascal, San Francisco, CA

See PL-629/42.11; PL-297/42.7; PL-875/42.8

  Amnesty
PL-883/42.12. Lechmere v. National Labor Relations Board (295 NLRB No 15, ALJ Slip Op 1988); (Bd Slip Op 1989); 914 F2d 313 (1st Cir 1990); rev'd 112 SCt 841 (1992)

1988: Pl-nonemployee union organizers placed handbills on windshields of cars parked in employer's parking lot. Def-employer denied Pl access to lot. Union filed unfair labor practice claim w/ NLRB: violation of NLRA §§7, 8(a)(1) (29 USC §§157, 158(a)(1)).

• 1989: ALJ: Def to allow Pls in parking lot. NLRB aff'd: in all access cases, NLRB balances degree of impairment of §7 right if access denied against degree of impairment of private property rights if access granted, taking into consideration availability of reasonably effective alternative means of exercising §7 right; while union had alternative means to communicate w/ employees, workplace contact preferable. 9/17/90: 1st Cir aff'd. 6/27/92: USSC rev'd (6-3), Thomas, J: Def did not commit unfair labor practice by barring nonemployee union organizers from property; Act confers

- 42.13 -
rights on employees, not on unions; §7 does not protect nonemployee organizers except where access to employees infeasible, then appropriate to balance §7, private property rights; Pl failed to establish unique obstacles frustrating access to employees. Stevens, J, White, J (Blackmun, J) diss: judicial role is narrow; NLRB's application of rule must be enforced if supported by substantial evidence on record; NLRB's conclusion that no reasonable alternatives supported by evidence in record; Ct should remand to NLRB, not substitute its own judgment for reasonable construction by NLRB.

Michael R Dreeben, Washington, DC

  Labor Unions
PL-345/42.13. Minnesota Public Interest Research Group v. Selective Service System 557 FSupp 923 (DC MN 1983); 468 US 841 (1984)

6 Pets-19-21 yr-old males intending to apply for college financial aid under 1965 Higher Education Act, Title VI, sued: Selective Service Act (50 USC §462(f)) requirement of financial aid applicants to verify draft registration is unconstitutional bill of attainder, self-incriminating.

• 3/10/83: Alsop, DJ: granted preliminary injunction. 7/5/84: USSC rev'd, Burger, ChJ: denial of financial aid not punishment, no self-incrimination: students not compelled to apply for aid. Marshall, J, diss: requirement self-incriminatory.

William Keppel, Dorsey & Whitney, 2200 1st Bank Pl E, Minneapolis, MN 55402

See PL-254/23.3

  Draft Registration
PL-797/42.13. Vance, Sec'y of State v. Laurence Terrazas 577 F2d 7 (7th Cir 1978); 100 SCt 540 (1980)

Pl acquired dual Mexican/U.S. citizenship at birth. 1970: Pl executed application, swore allegiance to Mexico, renouncing U.S. citizenship. 12/71: U.S. State Dept issued certificate of loss of nationality; Bd of App Review of State Dept aff'd. Pl sued to regain U.S. citizenship.

• DC denied relief: Pl voluntarily relinquished citizenship pursuant to INA (8 USC §1481, §349(a)(2)). 5/26/78: 7th Cir, Sprecher, CJ, rev'd. 1/15/80: USSC rev'd (5-2-2), White, J: U.S. gov't must prove intent to surrender U.S. citizenship; voluntary, expatriating act not enough. Marshall, J, conc, diss: Congressional power to "prescribe rules of evidence" is beginning of inquiry; ct must determine constitutional implications. Stevens, J, conc, diss: Cong has not established permissible standard of citizenship renunciation. Brennan, J (Stewart, J) diss: formal renunciation is sufficient to lose citizenship.

Kenneth K Ditkowsky, Chicago, IL

  Denaturalization
PL-51/42.13. Haig v. Agee (State Dept); 453 US 280 (1981)

1974: Def-former CIA employee called press conference to announce campaign to fight CIA wherever it operates. 12/79: Sec'y of State revoked Def's passport: activities in foreign countries caused serious

- 42.14 -
damage to U.S. nat'l security, foreign policy.

• 6/29/81: USSC (7-2): Sec'y of State, by authority of Pres, may revoke passport if holder's activities in foreign countries cause serious damage to U.S. nat'l security, foreign policy. Brennan, J (Marshall, J) diss: regs Sec'y of State relied on to revoke passport invalid as unlawful exercise of authority by Sec'y under Passport Act of 1926.

  Anti-CIA Protest
- 43.1 -
d. CASES LOST

PL-585/43.1. Getty v. Webster, CIA Dir 855 F2d 861 (9th Cir 1987); cert den 493 US 833 (1989)

10/84: Pl read article in NY Times (10/17/84) re Psychological Operations in Guerrilla Warfare, CIA manual aimed at Nicaraguan contras advocating assassination of Sandinista officials in Nicaragua. 5/22/85: Pl sued Def-CIA Dir Casey: Pl being compelled, through payment of taxes, to support murder of innocent people, instructions in manual violated 18 USC §§1116, 1117 prohibiting murder of foreign officials; alleged interest based on experience as medic in U.S., partial Hispanic descent. Schwartz, DJ: granted Def's motion to dismiss. Pl filed amended complaint alleging racial discrimination against Sandinistas, seeking declaratory, injunctive relief, adding as Defs U.S., CIA, DoJ.

• 8/4/86: Schwartz, DJ, dism'd w/ prejudice for lack of subject matter jurisdiction: no personal stake, no injury in fact, no standing; political question doctrine. 8/3/88: 9th Cir aff'd, Browning, Hug, CJs: no justiciable case, controversy. 10/2/89: USSC denied cert.

Greg Getty, PO Box 1637, Pittsburg, CA 94565

  Racial Discrimination
PL-244/43.1. Chaser Shipping Corp v. U.S. (CIA); 649 FSupp 736 (SD NY 1986); 819 F2d 1129 (2d Cir 1987); cert, reh'g den 108 SCt 695, 2921 (1988)

3/28/84: Norwegian ship struck mine placed by CIA in Corinto harbor, Nicaragua, suffered extensive hull damage. Pls sued to recover: U.S. violated duty to innocent 3d-party vessels by failing to comply w/ established practice of clearly warning such parties of mines placed in harbor; Suits in Admiralty Act (46 USC §742), Fed'l Tort Claims Act (28 USC §§1346(b), 2671-2680).

• 12/11/86: Tenney, DJ, accepted truth of Pls' allegations: nonjusticiable political questions; granted Gov't motion to dismiss. 1987: 2d Cir aff'd w/out opinion. 1988: USSC denied cert, denied reh'g.

Healy & Baillie; Hill, Betts & Nash

See Nicaragua, PL-43/5.2

  Nicaragua
PL-566/43.1. Charles Diggs v. Dent, Richardson (Commerce); 14 ILM 797 (DC DC 1975); 555 F2d 848 (DC Cir 1976)

1973: Def-Fouke Co, fur processor, applied to Def-Sec'y of Commerce for waiver to import seal skins from S Africa under 1972 Marine Mammal Protection Act (16 USC §1361). Commerce Sec'y reps visited seal grounds in S Africa, Namibia, to rule on application. 1975: Fouke Co filed new application. Pls-SW African Peoples Org (SWAPO), SWAPO members, Cong Diggs, others barred from Namibia. Pls sued for declaratory, injunctive relief: such contacts w/ S Africa, Namibia violated UNSC Res 276 (10 ILM 295 (1970)), 301 (10 ILM 1296 (1971)) prohibiting dealings w/ S Africa re Namibia; UN Charter; ICJ Advisory Opinion (ICJ 16, 58 (1971)) calling for UN members to refrain from dealings w/ S Africa that implied recognition of S African presence in Namibia. 10/4/71: U.S. accepted ICJ opinion (26 UN

- 43.2 -
GAOR Supp 1 at 1). Pls claimed (PL-561/33.1) opinion gave standing. Defs filed motion for dismissal: lack of jurisdiction.

• 1975: Flannery, DJ, dism'd: Pls have standing under Ct lacks jurisdiction: UN Res not self-executing treaties, do not confer enforceable rights on individuals; if Ct had jurisdiction, case would be nonjusticiable foreign policy matter. DC Cir, Levanthal, CJ, aff'd.

See PL-561/33.1

  South Africa
PL-752/43.2. Africa Fund v. Mosbacher, Sec'y of Commerce (SD NY Civ #92-0289)

1990: Pl complained to Dept of Commerce (DoC) re export of shotguns/parts by U.S. manufacturers to S Africa: violation of U.S. arms embargo, 22 USC §2751. 1991: Pl filed FOIA request for copies of export licenses, other documents. DoC refused to comply. Spring/92: DoJ criminal investigation into illegal arms exports.

• 5/93: Keenan, DJ, dism'd suit: Cong renewed provision of Export Admr Act exempting export docs from disclosure under FOIA.

Franklin Siegel, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Joan P Gibbs, Ralph Shapiro, Robert Boehm, Peter Weiss

  Freedom of Information
PL-79/43.2. Concerned About Trident v. Rumsfeld, Sec'y of Defense 400 FSupp 454 (DC DC); 555 F2d 817 (DC Cir 1977)

1972: DoD chose to locate complete logistical support/refit facility (dedicated site) for Trident sub at Bangor, WA. Pls sued: Navy failed to follow NEPA procedures in preparing EIS for Trident facility.

• Hart, DJ: found compliance; dism'd complaint. 7/13/77: DC Cir: Pls had standing; Navy bound by own Regs to follow NEPA; Navy decision-making process, EIS satisfied NEPA except in 2 areas; Navy must supplement final EIS to include: 1) analysis of environmental impact for reasonable period after 1981; 2) further discussion of alternative systems, environmental consequences that Navy considered before choosing dedicated site alternative. 7/81: Base completely operational.

David Sire, Ronald J Wilson

  Nuclear Homeporting
PL-13/43.2. Clifford Johnson v. Weinberger, Sec'y, Dept of Defense (ND CA 1984); (9th Cir 1985); 43 Guild Practitioner 38-42 (1986)

Pentagon officials refused to confirm/deny whether launch-on-warning plan exists, have discussed plan as part of Strategic Defense Initiative. Pro se Pl, w/ support of 700-member Computer Professionals for Social Responsibility, sued DoD Sec'y: nuclear weapons w/ launch-on-warning capability (LOWC) give war-making powers to computer, violate war powers clause of U.S. Const (Art I §8(2)), UN Charter, N Atlantic Treaty, Law of Nations, NEPA.

• 7/20/84: Williams, DJ: dism'd. 11/19/85: 9th Cir aff'd, Beezer, CJ: Pl did not allege LOWC, alleged no injury or constitutional/statutory violation from development of LOWC per se: no controversy exists.

Clifford Johnson, pro se; Claudia Brisson

See PL-13a/43.3

  Nuclear Weapons Protest
- 43.3 -
PL-13a/43.3. Clifford Johnson v. Weinberger, Sec'y, Dept of Defense 851 F2d 233 (9th Cir 1988)

6/17/86: Pl in PL-13/43.2 filed new complaint: Launch-on-Warning Plan exists, constitutes threat of harm/anticipatory deprivation w/out just compensation, violating Pl's 5th Amdt due process rights.

• 3/18/87: DJ dism'd: political question. 6/27/88: 9th Cir aff'd: Pl lacked standing; injury speculative, no different from other U.S. citizens.

William Brockett, Keker & Brockett, 710 Sansome St, San Francisco, CA 94111; Thomas H Robertson

See PL-13/43.2

  Launch on Warning
PL-27/43.3. Romer v. Carlucci; Western Solidarity v. Reagan (DoD); 819 F2d 1445 (8th Cir 1987); reh'g en banc 847 F2d 445 (1988)

4/13/83: Pres Reagan directed DoD, Air Force to base MX missiles in 100 existing Minuteman II silos in WY, NE. 9/24/83: Cong passed DoD Authorization Act of 1984, releasing funds for procurement of first 21 MX missiles. 8/31/84: Coalition of anti-nuclear, environmental, Native American groups filed complaint to prevent MX deployment, joined w/ 2d suit filed by CO Gov Romer alleging deployment would violate UN Charter, int'l law, 1st Amdt, American Indian Religious Freedom Act (42 USC §1996), Alien Tort Claims Act (28 USC §1350), environmental laws. U.S. Sens, led by Hatch (R-UT), represented by Washington Legal Foundation, filed amicus briefs supporting Def.

• 2/20/86: Urbom, DJ, granted Defs' motion to dismiss: nat'l defense projects exempt from ct review under NEPA. 5/21/87: 8th Cir panel rev'd, remanded for h'g on merits: 1) Pls' nonjusticiable claims so found because requested alteration of final congressional decisions, not because they raised political questions; 2) all counts of CO's complaint, several counts of Western Solidarity's complaint outside scope of deployment decisions made by Cong; 3) Cong could have exempted MX from requirements of NEPA, expressly chose not to; 4) MX status as major military project does not alone exempt its compliance w/ NEPA from judicial review; no nat'l defense exemption from NEPA [ 571 F2d 1004, 1007 (8th Cir 1978); 555 F2d 817 (see PL-79/43.2); 483 FSupp 844, 863 (DC NE 1977)]; 5) Pls' challenges to adequacy of MX EIS not exempt from review under political question doctrine; noted presence of issues w/ significant political overtones does not automatically invoke political question doctrine [ 462 US 919, 942 (1983); see also 106 SCt 2860 (1986)]; 6) to characterize Pls' EIS challenges as political questions misconceives fundamental informational purposes of EIS under NEPA [ 541 F2d 1299 (8th Cir 1976)]; 7) all CO's claims re adequacy of EIS are justiciable as to all proposed MX missiles, including 10 already deployed; 8) EIS must: make worst case analysis of environmental impacts of accidental launch of MX, acts of God such as earthquakes; address environmental impacts of intentional use of 79 MX missiles; consider alternatives to MX project itself re remaining unappropriated 46 MX missiles of

- 43.4 -
100 requested; consider alternatives to basing 79/100 missiles in Minuteman III silos at Warren AFB; address environmental impacts of removal of 100 Minuteman III missiles from silos to make room for MX, of transportation of MX components from various locations to Warren AFB in WY, of measures to protect vulnerable MX from attack, such as superhardening, deep underground basing, or anti-ballistic missile systems (Star Wars?), of WY basing mode on CO; 9) mandatory injunctive relief against MX missile project available on EIS on all 100 missiles, including those already deployed, prohibitory injunctive relief available on 79/100 missiles (DC has authority to halt deployment). 5/18/88: 8th Cir, en banc, Heaney, CJ, rev'd, remanded, vacated, withdrew 1987 opinion from 819 F2d 1445-1459: claims not barred by political question doctrine; claims re environmental impact can be heard in fed'l ct; military not exempt from NEPA; claims re effects of wartime use, alternative systems fall outside NEPA. Arnold, CJ (Bright, McMillan, CJs) diss in part: EIS must explore alternative basing modes for MX. Military withdrew basing plan from NE; wrote new EIS for CO, then withdrew basing plan; based 50 MX missiles in WY near Warren AFB.

Andrew Reid, Broken Plow Law Office, Star Rte 1, Box 33B, Chadron, NE 69337; Frank Morris, Roger Finzel

  Nuclear Weapons Protests
PL-632/43.4. The Nation v. U.S. Dept of Defense 762 FSupp 1558 (SD NY 1991)

1/10/91: Pls-members of press sued DoD: Regs violated 1st, 5th Amdts by denying press access to military activities, providing preferential access, disparate treatment of reporters; sought declaratory, injunctive relief. 3/4/91: DoD lifted Regs. Defs moved to dismiss: 1) lack of standing; 2) political question doctrine; 3) controversy moot; 1st Amdt not bar on Gov't restricting access to combat activities where necessitated by compelling nat'l security concerns.

• 5/16/91: Sand, DJ, dism'd: claims for injunctive relief moot; action capable of repetition, eligible for declaratory relief but need not decide constitutional issues not presented in "clean-cut and concrete form;" Pres' war powers do not suspend freedom of press; cts can adjudicate conflicts between press, military.

Franklin Siegel, CCR, 666 Broadway, 7th Fl, NY, NY 10012

  Gulf War
PL-78/43.4. Persons for Free Speech at SAC v. U.S. Air Force 675 F2d 1010 (8th Cir 1982)

6/14/81: Offutt AFB near Bellevue, NE, planned open house including some nonmilitary orgs, public invited to designated areas. 5/21/81: Pls requested permission to participate to present alternatives to arms race. 5/29/81: Base commander denied request: Pls' proposed activities would not be in keeping w/ purpose of open house.

• 6/11/81: Pls sought injunctive relief; DJ did not grant injunction. 6/13/81: 8th Cir remanded w/ instructions Pls should amend complaint to include challenge to Air Force reg cited by base commander in letter of denial. 9/23/81: DC upheld base commander's letter. 4/28/82: 8th Cir aff'd (5-3): open house did not create temporary

- 43.5 -
public forum; Def need only provide rational basis for excluding certain groups; commander's decision to allow only civilian groups whose activities were in keeping w/ purpose of open house — to foster good community relations — not an abuse of discretion.

Michael D Gooch

  Free Speech on Military Base
PL-333/43.5. No GWEN Alliance v. Aldridge, Air Force Sec'y 841 F2d 946 (9th Cir 1988)

Air Force attempted to install 300 foot radio towers, components in Ground Wave Emergency Network (GWEN), to send war messages to U.S. forces during/after nuclear war, withstanding nuclear detonations in atmosphere. Pl sued: Air Force EIS inadequate: failed to discuss environmental impacts of GWEN, including impact of nuclear exchange provoked in part by installation/use of GWEN. Air Force issued generic environmental assessment, site specific environmental assessments, finding of no significant impact.

• DC granted Air Force motion for summary judgment. 9/30/88: 9th Cir aff'd in amended opinion: Pl's allegations precisely type USSC found sufficient to establish standing; this ct cannot review merits of nat'l defense policy; appellants want to insure Air Force complies w/ NEPA by considering all environmental effects of constructing GWEN; no nat'l defense exception to NEPA; suit raises justiciable questions; USSC has rejected argument EIS should discuss potential impact of fear of nuclear accident on area residents; since fear is not impact on physical environment, link missing in causal chain placing it beyond reach of NEPA; EIS required not only when challenged agency action will in fact cause significant effects on human environment, but also when action may have significant effect; EIS need not discuss remote, highly speculative consequences; all disagree on precise environmental impact of nuclear exchange; everyone recognizes effects would be catastrophic; detailing results serves no useful purpose.

Ralph A Bradley, Bradley & Gordon, 296 E 5th St, Eugene, OR

  Nuclear Weapons Protest
PL-509/43.5. Michael Dukakis v. Dept of Defense 686 FSupp 30 (DC MA 1988); 859 F2d 1066 (1st Cir 1988); cert den 109 SCt 1743 (1989)

1986: Cong passed Montgomery Amdt: Govs cannot withhold consent from calling Nat'l Guard unit to active duty. 1988: Pl-MA Gov sued: Montgomery Amdt unconstitutional, violation of militia clause.

• 5/6/88: Keeton, DJ: provision constitutional. 1988: 1st Cir aff'd. 1989: USSC denied cert.

Douglas Wilkins, MA Asst Atty Gen'l

  National Guard
PL-111/43.5. Hudson River Sloop Clearwater v. U.S. Navy 659 FSupp 674 (ED NY 1987); 836 F2d 760 (2d Cir 1988); 891 F2d 414 (1989)

10/3/86: Several NY City Council reps, environmental orgs sued to enjoin proposed Navy homeport on Staten Island of nuclear-capable Surface Action Group (USS Iowa, 6 supporting vessels): EIS required

- 43.6 -
by NEPA (42 USC §4332(2)(c)) grossly inadequate: fails to discuss effect of stationing nuclear weapons on environment, dense population, adverse environmental/economic impact of homeporting on NYC.

• 4/28/87: Sifton, DJ: plans submitted by Navy inadequate to establish compliance w/ NEPA; directed Navy to submit additional information; granted Defs motion for partial summary judgment on public disclosure claim: Navy need not disclose information about nuclear weapons on ships. 5/19/87: Navy announced it would soon begin dredging. 7/13/87: DJ: Pls showed substantial likelihood of prevailing on merits, but denied Pls' motion for preliminary injunction, citing countervailing harm of enjoining major public project involving nat'l security; granted Navy summary judgment on issue of danger of nuclear accidents. 9/23/88: DJ granted Pls' leave to file amended complaint: Def failed to comply w/ NEPA requirement to integrate environmental concerns re presence of nuclear weapons into its "internal [non-public] decision" process. 5/29/89: DJ rejected Pls' internal decision claims for lack of subject matter jurisdiction under "nat'l security doctrine" ( 92 US 105 (1875)), rejected public disclosures claim. 12/5/89: 2d Cir aff'd: 1) whether Navy complied to "fullest extent possible" w/ NEPA not subject to judicial scrutiny in this case; 2) Navy still bound to consider environmental impact in any Homeport proposal; 3) Navy subject to oversight by Cong which has access to classified information denied Pls, approves/disapproves homeporting.

Lawrence Marks, Gold, Farrell & Marks, 41 Madison Ave, 10010; Leonard M Marks, Simeon A Sahaydachny, Karen Shatzkin, David Carey, Robert L Boehm; all NY, NY; Nancy C Crisman, Stephen W Preston, Nicholas C Yost, Washington, DC

See PL-150/48.3; PL-270/48.3; PL-271/48.4; PL-272/48.4; PL-273/48.4; Eisenberg, PL-274/25.15

  Nuclear Homeporting
PL-424/43.6. Nevada v. Watkins, Sec'y, Dept of Energy 914 F2d 1545 (9th Cir 1990); cert den 111 SCt 1105 (1991); 943 F2d 1080 (1991)

1987: Cong chose Yucca Mtn as nuclear waste dump site. 1989: NV Legislature passed 2 bills: NV did not want to become nation's dumping ground; fed'l gov't could not establish dump site in NV w/out prior consent of NV legislature; refused consent. 12/24/89: Pl sought injunctive relief under stat: Cong did not respond to NV legislation w/in required 90 days; NV submitted valid notice of disapproval; NV's right to participate in political process violated: not represented in Cong decision to choose Yucca site.

• 9/19/90: 9th Cir, Alarcon, CJ: aff'd decision of Def to continue investigation, state consent not required when Cong acts pursuant to plenary authority to regulate public lands; 10th Amdt does not protect state from being outvoted in Cong. 3/4/91: USSC denied cert. 8/28/91: 9th Cir, Fletcher, CJ: denied Pl's petition for review of environmental assessment by DoE Sec'y: mooted by statutory amdt requiring Sec'y to proceed w/ site characterization at Yucca Mtn.

Brian McKay, NV Atty Gen'l, Capitol Bldg, Carson City, NV

  Nuclear Waste
- 43.7 -
PL-253/43.7. People of Saipan ex rel Guerrero v. U.S. Dept of Interior, Continental Airlines 356 FSupp 645 (DC HI 1973); 502 F2d 90 (9th Cir 1974): cert den 420 US 1003 (1975)

High Commr of Saipan (appointed by U.S. Sec'y of Interior) gave 50-yr lease of public land to Continental Airlines for hotel construction. Pls sued to enjoin construction: High Commr violated NEPA (42 USC §4321), Trusteeship Agreement, wishes of Saipan elected reps by granting lease w/out considering environmental impact.

• King, DJ, dism'd: Trust Territory Gov't not fed'l agency subject to judicial review under NEPA, Trusteeship Agreement does not give people of Saipan individual legal rights they can assert in fed'l cts. 7/16/74: Goodman, CJ, aff'd dismissal, modified: UN Charter Art 73, Trusteeship Agreement Art 6 call on Trustee to promote well-being of trusteeship inhabitants, protect them against loss of land, resources; individuals can enforce treaty rights in fed'l cts if need be ( 470 F2d 461 (1972), PL-561/33.1); in cases involving actions of High Commr such rights to be initially asserted in High Ct of Trust Territory; if that ct denies, it has jurisdiction to review actions of High Commr. Pls have right to refile in DC.

Samuel Withers III, Edward C King, Daniel H MacMeekin, Micronesia Legal Services Corp; Prof Richard Falk, Princeton U

  Saipan/Trusteeship
PL-673/43.7. Western Shoshone Identifiable Group v. U.S.; Western Shoshone Legal Defense & Education Assn v. U.S. 11 Indian Claims Commn 416 (1962); 29 ICC 5 (1972); 35 ICC 457 (1975); 531 F2d 495 (9th Cir 1976); 40 ICC 305 (1977); 219 Ct Cl 994, 593 F2d 994 (9th Cir 1979); cert den 444 US 973 (1979)

1863: U.S., Western Shoshone signed Treaty of Ruby Valley: granted U.S. rights of way across Western Shoshone land. 1872: U.S. established Western Shoshone reservation outside their territory contrary to treaty. 1934: Taylor Grazing Act, 43 USC §314, authorized Interior Dept to establish growing districts of vacant, unappropriated, unreserved land. 1951: Temoak Band of Western Shoshone sued U.S. gov't in Indian Claims Commn (ICC) for compensation for land taken, recognition of retained land under Treaty of Ruby Valley, ICC Act, 25 USC §70 (1946).

• 1962: ICC: 1) W Shoshone held aboriginal title to 22 million acres; 2) U.S. gov't acquired or treated it as public land. 1966: ICC set U.S. taking date at 7/1/1872. 1972: ICC set land value, damages as of 1872. 1977: Temoak Band petitioned Interior Dept for recognition of ownership, stay of ICC proceedings. ICC denied stay, issued award: $21.5 million. 9th Cir aff'd. 1979: USSC denied cert.

  Indigenous Rights
PL-673a/43.7. U.S. v. Dann Band of Western Shoshone (Indian Claims Commn); 572 F2d 222 (9th Cir 1978); 706 F2d 919 (1983); 470 US 39 (1985); 873 F2d 1189 (1989); (OAS Inter-American Commn on Human Rights 1993)

1920s: Dewey, Sophia Dann-Western Shoshone Indians began herding livestock in Western Shoshone territory open ranges,

- 43.8 -
bought 800 acres. 1936: Dewey Dann erroneously informed of effect of Taylor Grazing Act, 43 USC §314 (1934), began obtaining grazing permits, paying fees. 1960s-70s: Carrie, Mary Dann continued grazing livestock on disputed lands w/out Bureau of Land Management permit. 1974: Defs tried to intervene in Western Shoshone land claim in Indian Claims Commn (see PL-673/43.7): land was not taken; sued for ownership recognition, not compensation. 1977: Defs arrested: trespass.

• 1977: DC NV granted gov't summary judgment: 1962 Indian Claims Commn order re Western Shoshone claim (PL-673/43.7) estopped Defs' recognized title assertion. 1978: 9th Cir rev'd, remanded: Indian Claims Commn judgment on appeal not finalized, could not estop Defs. On remand, DC NV: 1) denied damages for previous trespass; 2) issued injunction for further trespass. 1983: 9th Cir: Indian Claims Commn judgment re Western Shoshone land claim could not estop Defs' aboriginal title assertion: 1) judgment not final until money distributed to Western Shoshone or used for their benefit; 2) no clear congressional intent to extinguish aboriginal title. 1985: USSC rev'd, remanded, Brennan, J: Ct of App interpretation of 25 USC §70 contrary to purposes of Act. On remand, DC NV specified retained aboriginal rights. 1989: 9th Cir rev'd, remanded: Defs had no linear ancestors w/ required, exclusive aboriginal title. 1992: Bureau of Land Management made several attempts to confiscate Danns' livestock on disputed land. 4/2/93: Danns filed complaint against U.S. in OAS Inter-American Commn on Human Rights. Pending.

Robert T Coulter, Indian Law Resource Center, 508 Stuart St, Helena, MT 59601

See PL-673/43.7

  Indigenous Rights
PL-133/43.8. Joe Begay v. U.S. (NHIRC); 16 Cl Ct 107 (Ct of Claims); 865 F2d 230 (Fed Cir 1988)

1974: Cong passed Navajo and Hopi Indian Settlement Act (Pub Law 93-531, 25 USC §640d) forcing relocation of 12,000-15,000 Navajo, Hopi Indians from Big Mountain, AZ before 7/8/86; requiring Gov't to create Navajo-Hopi Indian Relocation Commn (NHIRC) to "minimize" adverse impact, provide "decent, safe, sanitary housing." 1979: NHIRC forced Pl-Navajo families to move from reservation homes; relocated Pl's family to unsafe, inadequate trailer. Fall/82: Pls requested heat for newborn child; NHIRC took no action. 12/82: Child died of pneumonia. 5/8/85: Pls sued Gov't for $3 million damages for injuries suffered through relocation: Gov't violated statutory requirements of §640(d), breached relocation contract terms, trust responsibility U.S. owes Indian people.

• Lydon, Claims Ct J, denied claim: Pls not entitled to damages beyond benefits received under Act. 12/5/88: Fed Cir, Archer, CJ, aff'd.

Big Mountain-Joint Use Area Legal Defense/Offense Comm, Lewis Gurwitz, Lee Brooke Phillips, Richard W Hughes

See PL-294/34.3

  Native American Rights
- 43.9 -
PL-16/43.9. Dellums v. Smith/Meese, Atty Gen'l 573 FSupp 1489 (ND CA 1983); 577 FSupp 1456 (1984); 797 F2d 817 (9th Cir 1986)

7/5/83: U.S. Rep, citizen, Nicaraguan resident sued U.S. Atty Gen'l: to conduct investigation to determine if Gov't support of paramilitary operations against Nicaragua violates Neutrality Act (18 USC §960).

• 11/3/83: Weigel, DJ: Atty Gen'l must conduct investigation. 8/86: 9th Cir dism'd: Pl lacked standing. Pl received 2 90-day extensions to file for reh'g. After Special Prosecutor Lawrence Walsh appointed, Pl sent all information to Walsh, asked 9th Cir to dismiss case as moot.

Jules Lobel, Mark Van der Hout, Ellen Yaroshefsky, Michael D Ratner, Margaret L Ratner, Sarah Wunsch, Peter Weiss

See PL-275/23.13

  Nicaragua
PL-417/43.9. Sylvia Baraldini v. Thornburgh, Atty Gen'l 691 FSupp 432 (DC DC 1988); 884 F2d 615 (DC Cir 1989)

1986-88: Pls-female prisoners transferred to High Security Unit (HSU) fed'l prison in Lexington, KY. 1988: Pls sued: conditions violated 5th, 8th Amdts; selection based on political views violated 1st Amdt.

• 7/19/88: Parker, DJ: 1st Amdt violation; no 5th, 8th Amdts violation. 9/8/89: DC Cir rev'd, Kaufman, CJ: HSU selection constitutional.

Adjoa Ayetora, Aleta Freeman, Nat'l Prison Project; Margaret Ratner, Joan Gibbs, Stephanie Moore, David Cole, Elizabeth Fink, Jan Susler, Michael Deutsch, CCR; Mary O'Melveny, Lubell & Lubell

  Cruel Punishment
PL-849/43.9. Peter Irons v. FBI, Dept of Justice 571 FSupp 1241 (DC MA 1983); 811 F2d 681 (1st Cir 1987); 880 F2d 1446 (1989)

1983: Pl-academic historian filed request w/ Def for: 1) large volumes of documents provided by informants in 1940s Smith Act (18 USC §2385) prosecutions of Communist Party leaders; 2) fee waiver of duplication costs: research in public interest (FOIA, 5 USC §552). Def refused waiver: 28 CFR 16.9(c). Pls sued.

• 11/4/83: Garrity, DJ, denied Pl's summary judgment motion: informants testified in public, requested information no longer w/in scope of 5 USC §552 (7)(d); granted atty fees. 2/5/87: 1st Cir, Selya, CJ, rev'd. 12/7/89: 1st Cir aff'd en banc, Breyer, CJ: FOIA, 5 USC §552 does not require FBI to turn over information provided by confidential sources in Smith Act trials.

Edward Greer, 133 Mt Auburn St, Cambridge, MA 02138

  Freedom of Information
PL-238/43.9. CISPES v. Webster/Sessions, FBI Dir 705 FSupp 25 (DC DC 1989); 738 FSupp 544 (1990); 929 F2d 742 (DC Cir 1991)

11/88: Pl-Comm in Solidarity w/ People of El Salvador (CISPES) filed class action to: prevent FBI from using/disseminating records obtained in illegal investigation of Pl: conducted to deter Pl from exercising 1st Amdt rights; seal files on Pl in Nat'l Archives. FBI filed motion admitting

- 43.10 -
investigation's impropriety, invasiveness, obstruction of activities protected by Const; sought to dismiss remainder of complaint.

• 1989: DC denied injunction. FBI moved files on Pl to Nat'l Archives. 1990: DC dism'd: case moot. 4/12/91: DC Cir, Randolph, CJ, aff'd.

Beth Stevens, Michael Ratner, Margaret Ratner, CCR, 666 Broadway, NY, NY 10012; Alan Levine, Mel Wulf, Joe K Crews, James Klimaski

See PL-238a/52.1, PL-238b/41.8

  Political Surveillance
PL-560/43.10. Marie Pierre v. U.S. (INS); (SD FL); 525 F2d 933 (5th Cir 1976)

216 Haitian Pets applied for political asylum as refugees under UN Convention and Protocol Re Status of Refugees; INS rejected claims. Pets filed habeas petitions. DC ordered stay of expulsion pending Pets' exhaustion of admr remedies, appellate review. Pets applied for preliminary injunction enjoining INS from refusing to authorize Pets' employment pending asylum claims.

• Mehrtens, DJ, denied injunction: lack of jurisdiction: 8 USC §§1153(a)(6), 1182(a)(14), set quotas prohibiting certain aliens from entering U.S. to work. 1976: 5th Cir, Dyer, CJ, aff'd on different grounds: quota does not affect rights given by Convention, Art 17, to those seeking political asylum; Ct entertaining petition for habeas cannot review unrelated question of employment. Goldberg, CJ, conc: decision does not preclude independent action if INS denial of employment authorization violated right granted by treaty, stat.

Eric Lieberman, NY

  Asylum
PL-601/43.10. Jean-Baptiste v. U.S.; Sannon v. U.S. (INS); 427 FSupp 1270 (SD FL 1977); 566 F2d 104 (unpublished)

1976: U.S. officials intercepted Pls-300 Haitian citizens at U.S. border, paroled into U.S. INS Dist Dir reviewed interviews by INS officers, advice from State Dept, denied each Pl's claim for political asylum. At exclusionary proceedings, ALJs refused to hear evidence re requests for asylum under UN Convention and Protocol Status of Refugees (19 UST 6223): all Pls excludable. BIA denied Pls' appeals. Pls sued: never afforded fair h'g by INS re refugee claims; interviews conducted in summary fashion at border in biased manner, w/out counsel, explanation of issues. Pls' attys given only 1 day prior notice of exclusion, not allowed to offer evidence re claims for political asylum.

• 2/15/77: King, DJ: Pls statutorily entitled to present asylum claims at exclusion h'gs under INA; remanded to INS for further exclusion h'gs. Ct of App vacated, remanded in unpublished opinion.

Donald I Bierman, Neil R Sonnett, Miami, FL; Eric M Lieberman, Rabinowitz, Boudin, NY, NY

  Asylum
PL-456/43.10. Abraham Sarkis v. Sava (INS); 585 FSupp 235 (ED NY 1984); 599 FSupp 724 (1984)

6/17/82: Pets-Armenian Christians arrived in U.S. from Iraq, requested asylum: fear of religious persecution. 8/3/82: After h'g, BIA denied

- 43.11 -
asylum. 3/29/83: Pets introduced new evidence; BIA granted reh'g. 5/24/83: BIA again denied asylum. 1/6/84: BIA dism'd appeal, ordered deportation. Pets filed habeas petitions under 8 USC §1105a(b).

• 5/12/84: McLaughlin, DJ: remanded. 7/17/84: BIA denied Pet's appeal. 12/12/84: DJ denied writ: BIA properly denied application.

Edward Costikyan

  Asylum
PL-65/43.11. Carcuz-Toledo, v. INS (ED CA No Civ-84-0185); (9th Cir Nos 84-7242, 84-7108)

Pet marked for political persecution due to union activism in Guatemala. 9/81: Pet left Guatemala, entered U.S. 1981: INS ordered Pet deported. 6/83: Catholic Social Services filed motion to reopen case.

• 1/17/84: 9th Cir aff'd INS failure to grant voluntary departure. 1/31/84: Pet filed motion to stay, reopen deportation h'g, political asylum application. 2/6/84: INS issued arrest warrant, arrested, detained Pet. 2/7/84: Pet filed motion for TRO, habeas petition. 1985: Pet emigrated to Canada under Canada's less stringent interpretation of same int'l standard (1968 Refugee Protocol). Case dism'd.

James F Smith

  Asylum
PL-69/43.11. Arturo Vallejo v. INS (CD CA No CV78-1912-WMB)

Pls filed class action challenging custodial interrogation of Def before initiation of deportation h'gs: 1) does 8 CFR 292, 5th Amdt require persons arrested w/out warrant be advised before or after commencement of post-arrest interrogation, a) may consult w/ counsel, b) counsel will be allowed if desired, c) statements made may be used against them in criminal/admr h'g; 2) do Pl's allegations of certain coercive INS policies, practices violate 8 CFR 287.3, 5th Amdt?

• 12/28/84: Byrne, DJ: denied Defs' motion to dismiss. Defs filed motion to reconsider. 10/4/85: DJ: claims for relief under 8 CFR 287.3 moot; dism'd claims for warnings statements elicited may be used against persons subject to custodial interrogation; would consider Pl's claims for 5th Amdt violations, right to counsel.

Peter A Schey

  Immigrants' Rights
PL-539/43.11. Lawyers Committee for Human Rights v. INS 721 FSupp 552 (SD NY 1989)

10/12/86: INS detained Pl's client Patricia Lara Salive, Colombian journalist, at Kennedy Airport based on information she was associated w/ Colombian terrorist org, Cuban intelligence. INS held Lara 6 days, excluded her w/out h'g. 10/23/86: Pl sent letters to INS, FBI, State Dept, CIA requesting information under FOIA re exclusion. Gov't agencies released several docs in entirety, some in redacted form, withheld 80 docs entirely based on FOIA exemptions. 5/26/87: Pl sued for injunction ordering immediate disclosure of all records improperly withheld. Defs filed for summary judgment, submitted affidavits claiming specific statutory exemptions in FOIA. Pl also moved for partial summary judgment: 1) Defs failed to describe

- 43.12 -
context/substantive content of withheld docs; 2) made only conclusory showing of applicability of each claimed exemption.

• 9/15/89: Walker, DJ, granted in part, denied in part: 1) affidavits submitted by FBI sufficient to support nat'l security exemptions as to names, file numbers, designations as to level, focus of investigatory activities, targets of particular intelligence activities; 2) CIA affidavits insufficiently detailed to support nat'l security exemptions; 3) personal privacy exemption protects from disclosure names of individuals contained on INS list of persons "excludable" for numerous reasons, including communist, subversive beliefs, actions; excluded individuals should be identified by occupation, country.

Arthur C Helton, Lawyers Comm for Human Rights, NY, NY

  Freedom of Information
PL-420/43.12. American Friends Service Comm v. Thornburgh (INS); 718 FSupp 820 (CD CA 1989); 951 F2d 957 (9th Cir 1991); superseded 961 F2d 1405 (1992)

1986: Pres signed IRCA, 8 USC §1324a: prohibited employing aliens not authorized by INS, required employers to verify employees' authorization. 11/22/88: Pls sued for declaratory, injunctive relief: §1324a violated 1st Amdt free exercise of religion; coerced Pls to discriminate; promoted deprivation, hunger. Brief describes Pls' charitable activities, advocacy of just, nondiscriminatory immigration policies, relationship to Quaker beliefs.

• 8/23/89: Ideman, DJ, dism'd: §1324a not invalid under 1st Amdt despite possible substantial impact on free exercise rights given compelling Gov't interest in immigration control. 12/18/91: 9th Cir, Canby, CJ, aff'd. 4/20/92: Superseded: 9th Cir, Canby, CJ, aff'd valid as neutral law of general applicability (no religious infringement).

Peter A Schey, Carlos Holguín, Nat'l Center for Immigrants' Rights, 256 S Occidental Blvd, Los Angeles, CA 90057; Ira Gollobin, 277 Broadway #1200, NY, NY 10007

  Immigrants' Rights
PL-587/43.12. Alvarado-Guevara v. INS, Attorney General 902 F2d 394 (5th Cir 1990)

Pls-undocumented immigrants held/worked in INS detention center, paid $1/day. 1986: Pls sued: violation of Fair Labor Standards Act (FLSA), 29 USC §201.

• Hinojosa, DJ: dism'd. 6/5/90: 5th Cir aff'd: Pls not "employees"; FLSA not intended to protect undocumented workers in detention.

Mark Schneider, Harlingen, TX; David Gelfand, Tulane Law School; Terry Allbritton, New Orleans, LA; Richard Renner, SE Ohio Legal Services, New Philadelphia, OH

  Illegal Aliens
PL-242/43.12. American-Arab Anti-Discrimination Committee v. Reno (INS); 714 FSupp 1060 (CD CA 1989); 940 F2d 445, 970 F2d 501 (9th Cir 1991)

4/3/87: Pls-Comm, Palestinian deportees sued for injunction to stop deportation of Los Angeles 8 (see PL-241/44.4): McCarran Act provisions under which deportation ordered unconstitutional.

- 43.13 -

• 4/27/87: Wilson, DJ: INS use of McCarran "subversion" provisions "bordering on the outrageous." 5/87: DJ: Ct of App should consider merits. 2/24/88: 9th Cir: denied writ of mandamus, refused to rule on constitutional issues until deportees exhausted admr remedies. 1/26/89: Wilson, DJ: (PL-323/50.4) to suspend McCarran subversion provisions, exempt PLO unconstitutional: 1st Amdt protects aliens in U.S. 7/26/91: 9th Cir vacated, remanded, Poole, CJ: individual Pls have standing; Pl-Comm does not have standing; premature to review claim.

Dan Stormer, Marc Van Der Hout, NLG, 3689 18th, San Francisco, CA 94110; Paul Hoffman, Wade Henderson, Hope Nakamura, ACLU; Peter Schey; David Cole, Michael Ratner, CCR, 666 Broadway, 7th Fl, NY, NY 10012

See PL-241/44.4; PL-323/50.4

  Political Deportation
PL-689/43.13. Gisbert v. U.S. Atty Gen'l 761 FSupp 1258 (WD LA 1991); 988 F2d 1437 (5th Cir 1993)

1980: Pls-Mariel Cubans entered U.S.; arrested as immigrants; released on parole; arrested, convicted of crimes in U.S.; immigration parole revoked while U.S. tried to find country willing to accept deportees; Pls detained indefinitely, filed habeas petitions.

• 4/12/91: Little, DJ: dism'd. 4/28/93: 5th Cir aff'd, Garwood, CJ: 1) indefinite detention of excluded Pls does not violate aliens' substantive, procedural rights; 2) public int'l law inapplicable; 3) detention did not violate fundamental human rights law, jus cogens.

Mark Kemple, Karen Frederikson, 333 S Grand, Los Angeles, CA 90071; Jerome Lahey, Lafayette, LA; Gary Leshaw, Atlanta Legal Aid Society; David Webster, Suny & Hewes; both Atlanta, GA

  Mariel Cubans
PL-339/43.13. Dellums v. Nuclear Regulatory Commission 863 F2d 968 (DC Cir 1988)

10/21/86: Cong passed Comprehensive Anti-Apartheid Act (22 USC §5001); §309 bans importation of "uranium ore," "uranium oxide." 1/87: 8 applications filed w/ NRC to import 3,700 metric tons of uranium hexafluoride from S Africa, Namibia. Pls-Rep Dellums, other Reps, S African exile, NM Sen representing many unemployed uranium miners, 1 such miner, petitioned NRC to block imports. 9/87: NRC: Act allows importation of S African uranium in forms other than ore or oxide, although such uranium may fuel reactors; granted pending licenses.

• 12/16/88: DC Cir dism'd, Silberman, CJ: Pls lacked standing, none injured by disputed action; Act did not cover uranium hexafluoride.

Eldon Greenberg, Nuclear Control Inst, at NRC; on appeal: Arnold & Porter, 1200 New Hampshire Ave NW, 20036; all Washington, DC

  Apartheid
PL-74/43.13. NGO Committee on Disarmament v. Haig, Sec'y of State 697 F2d 294 (2d Cir 1982)

6/7-7/9/82: State Dept denied 318 visas under McCarran-Walter Act to aliens who planned to attend UN Second Special Session on Disarmament

- 43.14 -
in NY; denied 286 from Japan: affiliations w/ orgs tied to World Peace Council, which has long-standing, direct political, financial affiliation w/ Communist Party of USSR. Some belong to Gensuikyo, Japan Council Against Atomic, Hydrogen Bomb. Some of those barred had previously entered U.S. w/out difficulty. 137 Gensuikyo members attended 1st UN Special Session on Disarmament.

• 6/11/82: DJ denied Pls preliminary injunction requiring grant of waivers of excludability to foreign nat'ls. 6/18/82: 2d Cir aff'd.

Steven R Shapiro, Arthur N Eisenberg, Charles S Sims

  Visa Denial
PL-318/43.14. Palestine Information Office v. Shultz, Sec'y of State 674 FSupp 910 (DC DC 1987); 853 F2d 932 (DC Cir 1988)

1978: Pl opened Washington office to lobby U.S. officials, disseminate pamphlets/news releases re PLO, other Palestinian orgs; registered w/DoJ as foreign agent. 9/15/87: State Dept elevated Pl to foreign mission, ordered Pl's office closed. 10/13/87: Pl sued for stay of order. Amicus argued closing contrary to 1st Amdt, obstructive of search for peace in Middle East, violation of int'l law, including UDHR Art 19: right to receive, impart information, ideas. 12/16/87: Cong passed Anti-Terrorism Act barring PLO from operating offices in U.S.

• 12/87: DJ upheld designation of Palestine Information Office as foreign mission, "entity" engaged in other activities on behalf of PLO; granted Gov't's request to close office. 8/88: DC Cir aff'd.

ACLU; amicus: Leonard Boudin, Peter Weiss for American-Arab Anti-Discrimination Comm, American Friends Service Comm, FOR, CCR, Clergy & Laity Concerned

See UN, PL-309/5.3; PLO, PL-259/30.6; PL-260/30.6

  Palestinians
PL-295/43.14. Adams v. Baker, Thornburgh (State Dept); (DC MA 1989); 909 F2d 643 (1st Cir 1990)

7/22/88: Pl-Pres, Sinn Fein, N Ireland, UK Parliament member sued to challenge denial under McCarran-Walter Act of U.S. visa to conduct speaking tour: violation of 1st Amdt free speech, 5th Amdt equal protection; Frank Amdt, McCarran-Walter Act (8 USC §1182(a)(28) (f), PL-323/50.4) prohibiting visa denial based on activities protected by Const for U.S. citizens.

• 1989: Stimmer, DJ: granted Def summary judgment. 2/6/90: 1st Cir aff'd, Torruella, CJ: Pl properly excluded for advocacy of violence.

Edward Copeland, 740 Broadway, NY, NY 10003; Leonard Boudin

  Visa Denial
PL-227a/43.14. Robin Harper v. IRS 32 CCH TCM 994 (Tax Ct 1973); 505 F2d 730 (3d Cir 1974)

1951: Pl-Quaker classified CO. 1958: Def stopped paying income taxes, sent money to peace programs. 1971: IRS assessed Pl $26,159 for 1962-1967 taxes. Pl challenged: payment of taxes used for war violated religious beliefs, 1st Amdt freedom of religion.

• 1973: Tax Ct rejected Pl's claims. 10/17/74: 3d Cir aff'd.

See PL-227/41.20, PL-227b/41.20

  War Tax Refusal
- 43.15 -
PL-146/43.15. Haitian Refugee Center, Inc v. Admiral Gracey (Coast Guard); 600 FSupp 1396 (DC DC 1985); 809 F2d 794 (DC Cir 1987)

9/23/81: U.S., Haiti signed Interdiction Agreement authorizing U.S. to board Haitian flag vessels on high seas, make inquiries, return vessels, refugees to Haiti. 1984: U.S. interdicted Haitian asylum seekers on high seas, denied refuge in U.S., returned all to Haiti. 1985: Pls sued U.S.: violating obligation of non-refoulement, under 1951 UN Convention on Status of Refugees, 1961 Protocol prohibiting any action by nation that obliges person to return to, or remain in, territory where person may be exposed to persecution, (PL-356/50.2), INA (8 USC §1253(h)).

• DJ dism'd complaint for failure to state claim for relief. Pls appealed. 7/8/85: UN High Commr for Refugees submitted amicus brief urging Ct to vacate, remand dismissal: non-refoulement is peremptory rule of int'l law; provisions of INA (8 USC §1101), Coast Guard Stat (14 USC §89(a)) should have been construed consistently w/ it; non-refoulement applies whether Gov't acts in/outside territorial jurisdiction; Art III of 1951 Convention is self-executing, allows no exceptions. 1/9/87: DC Cir (2-1), Bork, CJ: from 1981-87, U.S. interdicted 78 vessels carrying 1800 Haitians, returned all to Haiti; members of Pl-Center who failed to state 1st Amdt claim failed to allege injury: lacked Art III standing; interests asserted by Pl-corp/members not w/in zone of interest intended to be protected by laws forming basis of Pls' challenge lacked prudential standing. Edwards, CJ, diss in part: Pl has standing; Pres had statutory, inherent constitutional authority to initiate interdiction program; UN Protocol does not cover refugees not yet admitted to country; no Congressional intent to protect non-admitted aliens.

Ivor C Jackson, Guy Goodwin-Gill, Joachim Henkel, Marvin E Frankel, Ralph G Steinhardt, Charles Gordon

See PL-356/50.2

  Refugees
PL-410/43.15. Welch v. U.S. (IRS); 750 F2d 1101 (1st Cir 1985)

10/28/83: Pls filed U.S. income tax returns including "war tax credit", letters explaining basis therefore. IRS assessed $500 penalty under newly-created TEFRA, 26 USC §6702 ("filing frivolous tax return"). Pls sued under 26 USC §6703 to abate penalty: violated 1st Amdt freedom of religion, conscience, political speech; §6702 is vague as applied.

• Mazzone, DJ, dism'd complaint: Rule 12(b)(6). 1/4/85: 1st Cir aff'd.

David L Kelston, Nancy Gerther, John Renstein

  War Tax Refusal
PL-223/43.15. Martin Bradley v. U.S. (IRS); 817 F2d 1400 (9th Cir 1987)

4/84: Pl sent antiwar message to IRS on 1983 tax form 1040. 7/30/84: IRS fined Pl $500: filing frivolous tax return (IRC 6702). 11/28/84: Pl sued challenging fine: protest not "tax return" per IRC 6702; protected 1st Amdt freedom of speech, assembly.

- 43.16 -

• 6/14/85: Legge, DJ, granted Def's motion for summary judgment: 587 FSupp 1056. 5/22/87: 9th Cir aff'd.

Susan Sher, Peter Goldberger

  War Tax Refusal
PL-418/43.16. U.S. v. Philadelphia Yearly Meeting (IRS v. Quakers)

753 FSupp 1300 (ED PA 1990)

1981-84: 2 employees of Def refused to pay taxes: money for military activities, would violate religious principles. Def refused to enforce IRS levies to collect. 8/18/88: IRS sued to collect taxes, interest, penalty. Def raised religious principles as 1st Amdt issue; "good cause" exemption under 26 USC §6332(c). 3/1/89: U.S. moved for summary judgment. 4/3/89: Def filed cross-motion for summary judgment.

• 12/20/90: Shapiro, DJ, granted partial summary judgment for Pl, Def: levied amount of unpaid taxes against Def, vacated penalties.

Peter Goldberger, The Ben Franklin Ste 400, Chestnut St at 9th, Philadelphia, PA 19107

  War Tax Refusal
PL-164/43.16. National Assn of Radiation Survivors v. Derwinski (VA); 589 FSupp 1302 (ND CA 1984); rev'd 473 US 305 (1985); 111 FRD 595 (ND CA 1986); 115 FRD 543 (1987); 782 FSupp 1392 (1992); rev'd 994 F2d 583 (9th Cir 1992)

4/13/83: 2 vets, 4 widows sued challenging constitutionality of statutory $10 maximum fee that may be paid an atty/agent representing vet before Vets Admr when seeking benefits for service-related death, disability (38 USC §3403(c)).

• 6/12/84: Patel, DJ: fee cap unconstitutional violation of 5th Amdt due process; issued nationwide preliminary injunction. 9/27/84: USSC issued stay. 6/28/85: USSC rev'd (6-3), Rehnquist, ChJ: fee cap does not violate due process. O'Connor, J, conc: merits of Pls' claims remain open on remand: difficult to evaluate solely on record of affidavits, depositions developed at preliminary injunction stage. Pls filed amended complaint to add class claim challenging fee cap as unconstitutional when applied to atomic vets due to complexity of claims. 5/7/86: Patel, DJ: certified class of "atomic veterans" to challenge constitutionality of fee cap based on estimated 233,000 vets exposed to radiation at Hiroshima, Nagasaki, by U.S. Govt's 35-yr atomic-weapons testing program. 1/8, 5/1/87: Patel, DJ: fined VA $120,000 for destroying docs. 1/29/92: Patel, DJ: fee limit violates due process, 1st Amdt as applied to service-connected disability, death compensation claims based on exposure to ionizing radiation. 11/24/92: 9th Cir rev'd, Choy, CJ: evidence does not show attys necessary to make VA benefits process fair; fee limit does not violate due process, 1st Amdt.

Gordon Erspamer, Morrison & Foerster, 345 California St, San Francisco, CA 94104; amici: Fred Altshuler, Alfred Belcuore, Phineas Indritz; experts: Albert Bates, David Egilman, Roland Finston, Anthony Greenhouse

See PL-268/33.6; PL-269/33.6; PL-806/44.1

  Nuclear Testing Victims
- 44.1 -
e. CASES PENDING

PL-704/44.1. Suzan S Harjo v. Washington "Redskins" (U.S. Patent & Trademark Office 1992)

9/17/92: Pl-Native American filed fed'l admr law action to remove U.S. Gov't sanctioning name "Redskins" for Washington football team: U.S. trademark law, related case law clearly prohibit trademark registration of offensive or disparaging words.

• Pending.

Stephen R Baird; Morningstar Foundation, 403 10th St SE, 20003; both Washington, DC

  Native Americans
PL-806/44.1. Downwinders v. Cheney, Sec'y, DoD, Stone, Sec'y of Army (CD UT #91-C-681J, 1991)

1950: Dugway Proving Grounds (DPG), UT began testing biological chemicals. 1/23/91: Def increased testing: Desert Storm war. 2/11/91: Pl-nonprofit corp requested information re tests. 4/16/91: Pentagon issued "gag order" on all DPG tests. 5/2/91: Def released review of tests, not record; Pl obtained record under FOIA (5 USC §552); public informed of "simultant" bacteria testing in DPG's aerosol chamber. 6/3/91: Def began series of tests, releasing chemical weapons outside DPG to determine performance of detectors, possibly causing health effects to public. 7/2/91: Pl sued to enjoin Def from further testing: violation of NEPA (42 USC §4332 (2)(c)); APA (5 USC §500); (PL-93/2.4).

• Pending.

Andrew B Reid, PO Box 876, Chadron, NE 69337; Frank E Moss, 175 S Main, 10th Fl, 84111-1956; amici: Utah Medical Assn (c/o Kurt M Frankenberg, PO Box 45678, 84145-5678); Physicians for Social Responsibility; all Salt Lake City, UT

See PL-164/43.16; PL-268/33.6; PL-269/33.6

  Testing Chemicals
PL-664/44.1. Acebedo v. U.S. (Navy); (U.S. Ct of Claims #93-124C 1993)

3/4/93: Pls filed class action on behalf of 8,600 abandoned Amerasian children, mothers: U.S. Navy breached implied-in-fact contract to provide Filipina women hospitality entertainers w/ medical, educational services; sought $69 million damages.

• Pending.

Joseph Cotchett, 840 Malcolm Rd Ste 200, Burlingame, CA 94010

  Health Care
PL-691/44.1. Ramírez v. American Mutual Protective Bureau (AMPB), U.S. Gen'l Services Admr (GSA) (EEOC 1993)

Def-AMPB removed Pls-security guards at San Francisco Dept of Treasury: "alleged language barrier"; claimed removal followed GSA

- 44.2 -
orders to remove all Filipino guards from treasury posts. 4/92: Pls filed complaint w/ EEOC: AMPB, GSA violated 1964 Civil Rights Act Title VII: discrimination based on accents, nat'l origin.

• 4/93: EEOC: Pls unlawfully discharged from posts due to race, nat'l origin. 5/93: Pls sued: discrimination based on race, nat'l origin. Pending.

Lora Jo Foo, William Tamayo, Asian Law Caucus, 468 Bush St, 3d Fl, 94108; Alan Sparer, Linda Foy, 3 Embarcadero Center; Edward Chen, ACLU-N CA, 1663 Mission St Ste 460, 94103; all San Francisco, CA; Christopher Ho, Employment Law Center

  Employment Discrimination
PL-541/44.2. FCC v. Black Liberation Radio, Mbanno Kantako (ND IL, Springfield 1989)

11/23/86: Def-Kantako began broadcasting from Hay Homes (public housing) on 1-watt radio station using $600 equipment. 1989: Def broadcast coverage of police abuse incidents. 4/5/89: Fed'l Communications Commn (FCC) ordered Def to stop broadcasting: Def had no license, FCC has no licensing provisions for FM station under 100 watts. 4/17/89: Def resumed broadcasting; FCC fined Def $750. Def appeared in DC, refused to participate in h'gs until atty appointed.

• DJ refused Def atty: FCC citation civil, not criminal penalty. Def refused to pay fine, continued broadcasting; preparing brief re unconstitutional nature of financial qualification for broadcasting (excluding those who cannot afford 100-watt equipment); right to communicate under 1st Amdt, UDHR Art 19, related int'l law principles, 14th Amdt. 3/90: DJ: ordered station shut down. Def continued to broadcast, sometimes 7 days/24 hrs, began broadcasting police communications. 5/2-3/92: responding to verdict (PL-851/28.20), Def broadcast police positions during Springfield uprising.

Comm for Democratic Communications, 90 New Montgomery, 15th Fl, 94105; Andrew Scoble, 1 Embarcadero Center, 8th Fl, 94111; both San Francisco, CA; Marjorie Heins, ACLU, 132 W 43d, NY, NY 10036

See PL-717/44.2

  Freedom of Media
PL-717/44.2. Re Napoleon Williams (Fed'l Communications Commn); 253 The Nation No 5 (8/12-19/91)

8/90: Resp began broadcasting "Liberation Radio", less than 1-watt, unlicensed station for black audience in Decatur, IL. FCC fined Resp $17,500: no broadcasting license. Resp refused to pay: Communication Act §308(B) (47 USC §151) violates 1st, 14th Amdts.

• Pending.

Liberation Radio, 756 S Wise, Decatur, IL 62522

See Black Liberation Radio, PL-541/44.2

  Free Speech
PL-862/44.2. Beno v. Shalala, Secy, Health & Human Services (ND CA 1993)

U.S. Dept of Health & Human Services (HHS) granted CA waiver on restrictions applicable to cutting benefits for Aid to Families w/

- 44.3 -
Dependent Children (AFDC). AFDC recipients sued: discrimination against persons w/ disabilities.

• Pending.

Disability Rights, Education & Defense Fund, 2212 6th St, Berkeley, CA 94710

  Disabled Rights
PL-332a/44.3. William Wardlaw v. Pickett (DoJ); (DC DC Civ 89-1557)

Pl sued U.S., 2 U.S. Marshals for $1 million for 6/7/88 beating (see PL-332/20.4): assault, battery, false imprisonment; violation of constitutional rights, due process (4th, 5th, 9th Amdts).

• 12/5/90: Gosch, DJ: dism'd constitutional claims; allowed tort claims for assault, battery, imprisonment. Pending.

William Wardlaw, pro se

See PL-332/20.4

  Police Misconduct
PL-671/44.3. Ferguson v. Reno; Ferguson v. FBI; In re Ferguson v. New York State Div of Parole 722 FSupp 1137 (SD NY 1989); 729 FSupp 1082, 752 FSupp 634 (1990); 762 FSupp 815 (1991); (SD NY Civ 5071, 1992); 957 F2d 1059 (2d Cir 1992); (ED NY 92 Civ 4754); (NY Cty Sup Ct 93106-605, 1993)

6/67: NY arrested Pl-asst public school principal, prominent black activist: conspiracy to murder. Pl exhausted appeals, went into exile. 1989: Pl returned to U.S. to prove innocence: framed by FBI, NYCPD. Pl moved to get NYCPD, FBI files. 1990: NYCPD voluntarily released information including that Pl was present at Malcolm X's assassination. Pl sued FBI under FOIA: refusal to release files.

• 10/24/89: Patterson, DJ, ordered FBI to expedite release of records. 12/18/90: Patterson, DJ, denied FBI summary judgment: failure to show investigation of Pl conducted for legitimate law enforcement purpose, that information was properly withheld. 3/9/92: Pratt, CJ: dism'd FBI appeal in part, rev'd in part. 4/22/92: DC ordered FBI to disclose documents containing exculpatory evidence: main witness, NYCPD officer lied under oath, prosecution knew testimony false. 1993: 2d Cir vacated DC order, dism'd w/ prejudice, remanded to reconsider in light of 113 SCt 2014 (1993) (FBI could not automatically withhold information allegedly provided by confidential informants). Pending. 7/92: Pl filed habeas petition to vacate 1968 conviction: prosecution knowingly offered false testimony, withheld exculpatory evidence. 1991: Granted Pl work release on 7-day basis. 7/92: Modified work release arrangement: must spend 2 nights/week in prison: unlikely to remain at liberty, release "incompatible with welfare of society." Ct granted Pl's application to annul parole bd's decision.

Joan P Gibbs, Suzanne Shende, CCR, 666 Broadway, 7th Fl, NY, NY 10012; on and Lennox S Hinds, 116 111th St, NY, NY 10026; Jonathan Lubell, 750 Lexington Ave, NY, NY 10022; on Jill Elijah, CUNY Law School

  Freedom of Information/Habeas Corpus
- 44.4 -
PL-659/44.4. Horne v. FBI (FOIA App 90-0398)

1990: Pl-historian, Black Studies Dept chair, U of CA-Santa Barbara, discovered 300,000+ pages of FBI docs re Black Panther Party. Pl requested copies of docs through FOIA, sought waiver of copying costs for nonprofit research. FBI refused to waive $30,000 costs.

• 6/91: FBI slightly reduced costs, informed Pl of 700,000 pages. Pl obtained partial fee waiver; remainder pending.

Frank E Deale, Ralph Shapiro, CCR, 666 Broadway, NY, NY 10012

  Freedom of Information
PL-67/44.4. Albinu Lemus-Meloro v. INS (9th Cir No 83-7169)

1981: After threats against his life, unable to practice religion openly, brother murdered, Pet fled El Salvador, came to U.S. INS had Pet arrested; Pet signed voluntary departure. 6/1/81: Pet returned to El Salvador. 10/81: Pet reentered U.S.

• 3/30/82: At deportation h'g, INS denied withholding of deportation based on UN Protocol, (PL-356/50.2). H'g postponed so Pet could apply for asylum (INA §208, 8 USC §1158), withholding deportation (INA §243(h), 8 USC §1253(h)). 8/3/82: H'g concluded; ALJ ruled against Pet. 1/13/83: BIA aff'd. 1983-84: Pet's atty failed to file timely pleadings in 9th Cir, barred from practicing before 9th Cir for 2 yrs. 10/19/84: Pet's new counsel filed lengthy appeal.

James F Smith, C Mary Okoye, Margo Cowan

  Asylum
PL-241/44.4. In re Barakat, Khader Hamide, Michel Shehadeh (Los Angeles 8; Palestinian 8)

(BIA A19262560, A30660528); 256 The Nation 367 (3/22/93)

1/26-2/15/87: INS, Los Angeles police arrested 7 Palestinians, Kenyan wife of one in Popular Front for Liberation of Palestine (PF-LP): deportability for violating McCarran-Walter Act by advocating "world communism." David Lehrer-Anti-Defamation League (ADL) regional dir supplied information to FBI (see PL-909/29.5).

• 2/17/87: Daniel, ALJ: denied INS motion to present evidence in camera, released 8 Defs. 3/22/87: FBI revealed intensive 3-yr investigation of Arab-American community. 3/25/87: Defs' attys reported pattern of suspicious burglaries, theft of defense files. 4/23/87: INS dropped McCarran Act charges against 6 Defs, pursued deportation proceedings for visa violations. 4/28/87: INS changed charges against 2 permanent residents to "being affiliated with group which advocates destruction of property." 5/12/87: Defs filed motion to dismiss: lack of due process, selective prosecution, failure of INS official to appear as ordered. ALJ: dism'd all charges. 5/13/87: INS reinstated identical charges. 7/23/87: ALJ: certified all issues for appeal to BIA. 1990: Cong repealed much of McCarran-Walter Act, added "engag[ing] in terrorist activity" as deportable offense, 8 USC §1251 (a)(4)(B). INS continued proceedings against 2 Defs under 1990 law: fund raising for PFLP-terrorist org. U.S. State Dept official: any group opposed to "peace process" by definition "terrorist".

- 44.5 -
Israeli Gov't declassified/sent top-secret docs to LA h'g room. Defs requested ALJ recuse himself: ADL official. 3/93: Einhorn, ALJ: refused Defs' request. Pending h'g 11/93.

Marc Van Der Hout, 3689 18th, San Francisco, CA 94110; David Cole, CCR, 666 Broadway, 7th Fl, NY, NY 10012; ACLU-S CA, 633 Shatto Pl, Los Angeles, CA

See PL-242/43.12; PL-318/43.14; PL-909/29.5

  Palestinians
PL-620a/44.5. In Re María Teresa Tula (INS A28-430-815, Washington, DC 4/3/87)

1984: Pet joined Comadres, El Salvadoran org for women advocates for "disappeared," arrested, family members persecuted. 1984: U.S. Passport Office denied visa to Pet to enter to receive Robert F Kennedy award: Comadres had communist connections. 1984-86: Salvadorans arrested, raped, tortured, beat Pet; assassinated husband. 1987: Pet applied for asylum in U.S.

• 1988: INS denied Pet asylum: Comadres collaborated in "terrorist acts." 1991: INS granted Pet temporary protected status to 6/30/92, extended to 6/30/93. Pet applied for reevaluation of asylum request: PL-122/41.12. Pending.

Sara E Ríos, Michael Ratner, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Claudia Slovinsky, Judy Rabinovitz, Diane George

See PL-122/41.12; PL-620/40.3

  Asylum
PL-457/44.5. María Elena Campos v. Nail, Thornburgh (INS); 940 F2d 495 (9th Cir 1991); (DC AZ #CV-85-00964, 1992)

1980-85: INS backlog due to civil wars/repression in El Salvador, Guatemala; Pls-asylum seekers relocated before h'g. Def-Phoenix, AZ ALJ had blanket policy: no change of venue unless Pl had established U.S. residence prior to arrest; ordered many deportations in absentia. 1985: Pls brought class action: denial of 5th Amdt due process.

• 6/89: Broomfield, DJ: Def's policy "constitutes ... personal pattern and practice of bias"; but dism'd: lack of subject matter jurisdiction (INA §106, 8 USC §1105(a), 28 USC §2342). 7/30, 11/5/91: 9th Cir rev'd, Canby, CJ: DC has jurisdiction: §1105(a) does not apply to pattern/practice suit; 9th Cir twice rev'd Def in individual cases of due process denial. On remand, Broomfield, DJ, reiterated: Def denied due process, statutory rights (8 USC §§1158, 1253); nullified all deportation orders against Pls. Def appealed; pending.

Anne Pilsbury, Central American Legal Assistance, Brooklyn, NY

See PL-319/41.12; PL-26/41.10; PL-558/41.9, PL-875/42.8

  Asylum
PL-661/44.5. In re Marcelo Tenorio (INS A72-093-558 1993-SF)

7/93: Gang of anti-gays in Rio brutally attacked Pet-Brazilian; told Pet he would be killed if seen again. Pet fled to U.S., applied for

- 44.6 -
asylum. INS denied application.

• ALJ: Pet qualified for asylum: homosexuals are members of particular social group w/ immutable characteristics. 8/93: INS appealed. Pending.

Tania M Alvarez, 350 Sansome, Ste 610, San Francisco, CA 94104

  Asylum
PL-789/44.6. Michael Lebron v. Nat'l Railroad Passenger Corp (Amtrak) 811 FSupp 993 (SD NY 1993); (2d Cir, 93-7127, 1993)

Pl-public artist contracted w/ Def to display "The Spectacular" (Coors beer ad parody revealing right-wing causes Coors family supported) in Penn Station, told Def ad political in nature. Def saw, rejected ad: political. Pl sued: violation of 1st Amdt. Def claimed: not gov't agency, not constrained by 1st Amdt.

• 1993: Leval, DJ: Def was gov't actor under symbolic relationship theory; policy against "political" ads unconstitutionally vague, overbroad. Def's appeal pending.

David Cole, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Bruce Rich, Gloria Phares, Robin Silverman, Bernadette M Ezring, Jonathan Bloom, 767 5th Ave, NY, NY 10153

  Freedom of Speech
PL-132/44.6. Bullfrog Films v. Wick (USIA); 646 FSupp 492 (CD CA 1986); 847 F2d 502 (9th Cir 1988); 959 F2d 778, 782 (1992)

12/5/85: Def-U.S. Information Agency (USIA) denied "certificates of educational character" to filmmakers of documentaries on nuclear war, environmental problems, Central America: certification allows exemption from import duties, other benefits. Filmmakers sued: USIA regs forbidding certification of films containing "propaganda", attacking U.S., other countries violate 1949 Beirut Agreement to promote worldwide communication (17 UST 1579, TIAS 6116, 197 UNTS 3).

• 10/24/86: Tashima, DJ, granted Pls summary judgment: regs defining "educational, scientific or cultural" (22 CFR 502.6(a)(3)) facially invalid; permanently enjoined USIA from enforcing regs. 5/17/88: 9th Cir aff'd: regs unconstitutionally vague; content-based certification violates 1st Amdt. 9th Cir denied reh'g. USIA redrafted regs. 5/88: Tashima, DJ: new regs unconstitutional; USIA to give Pl educational certificates. 11/10/88: 9th Cir granted stay. 10/28/91: Pres signed Foreign Relations Authorization Act (19 USC §2051) requiring USIA to grant educational certificates on "viewpoint neutral basis." 3/12/92: 9th Cir dism'd appeal, remanded, Fletcher, CJ: DC to review new Act (content being presented in primarily factual, demonstrative manner), vacate 1988 judgments, order USIA to reconsider Pl's films, grant provisional certification pending reconsideration; granted Pl prejudgment, denied post-judgment atty fees. Pending.

David Cole, Michael Ratner, Margaret Ratner, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Ben Margolis, 3550 Wilshire Blvd #1200, Los Angeles, CA 90010

  Censorship
- 45.1 -
2. STATE OR LOCAL
a. CASES WON AT ADMINISTRATIVE LEVEL

PL-922/45.1. Re Mortgage Redlining (CA Office of Comptroller of Currency)

1991: Nat'l statistics revealed nearly half of U.S. banks have never received a loan application from an African-American; of those received, blacks twice as likely as whites to be rejected for home mortgages. Fall/91: CA bank regulators issued performance ratings under Community Reinvestment Act: amount/percentage of credit extended to low income/minority communities. 2/92: CA Comptroller of Currency's office began investigation of banks' lending practices, possible redlining.

• 5/13/92: In wake of Los Angeles riot, U.S. Treasury Sec'y Brady, CA regulators issued joint statement encouraging lenders to help in rebuilding effort, promising "positive consideration" from regulators in return. Legislators suggested measures requiring banks to increase: minority membership on bds of dirs, home/business loans to minorities/women.

  Bank Loan Discrimination
PL-56/45.1. Lockheed Permit Application (Santa Cruz Cty, CA Bd of Supervisors)

1978: Pet-Lockheed Missiles Space Co sought permit to build testing, manufacturing facility for Trident II nuclear missile components. 1980: Bd of Supervisors approved permit. 1980: Voters rejected (60%) initiative petition to overrule Bd.

• 1/8/85: After Planning Bd decision, Bd of Supervisors held h'g on grading Pet's permit application; opponents argued building would: require destruction of trees; violate UN Charter, Art 2(4), Nuremberg Principles, CA Const Art I §§1, 5, 24. Bd denied application (3-2).

  Nuclear Weapons Permit
PL-214/45.1. Re United Technologies Corp Use Permit (Merced Cty, CA Bd of Supervisors Planning Comm)

8/86: Merced Interfaith Center for Peace & Justice attempted to block United Technologies Corp from building $250 million rocket fuel plant. 9/86: After hearing evidence presented by Center, others that plant posed safety, environmental problems, Planning Comm granted conditional use permit. Significant public opposition led Supervisors to refer issue back to Planning Comm, which required additional EIS, primarily of potential water pollution.

• 7/87: Property owners declined to renew United Technologies' option to purchase proposed plant site; United Technologies announced it no longer intended to pursue project.

  Nuclear Weapons Permit
PL-155/45.1. Anti-ROTC Campus Protesters v. U of CA-Berkeley (U of CA-Berkeley Comm on Student Conduct)

8/27/85: U.S. Army Reserve Officers' Training Corps (ROTC) held "orientation discussions". Students who opposed ROTC on campus, U.S. military activity in Central America attended meeting, prematurely

- 45.2 -
terminated due to disruption. U charged 5 students: violating Berkeley Campus U Policies §420(5), "obstructing or disruption of teaching"; §420(9), "participation in disturbance of peace".

• 2/25/86: U Comm (5 faculty, 4 students) viewed tapes of meeting, heard testimony, recommended against sanctions (9-0): insufficient evidence presented to prove students' conduct violated U regs.

Daniel Siegel, 1025 2d Ave #406, Oakland, CA 94606; Osha Neumann; Rita Himes pro se

  Anti-Military
PL-933/45.2. Arizona Corporal Punishment Ban (AZ Bd of Education 1991)

Fall/91: C Diane Bishop-AZ Supt of Public Instruction, following lead of 30 local school dists, proposed new regs: banning corporal punishment on students under 16. School Bds Assn opposed regs: local control. Proponents declared "local control" sham: not used for open enrollment, curriculum, testing. AZ Atty Gen'l: regs legal.

• 10/28/91: AZ Bd of Educ approved (7-1) regs, making AZ 23rd state to ban corporal punishment.

  Children's Rights
PL-803/45.2. Laurie Quiggle v. Erie, PA School Dist (Erie Cty Dist Ct 1991); 12 The Objector No 1 (1-2/92)

1986: Pl proposed resolution: peace activists have equal access w/ military to schools; Def voted for alternative res permitting only "bona fide employees" access to schools. 1987: Pl-ACLU atty sued.

• DJ denied relief, threatened Pl w/ fines: complaint "frivolous, waste of court's time." 1989-90: Case pending. 4/91: Pl, 5 others protested Desert Storm War outside recruiting office; media covered incident; weeks later, ct set trial date. 4/25/93: Attys met privately w/ J: Def settled, signed agreement.

Laurie Quiggle, Peace Project, 860 E 6th St, Erie, PA 16507; ACLU

  Freedom of Speech
PL-860/45.2. Lacayo v. Honig, CA Supt of Public Instruction (ED CA 1993)

Segregated Nevada Cty school children w/ severe disabilities filed class action linking abuse issues: violating children's rights to "free appropriate education," discrimination under Disabilities Education Act, Rehabilitation Act §504 (1973).

• Local school dists, CA Educ Dept settled: mistreatment, abuse complaints investigated by Educ Dept; behavior intervention regs prohibit negative/aversive behavior management techniques; statewide monitoring of Disabilities Education Act.

Disability Rights, Education & Defense Fund, 2212 6th, Berkeley, CA 94710; Heller, Ehrman, 333 Bush St, San Francisco, CA 94104

  Education Discrimination
PL-357/45.2. Roy Woodruff v. University of California (U of CA Personnel Grievance Comm 1987)

1982: Pet-Defense Systems Associate Dir in charge of SDI "Excalibur" X-ray laser research at Lawrence Livermore Nat'l Lab. 10/29/85: Pet

- 45.3 -
resigned: conflict w/ Edward Teller-Lab co-founder, Associate Dir Emeritus, Lowell Wood-Lab physicist, over "overly optimistic, technically incorrect statements regarding this research to the nation's highest policy makers." 4/87: Pet filed grievance w/ U. 7/14/88: Rep Brown (D-CA) released Gen'l Accounting Office (GAO) report: verified some of Pet's claims; no general agreement among Lab scientists of statements. Lab appointed Pet to Div Z: intelligence re weapons activity in Soviet Union. Pet filed grievance w/ U: isolated, demoted.

• U Pres Gardiner decided for Pet; Lab must provide better job. Lab transferred Pet to study verification of Soviet nuclear tests, review studies of treaties. Pet dissatisfied; left Livermore; took similar position at Los Alamos: atmosphere more colloquial. 3/3/89: House Energy & Commerce Comm's Oversight & Investigations Subcomm began investigating charges: Lab greatly exaggerated Star Wars research to sell program to Pres Reagan, drug abuse among 8,000 employees.

  Star Wars
PL-251/45.3. In re Richard Warwick (Commr, WA Employment Security Dept #7-02612, 1987)

1/6/87: Pro-peace worker resigned on ethical grounds from Puget Sound Naval Shipyard; applied for unemployment compensation. Shipyard contested claim: claimant left voluntarily w/out good cause.

• ALJ: claimant not entitled to benefits. 9/30/87: On appeal, Commr rev'd: voluntary quit for good cause does not disqualify employees from unemployment compensation (RCW 50.20.050(3)).

M Lynn Greiner

  Anti-Military
PL-853/45.3. Matthews v. Cove, California (ND CA C-90-3620-EFL)

1991: Pl obtained statistics: 2/3 of inner-city black children have toxic levels of lead in bloodstream. Pl sued state to screen poor children for lead, testing to all 1 yr-olds.

• State settled.

NAACP Legal Defense & Education Fund, Inc, 99 Hudson St Ste 1600, NY, NY 10013-2897

  Children
PL-822/45.3. Minnesota by Beaulieu, Commr, Dept of Human Rights v. Clausen (MN Dept of Human Rights); 491 NW2d 662 (MN Ct of App 1992)

11/28/90: Pl filed charge w/ Dept of Human Rights: discriminatory practice in refusing to provide dental services to HIV-positive individual (MN Stat §363.03(3), 1990).

• 11/18/91: Beck, ALJ: Def violated §363.03(3); HIV-positive patient "disabled" w/in meaning of MN Human Rights Act; Def's office was public place; Pl proved prima facie case of discrimination; Def's reasons for refusing treatment were pretexts for discrimination. 10/20/92: MN Ct of App, Klaphke, J: aff'd. 12/15/92: MN Sup Ct denied review.

Hubert H Humphrey III, Atty Gen'l, Erica Jacobsen, 1100 Bremer Tower, 7th Place & Minnesota St, St Paul, MN 55101

  HIV Discrimination
- 45.4 -
PL-907/45.4. Robert Cannon v. Walnut Creek Manor; Walnut Creek Manor v. CA Fair Employment & Housing Commn 267 CA Rptr 645 (CA 1st DCA 1990); 284 CA Rptr 718 (CA Sup Ct 1991)

11/79: Def put Pl-divorced black prospective tenant on waiting list. Def told Pl every 6 mths: no vacancy. 5/82: Pl discovered Def had rented to 35 non-blacks since Pl's application. Pl filed complaint w/ CA Fair Employment & Housing Commn: discrimination on basis of race, marital status. 1983: ALJ awarded Pl $1,500 compensatory, $650 punitive damages. Commn rev'd ALJ, awarded special damages: cost of rent, utilities; $162 atty fees, $50,000 for emotional distress, $40,000 punitive damages; Def to offer Pl next available unit under FEHA (CA Gov't C §12900); owner, manager jointly/severally liable for punitives; Manor to post notices, conduct employee training sessions re housing discrimination law.

• 1990: 1st DCA aff'd in part, rev'd in part: §12987 is valid in authorizing Commn to award quantifiable out-of-pocket restitutive damages; invalid in authorizing award of nonquantifiable general compensatory damages for emotional distress. 8/21/91: CA Sup Ct aff'd in part, rev'd in part, Panelli, J: punitive damages limited to $1,000, compensatory damages limited to $3,000. Kennard, J (Broussard, J) diss: CA Const judicial powers clause does not prevent Commn from awarding damages for emotional distress; legislature authorized Commn to award punitive damages up to $1,000 for each separate act of housing discrimination.

Daniel E Lundgren, CA Atty Gen'l, Louis Verdugo Jr, Deputy Atty Gen'l, 300 S Spring St Ste 5212, Los Angeles, CA 90013

  Housing Discrimination
PL-699/45.4. Hai Nguyen v. San Francisco Housing Authority (ND CA #C931127-NHO 1993)

1989: Pl-Vietnamese family moved to Dakota St after requesting safe habitat from Def-Housing Authority. 9/20/92: Pl's 18 yr old son fatally shot in front of Def's Potrero Terrace unit. 1992: 7 of 32 reported burglaries in Def's Sunnydale committed against Asian families (Asians comprise only 3% of project's population). 2/93: Def severed negotiations intended to reduce anti-Asian violence in San Francisco housing projects: Potrero Terrace, Sunnydale, Westbrook, Hunters Point, Hunters View, Alice Griffith. 3/29/93: Pls sued on behalf of 100 Vietnamese, Cambodian families: "wanton disregard" for safety of Asian residents; Def neglected complaints of harassment, beatings, racial hatred, murders.

• 6/93: Def, Pl reached partial settlement; final award pending.

Gen Fujioka, Doreena Wong, Asian Law Caucus, 468 Bush St, 3d Fl, 94108; Jeffrey Woo, 1 Market Plaza, 94105; all San Francisco

  Hate Crimes
PL-179/45.4. Nuclear Free Berkeley Act (Berkeley Peace & Justice Commn); (Berkeley City Council); (NRC)

11/4/86: Berkeley voters passed initiative (2-1): Nuclear Free Berkeley Act: prohibiting nuclear weapons work in city w/in 2 yrs; peace

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conversion plan by 1988; prohibiting city contracts w/investments in Nuclear Weapons Agents w/out City Council waiver when no alternative; prohibiting nuclear reactors, food irradiation plants; requiring labelling of irradiated food sold in city; posting NFZ signs at city limits. 3/87: Berkeley Commn on Peace & Justice appointed by City Council, School Bd.

• 7/87: City Manager, Commn Chair sent disclosure forms to U of CA Regents, U of CA-Berkeley, 4 private research cos. U replied: City w/out jurisdiction under CA Const; 7 cos said not agents or gone out of business. 1/88: Commn began implementing selective purchasing requirements w/ staff, employee unions, community using Nuclear Free America database. U announced closure of nuclear (Etcheverry) reactor used in non-weapons research. 3/88-93: Commn proposed/Council adopted City Statements of Investment Policy/Guidelines requiring minimum purchases of U.S. Treasury bills: proceeds used to purchase nuclear weapons. 4/88: Commn held public h'g at U on enforcement of Act. 5/88: Commn initiated intervention in NRC decommissioning process, resulting in U negotiating, agreeing to participate in model of community involvement. 5/9/89: Commn presented workshop on responsible investment policy to Council. 1989: Commn recommended/Council adopted res: opposing construction of Livermore incinerator for toxic wastes; favoring shutdown of Rancho Seco Nuclear Reactor; favoring U.S. fully fund UN/UN agencies; declaring 9/17-23/89 Berkeley Peace Week. 1989-93: Council rejected Commn requests to be included in City budget. 9/6/89: School Bd adopted res supporting peace education. 7/17/90: Commn proposed/Council adopted (PL-931/55.2) based on UN Charter Arts 55, 56. 1/15/91: Council adopted Commn proposal declaring City refuge for Cos. 2/4/91: Commn proposed/Council adopted res to oppose draft, illegal acts, goals in Gulf War. Commn proposed/Council adopted res defending civil rights of Arab-Americans. 1993: Council adopted Commn proposal supporting (PL-97/2.2, PL-932/45.5), requesting city commns send reports on their enforcement of ICCPR to U.S. State Dept. Work continuing.

Ann Fagan Ginger, PO Box 673, Berkeley, CA 94701

  Socially-Responsible Cities
PL-932/45.5. Berkeley Resolution on ICCPR (Berkeley, CA City Council Res No 56,919)

1977: Pres Carter signed (see PL-97/2.2). 1992: U.S. Sen ratified. Berkeley Peace & Justice Commn proposed resolution endorsing ICCPR, committing city to aid reporting, enforcement.

• Spring/93: City Council cited 1990 (PL-931/55.2), passed res. 6/93: Berkeley Labor Commn, Commn on Status of Women prepared reports under ICCPR for submission to U.S. State Dept 1st Report to UN Human Rights Comm.

  Human Rights Cities
PL-216/45.5. Nuclear Free Marin Act (Marin Cty, CA Bd of Supervisors)

NFZ Coalition sponsored initiative prohibiting manufacture of nuclear weapons/components in Cty, banning transportation of radioactive

- 45.6 -
materials over some roadways, creating Marin Peace Commn.

• Voters passed initiative (60%). 11/4/86: Coalition elected 3 of 5 Supervisors. 2/87: Cty successfully divested $150 million portfolio w/ nuclear weapons contractors: primarily Gen'l Electric, Gen'l Motors, Ford, Westinghouse. 12/87: Supervisors (3-2) granted Commn power to oversee Cty purchases, impose boycott on products from cos linked to nuclear weapons industry. Nuclear weapons contractors attended Commn meetings. Supervisors publicized: Commn bad for local business. 8/17/88: Supervisors (3 to 2) stripped Commn of powers; 4 Commn members resigned in protest. Supervisors appointed new Commn members from business community. Work continuing.

Brady Bevis, 8 Commercial Blvd Ste D, Novato, CA 94947

  Nuclear Free Zone
PL-461/45.6. Dolores Huerta v. San Francisco; In re Francis Achim (SF Office of Citizen Complaints 1988); (SF Police Commn 1991)

9/14/88: Pl-vice pres/co-founder, United Farm Workers, attended demonstration outside hotel where Vice Pres Bush spoke. Def-Police Officer clubbed Pl, broke 2 ribs, ruptured spleen. Police Dept, criminal grand jury, FBI, Office of Citizen Complaints conducted 10 investigations. Pl filed $15 million claim against city: police brutality.

• 11/88: Office of Citizen Complaints: Def used "excessive force." Police Chief Jordan refused to file charges, hold disciplinary h'g. 1/23/91: SF Police Commn approved $825,000 settlement reached by Pl, city.

Diana Lyons

  Police Misconduct
PL-759/45.6. New York City v. Finkleman; New York City v. Millies (Transit Authority Bd); (Bronx Cty Sup Ct Pt 3, #18489/90)

1990: NYC launched campaign: purge subways of homeless, panhandlers; prohibit sale, distribution of political literature on trains. Transit Authority police in disguise taunted, arrested Def-Finkleman: selling political literature on train and Def-Millies: refusing to exit train after causing delay. 3/90: Defs challenged penalties before Transit Authority Bd (TAB): violated 1st Amdt, NY Const free speech provision. TAB revoked Millies' fine: no clear, convincing evidence of refusal to leave; upheld Finkleman's fine. Finkleman filed Art 78 proceeding; TAB moved to have proceeding declared moot: TAB J had no legal authority to impose fines.

• 7/93: NY Sup Ct: issue moot.

Frank E Deale, Ellen Yaroshefsky, CCR, 666 Broadway, 7th Fl, NY, NY 10012

  Freedom of Speech
PL-829/45.6. Mitja Che Baumhackl v. Berkeley Police Dept (Berkeley Police Review Commn, 12/12/91)

Def arrested Pl carrying protest banner toward People's Park: disturbing peace (CA Pen C §415). Def dropped charges. 12/12/91: Pl sued 4 police officers, filed complaint w/ Berkeley Police Review Commn: improper police procedure/confiscation of property.

• 12/12/91: Commr Scheie: Pl had absolute 1st Amdt right, despite

- 45.7 -
offensive, forceful language of banner; settlement: $18,000 damages, atty fees in exchange for dismissal of Pl's civil rights suit.

David Beauvais, 1840 Woolsey St, Berkeley, CA 94703; Mitja Che Baumhackl, 75 3rd Ave #2714, NY, NY 10003

  Freedom of Speech
PL-921/45.7. Georgia v. Samuel Worcester, Elihu Butler (USSC 1832); (Ga Bd of Pardons & Paroles 1992)

1829: Gold discovered in Dahlonega, Cherokee Nation; GA usurped Cherokee sovereignty, seized land. Defs-white missionaries living in Cherokee Nation protested, brought nat'l publicity, embarrassed GA gov't. 1831: GA passed law requiring all whites living on remaining Cherokee land to obtain state license. Defs refused; arrested; tried; convicted of "high misdemeanor"; sentence: 4 yrs hard labor. Defs appealed. 1832: USSC rev'd, Marshall, ChJ: Cherokee sovereign nation, not subject to Ga laws; land seizure, residence license unconstitutional; ordered GA release Defs. GA refused. Pres Jackson: "They have their decision, now let them enforce it." Defs served 16 mths on chain gang, released; joined 17,000 Cherokees in dead of winter on Trail of Tears to Indian Territory, OK during which thousands died of cold, starvation. Defs survived, continued work.

• 1979: GA legislature repealed Cherokee laws. 1992: GA Bd of Pardons and Paroles acted "to remove a stain on the history of criminal justice in Georgia": acknowledged GA usurped land, ignored USSC, pardoned Defs.

GA Rep Bill Dover, Chief Exec, GA Tribe of Eastern Cherokee

  Political Prisoners/Native American Sovereignty
PL-707/45.7. Reyes v. Dinuba, CA (ED CA CV-F-168 REC, 1993)

1991: Pls filed class action against Def-city challenging at-large election system; Def's population 60.4% Latino, only 5 Latinos have held political office since early 1900s, none currently hold office.

• 3/18/93: Coyle, DJ: denied Def's summary judgment motion, ordered parties to prepare for trial on whether Def was violating Voting Rights Act, 42 USC §1973. 5/93: Parties settled: Def to operate future elections under 5-district plan w/ 3 of 5 districts having Latino voter majority. Pls moved for atty fees. 6/93: Parties settled atty fees.

Robert Rubin, Lawyers Comm for Civil Rights, 301 Mission St Ste 400, San Francisco, CA 94105; Barbara Phillips

  Elections
- 46.1 -
b. CASES WON IN COURT

PL-698/46.1. Adalberto Buenrostro v. Washington State Apple Advertising Commn (Spokane City Super Ct #89-2-030874, 1992)

7-9/87: Defs arranged for Spanish radio ads in CA, TX, AZ, NM, Mexico; solicited migrant farmworkers for 1987 apple harvest; Defs purported to pay well, provide free help w/ immigration for 45,000 needed farmworkers. Pls moved to WA, no jobs available; Pls left homeless, w/out funds, food, means to return home. 9/30/87: Pls sued: Defs provided false, misleading information violating: Farm Labor Contractors Act (RCW 19.30.120(2)); Migrant, Seasonal, Agricultural Worker Protection Act (29 USC §1821(f)); Consumer Protection Act (RCW 19.86.020); Apple Advertising Commn Act (RCW 15.24.100, 15.24.900(1)).

• 4/20/92: Clark, J: approved largest migrant farmworkers settlement award in WA history; $617,500 to compensate 401 class members, 201 family members who suffered from ads: lost wages, work search, expenses, homelessness, inadequate food, mental distress for being stranded in WA.

Paul Stritmatter, Stritmatter, Kessler & McCauly, 407 Eighth St, Hoquiam, WA 98550-3692; Daniel G Ford, Rebecca Smith, Evergreen Legal Services, 101 Yesler Way Ste 300, 98104; Mary Alice Theiler, Theiler, Douglas, Drachler & McKee, 1613 Smith Tower, 506 Second Ave, 98104; all Seattle, WA

  False Advertising
PL-68/46.1. Developmental Disabilities Area Board 10 v. California (Los Angeles Super Ct No C50040)

Pl sued to allow all medically needy children, regardless of immigrant status, to obtain benefits provided by CA Children's Services (CCS).

• 1/30/85: Super Ct J: any information acquired by CCS re child's/parents'/guardians' immigration status will be kept in strictest confidence in accordance w/ law; CCS must notify any person denied CCS services because they or parents/guardians failed to apply for Medi-Cal that they may be eligible for CCS treatment, should reapply to CCS.

Carlos Holguín; Peter A Schey, Center for Human Rights & Constitutional Law, 256 S Occidental Blvd, Los Angeles, CA 90057; Margaret L Popkin, Bradley S Phillips, Joseph D Lee, Marilyn Holle

  Immigrant Children
PL-818/46.1. Francisco Rodríguez-Méndez v. Anderson, CA Dept of Social Services (San Francisco Super Ct #948348, 1993)

4/92: CA Dept of Social Services (DSS) adopted new policy: recommended dismissal of adoption petitions for parties w/ "unresolved" immigration status; refused to continue home study in these cases. 12/30/92: Pl's sued: policy violated APA, fed'l, state adoption stats, supremacy clause, due process, equal protection.

• 2/9/93: Pollack, J: DSS policy inconsistent w/ provisions of child's best interest; policy prevented immigrants from adopting unlawfully,

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based upon immigrant status; enjoined DSS from enforcing, implementing new policy; ordered DSS to notify former Pets of changes in policy. 4/2/93: DSS sent memo ordering all local offices to comply w/ ct order.

Angela M Bean, Nervo & Bean, 235 Montgomery St Ste 950, 94104; Alan Schlosser, ACLU-N CA, 1663 Mission St Ste 460, 94103; both San Francisco, CA; Rebecca Chiao, Nat'l Immigration Law Center, 1636 W 8th St, 90017; Paul Hoffman, ACLU-S CA, 1616 Beverly Blvd, 90026; Pamela Mohr, Alliance for Children's Rights, 3780 Wilshire Blvd Ste 720, 90010; all Los Angeles, CA

  Immigrant Children
PL-613/46.2. Pauley v. Kelly (WV Public Schools); (Kanawha Cty Cir Ct); 255 SE2d 859 (WV Sup Ct of App 1979)

Pls-parents of 5 children in Lincoln Cty public schools filed class action on behalf of Cty public school students: public school financing system violated WV Const, 14th Amdt equal protection by failing to provide equal, quality education in property-poor Ctys. Defs-State Treasurer, Auditor, Bd of Educ, Supt of Schools filed for dismissal.

• Cir Ct, Smith, J: Cty public schools: facilities, curricula, services inferior to those in Ctys w/ higher property wealth; fail to meet WV standards; physical plant inadequacies constitute potential threat to health, welfare of students; success, graduation rates much lower than wealthier Ctys; special education programs fall below statutory standard (WV C Chap 18, Art 20 §1), strong positive correlation between education expenditures, success rate in WV schools; poorer Ctys offer lower quality education; state/fed'l funds do not eliminate disparity; dism'd: no cause of action: Pls did not prove poor schools resulted from financing system as alleged. WV Sup Ct rev'd, remanded, Harshberger, J: education fundamental constitutional right in WV; discrimination in educational financing cannot stand.

Daniel F Hedges, Charleston, WV; Peter J Nickles, Paul A Zevnik, Covington & Burling, 1201 Pennsylvania Ave NW, 20044; Richard S Kohn, David C Long, all Washington, DC

  Equal Education
PL-95/46.2. Fariborz Tayyari v. New Mexico State University 495 FSupp 1365 (DC NM 1980)

Pl-Iranian student challenged motion of Def-Regents to deny admission/readmission of Iranian students after U.S. hostages taken in Iran.

• 8/29/80: Campos, DJ, struck down motion: violated 14th Amdt equal protection, citing 5/19/80 affidavit by David Newsom, Undersec'y for Political Affairs for U.S. State Dept, based on UDHR, (see PL-96/2.1).

  Education Discrimination
PL-50/46.2. Vogt v. School Board of Palm Beach County, FL (SD FL No 81-8217-CIV-JAG)

Since at least 1978, School Bd allowed military recruiters to distribute literature, denied access to draft counsellors/others presenting alternatives to military. Pl sued: Bd's prior restraint policies, practices

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violated due process, constitutionally vague, overbroad.

• Gonzales, DJ: granted Pl summary judgment. 12/8/82: DJ approved settlement: draft counsellors/others presenting alternatives to military granted access.

James K Green; Jack Goldberger, Atterbury, Goldberger & Richardson, 250 Australian Ave S; Robert D Moses, Weiderhold, Moses, Bulfin & Rubin, 515 N Flagler Dr #800, 33401; all W Palm Beach, FL; Michael E Jackson

  Freedom of Speech
PL-168/46.3. Clergy, Laity Concerned v. Chicago Bd of Education 586 FSupp 1408 (ND IL 1984)

4/19/83: Anti-war activists sued under 42 USC §1983: Chicago Bd's practice of allowing military recruiters access to schools while denying access to anti-war activists is unconstitutional.

• 1/20/84: Leighton, DJ: granted Pls summary judgment. 5/17/84: DJ denied Def's motion to set aside summary judgment: when restriction on forum has effect of favoring particular viewpoint, it is subject to strict 1st Amdt scrutiny; Bd failed to show compelling justification for unbalanced restrictions; clergy can express secular viewpoint at school w/out offending establishment clause.

Scott C Colky

See PL-312/46.5

  Military Recruitment
PL-58/46.3. University of California Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Laboratory (Alameda Cty Super Ct); 154 CalApp3d 1157 (CA Ct of App 1985)

2/79: Project requested permission to place literature, give periodic slideshows in Lab visitors center; Lab refused request. 10/79: Project member-Lab employee requested use of auditorium for presentation of program; Lab refused request. Pl sought preliminary injunction to require Lab to allow use of: visitors center to display literature, show slides; auditorium to present programs.

• Bostick, Super Ct J: granted preliminary injunction based on free speech provisions of CA Const (Art I §2). 2/85: Ct of App, White, CJ, aff'd. Project established display at Lab.

Mitchell Zimmerman; Margaret C Crosby, Alan Schlosser, ACLU-N CA, 1663 Mission St, 4th Fl, San Francisco, CA 94103; Amitai Schwartz, Joseph Remcho

  Nuclear Weapons Protest
PL-296/46.3. Elena Manitzas v. University of Texas at Austin (Travis Cty Dist Ct, 299th Jud Dist)

Fall/86: 15 Pls participated in anti-apartheid, pro-divestment demonstration at office of U Pres; arrested: disruptive conduct (TX Education C §428); appearance set for 12/15/86. 11/1/86: U notified Pls of admr disciplinary h'g. Pls sued for injunction to prevent admr action until criminal case completed: right against self-incrimination in 5th Amdt, TX Const Art I §10, U custom in nonpolitical cases to defer admr discipline until criminal case completed; filed affidavits

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of criminal defense attys re custom.

• Clark, J: granted temporary injunction. U dropped proceedings before trial set.

Tom Kolker, Malcolm Greenstein, Brian East

See PL-210/28.20; PL-450/57.1

  Apartheid
PL-175/46.4. U of Utah Students Against Apartheid v. Peterson (DC UT #86-C-O688 A)

2/86: Student group erected anti-apartheid shanty on U campus to urge divestiture of school funds. 7/15/86: U decided to remove shanties. 8/7/86: Students sued U Pres alleging shanties protected 1st Amdt expression. Pls' supplemental trial brief argues decision to remove shanties was content-related restriction, arbitrary, capricious inhibition of free expression. ACLU filed amicus brief.

• 8/29/86: In oral opinion, Anderson, J: issued permanent injunction against U removing shanties, urging U to establish reasonable time, place, manner restrictions.

Brian Barnard, Utah Legal Clinic

  Apartheid
PL-264/46.4. Committee Opposed to Militarism and the Draft v. Grossmont, CA High School District (SD CA #CV-83-0551(I) 1983); (9th Cir #83-6070 1986); (SD CA 1986)

1982: Def-School Dist banned Pl's paid ads concerning draft registration, military service from its 9 school newspapers. Pl sued.

• Schwartz, DJ: denied preliminary injunction. 6/86: 9th Cir rev'd: school dist engaged in viewpoint-based discrimination; military recruitment, Selective Service ads inherently political, controversial; public school students' newspapers are limited public forums protected by 1st, 14th Amdts. Ct rejected DoJ argument that military deserved "preferential access" to high school students. 12/15/86: DJ granted injunction.

Rick Jahnkow, COMD

  Military Recruitment
PL-335/46.4. University of California-Berkeley v. "Shantytown 10" (UC-Berkeley Student Conduct Comm); (Alameda Cty Super Ct)

3/31/86: Demonstrators built shanties on campus to protest U investments in S Africa. 4/1/86: 3 am: U/city police claimed violation of health/safety rules, tore down shanties, asked demonstrators to leave, arrested 150. 4/2: U obtained restraining order against protesters from Super Ct; served order on demonstrators. All criminal charges dropped. 5/6/86: Office of Student Conduct charged 10: endangering health/safety, failure to comply w/ U officials' direction (Campus Regs 420(7), (10)).

• 7/18/86: U of CA Regents voted to divest U of all stock in corps doing business in S Africa. 9/3/86: Faculty/Student Comm on Student Conduct opened public h'g; students claimed 1st Amdt rights, sought discovery of police tapes. 10/17/86: Public h'g began; Comm

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alleged disruption by Defs, attys, crowd; closed h'g. 11/20/86: Closed h'g called, never commenced due to crowd attempting to enter. 1/26/87: Chancellor appointed h'g officer; h'g called; Defs appeared to challenge jurisdiction. 3/17/87: Ramsey, Super Ct J, permanently enjoined proceeding before h'g officer: must be before Comm w/ Defs afforded right to counsel. U appealed. 1988: Defs had graduated; U did not pursue appeal.

Jane Kaplan, 3050 Shattuck Ave, Berkeley, CA 94705; Alan Spear

  Apartheid
PL-252/46.5. S California Federation of Scientists v. Regents, U of CA (Alameda Cty Super Ct #631712-4, 1987)

Fall/87: U of CA Bd of Regents certified EIS for Livermore Nat'l Weapons Lab. 10/21/87: 4 environmental groups, 6 Lab neighbors sued for declaratory relief, mandamus: EIS gave inadequate, dishonest description of hazards.

• Parties settled: UC to draft new EIS for next 5-yr contract cycle, to be renewed 9/92; draft to be released late '91, decision in '92.

Sue Hestor, 870 Market Ste 1121; Zach Cowan, 66 Mint St; both San Francisco, CA; Andrew Lichterman, Michael Veiluva, Western States Legal Foundation, 1440 Broadway Ste 420, Oakland, CA 94612

  Nuclear Weapons Protest
PL-312/46.5. Searcey v. Crim (Atlanta Peace Alliance)

(Atlanta School Bd); 642 FSupp 313 (ND GA 1986); 815 F2d 1389 (11th Cir 1987); 681 FSupp 821 (1988); 692 FSupp 1363 (1988)

1983: Atlanta School Bd signed agreement w/ Pl-Atlanta Peace Alliance: Pl allowed to participate alongside military recruiters in Career Day, inform students of nonmilitary career options. 1983: Bd suspended agreement. 1984: Pl sought injunction requiring Bd to honor agreement: suspension violated 1st Amdt. 1985: U.S. Gov't intervened on behalf of School Bd: "nat'l security".

• 8/3/86: Shoob, DJ: granted Pl summary judgment, issued preliminary injunction. 4/17/87: 11th Cir aff'd, remanded, Kravitch, CJ: policy barring peace activists from Career Day violated 1st Amdt, even if school facilities were non-public forums. 3/4/88: Shoob, DJ: content-based restrictions on participation in Career Day did not serve compelling state interest. DJ granted Pl atty fees.

Ralph Goldberg, 233 Mitchell St SW, Atlanta, GA 30303

See PL-245/25.9

  Military Recruitment
PL-810/46.5. Council for Better Education v. Rose (KY Bd of Educ); 790 SW2d 186 (KY Sup Ct 1989)

6/8/87: Pl-Council sued KY Bd of Educ: system of school financing under KY Gen'l Assembly Acts KRS 160.470, 68.470, 132.010, .020, .023, .690 inadequate, inefficient, violation of KY Const §§1, 3, 183, U.S. Const, 14th Amdt equal protection, due process; sought declaratory judgment, mandamus directing Gov to recommend to Gen'l

- 46.6 -
Assembly enactment of appropriate legislation in compliance w/ constitutional provisions for "equitable, adequate, efficient system of common schools." Defs raised many defenses.

• 5/31/88: Franklin Cir Ct, Corns, J: common school finance system unconstitutional, discriminatory, Gen'l Assembly failed to produce efficient system of common schools. 6/8/89: KY Sup Ct, Stephens, J: Gen'l Assembly failed to provide efficient system of common schools throughout state required by KY Const §183; declined to issue injunction, restraining order, writ of prohibition, mandamus; withheld final decision until Gen'l Assembly regular adjournment in 1990. 1990: Gen'l Assembly passed 1990 Education Reform Act.

Bert T Combs, Debra H Dawahare, 250 W Main St, Lexington, KY 40507; Theodore Lavitt, 1 Ct Sq, Lebanon, KY 40033

  Right to Education
PL-622/46.6. Haitian Refugee Center v. Florida Dept of Education (SD FL 1990)

11/88: FL voters approved English Only Amdt to FL Const: tax-supported programs (including education) to be conducted in English. 1989: Pls representing FL Latinos/Haitians sued: state, by failing to require adequate education, violated 1964 Civil Rights Act Title VI; Elementary School Education Act Chapters 1, 2; Education of the Handicapped Act. 6/90: FL legislature passed law requiring state educational standards for language minority students.

• 8/15/90: Defs, Pls settled: implemented standards to ensure equity; set standards for recruiting, training bilingual teachers, English as second language teachers; guaranteed equal access to special programs; required school dists to submit 3-yr plans for serving language minority students. King, DJ: issued consent order allowing DC to enforce agreement.

Camilo Pérez, Multicultural Education Training and Advocacy, 524 Union St, San Francisco, CA 94133; Spanish-American League Against Discrimination; NAACP

  Bilingual Education
PL-821/46.6. Liebowitz v. Dinkins, Mayor, NYC (NY Cty Sup Ct, App Div, 2d Dept #1375/91)

1991: NYC budget cuts eliminated eye tests, physical exams, immunizations against polio, mumps, measles, diphtheria, rubella, influenza type B for public school children. 4/91: Pl sought injunction to preserve school health programs. NYC requested stay of injunction to dismantle program. Pl opposed stay: thousands of vulnerable children would suffer irreparable harm if programs terminated.

• 7/91: J issued injunction, ordered NYC to reinstate programs.

Joan P Gibbs, CCR, amicus, 666 Broadway, 7th Fl, NY, NY 10012

  Children's Health & Safety
PL-656/46.6. Butt v. Richmond, CA School District (Contra Costa Cty #C-91-01645); 4 CA4th 668 (CA Sup Ct 1992)

1980s: Def-Bd hired innovative Supt to introduce new teachers, curriculum into multi-class, multiracial dist to cut drop-outs, improve teacher/student/parent support of schools. 1990: Supt left. 4/91: Def

- 46.7 -
faced $29 million debt, filed for protection under U.S. bankruptcy laws; announced plan to close schools 6 weeks early. Pl-parents of students sued Defs — Dist, State, State Supt of Public Instruction, State Controller — for injunction to keep schools open: denial of equal protection, violation of CA Const, 5 CA3d 564. Oakland School Dist, teachers unions, Meiklejohn Inst appeared as amici, argued right to education under CA Const Art IX §5; 24th Amdt U.S. Const; UN Charter Arts 55, 56; discrimination based on economic status of parents/Dist comparable to forbidden racial discrimination in education.

• 4/29/91: After h'g, James, J: granted Pls' motion for preliminary injunction. 5/2/91: James, J, ordered Defs to find state funds to keep schools open last 6 weeks: public school system function of state, CA Const Art IX §14; all students have fundamental right to equal public education, Supt of Public Instruction has authority to relieve Def of duties/power, appoint trustee, develop repayment plan; adequate fund balances available to Defs from unused loan by Oakland Dist, Greater Avenues to Independence Program. 5/91: Gov filed emergency appeal to CA Sup Ct to stay injunction, stop loan, keep control in Dist. 5/10/91: Sup Ct unanimously refused stay. 12/31/92: CA Sup Ct (4-3), Baxter, J, aff'd trial ct's determination that State has duty to prevent budgetary problems of a particular school dist; however, trial ct exceeded its authority by diverting emergency loan funds from legislative appropriations intended for other purposes.

Arturo Gonzáles, Morrison & Foerster, 345 California St, 94104; Michael Harris, Lawyers Comm for Civil Rights, 301 Mission St, 94105; both San Francisco, CA; amicus MCLI, PO Box 673, Berkeley, CA 94701-0673

  Right to Education
PL-814/46.7. Stanley Pacheco v. New York City (Queens Cty Sup Ct #23195/86, 1992)

1987: Pl, Def, students at Jamaica High School in NYC argued in cafeteria, teacher broke up fight; 1 week later, resumed fighting, Def shot Pl in back w/ .30 caliber gun, leaving Pl quadriplegic. Pl, family sued City, student: inadequate supervision, security at time of shooting, Def-NY School Bd aware of 19 other incidents in unsupervised areas.

• 9/24/92: After jury trial, Price, J, entered verdict: Pl awarded $30 million, each Def to pay 50%.

Pamela A Liapakis, Robert G Sullivan, Eleni Coffinas, Sullivan & Liapakis, 100 Church St, NY, NY 10007

  Guns in Schools
PL-614/46.7. Brown v. Griffin (Blakely, GA Firefighters); (MD GA #90 Civ 98)

Def-Center for Democratic Renewal (CDR) involved in suit against Blakely, GA, charging city firefighters w/ membership in KKK, neglect of Blakely's black community, failure of city leadership to take action. 7/90: Pl-firefighter sued CDR for libel: not KKK member. During discovery, Defs found records of several calls from Pl to KKK nat'l offices. 12/90: Pl resigned citing ill health; Blakely forced 2 firefighters

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to resign due to KKK activities.

• 4/91: Parties settled: prohibited city employment of members of hate groups; condemned racist neglect in city services. Pl withdrew suit.

Joan P Gibbs, Stephanie Y Moore, Morton Stavis, CCR, 666 Broadway, 7th Fl, NY, NY 10012; Brian Spears, Atlanta, GA

  Hate Crimes
PL-735/46.8. England v. Texas (Dallas Police Dept); 846 SW2d 957 (TX DCA-Austin 1993)

1989: Dallas Police Dept interviewer informed Pl homosexuality made her ineligible for employment: homosexuals violate sodomy law. Pl sued: hiring policy unconstitutional, TX Pen C §21.06 (1989).

• 1991: Fuller, J, granted partial summary judgment: sodomy statute unconstitutional; enjoined dept from enforcing statute, denying employment solely on applicant's admission of homosexuality. 2/10/93: DCA aff'd, Smith, J: 1) Dist Ct had jurisdiction to rule on constitutionality of act; 2) irreparable injury, lack of adequate remedy requirements for injunctive relief satisfied; 3) denial of police chief's qualified immunity defense had to be raised in severed damages cause of action; 4) TX plea to jurisdiction properly sustained. 5/5/93: TX Sup Ct dism'd appeal.

Edward J Tuddenham, Wiseman, Durst & Tuddenham, Austin, TX

  Gay/Lesbian Rights
PL-301/46.8. Santa Barbara, CA v. Adamson 164 CA Rptr 539 (CA Sup Ct 1980)

City sought preliminary injunction prohibiting 12 unrelated persons from living together in family residence zone: violation of Ordinance 28.04.230 defining "family" as individual, 2 or more persons related by blood, marriage, legal adoption, group of 5 other persons maximum.

• Trial ct issued preliminary injunction. 5/15/80: CA Sup Ct rev'd, Newman, J: Ordinance violated right of privacy provisions under CA Const Art 1 §1 by drawing distinction between related, unrelated persons: UDHR Arts 12, 16(3), 17(1), 29(2).

  Residence Rights
PL-30/46.8. Judy Freiworth v. Wilmington, MA (DC MA No 84-1779-K)

6/6/84: Pl sued to enjoin town from denying permission or interfering w/ planned demonstration against deployment of nuclear missiles in Europe: denial of permission to hold rally, requirement to post bond, violated 1st Amdt freedoms of speech, assembly.

• 6/14/84: Keeton, DJ: ruled for Pls.

Regina E Roman, Sugarman, Rogers, Barshak & Cohen, 33 Union St, Boston, MA 02108; John Reinstein

  Nuclear Weapons Protest
PL-604/46.8. Seymour v. San Diego Police Dept (San Diego Cty Super Ct 1988)

1979-81: Pl-police reservist infiltrated Tom Metzger's CA Klan, white supremacist group. 1984: Pl sued Def for violating his constitutional rights: Def coerced him into staying in assignment too long; disavowed

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his presence in undercover operation; destroyed intelligence reports to hide allegations police spied illegally on congressional candidate Metzger in violation of 1939 Hatch Act.

• 1988: Rosado, J: dism'd city, police chief as Defs, instructed jury to consider only damages for violation of Pl's civil rights, conspiracy to do so. 5/9/88: Jury found 2 police officers liable for violating Def's civil rights, awarded Pl $531,000. Rosado, J: reduced award to $162,400, gave Pl option of seeking new trial. Pl rejected award, appealed J's decision. 8/88: Pl/San Diego City Council settled for $294,570.

David M Korrey

  Hate Crimes
PL-432/46.9. Chris McKinney v. Sunnyvale, CA Dept of Public Safety (ND CA 89-2243 WWS)

4/21/86: Large protest at Lockheed plant in Sunnyvale; later police arrested 4 Pls: "sticker on license plate upside down." Police detained Pls 1 hr: interrogated, ran warrant checks, photographed. 10/20/86: Pl-Smith at plant protest; arrested; held 12 hrs; charges dropped after 6 ct appearances. Pls sued for $100,000: harassment, chilling effect on 1st Amdt freedoms of assembly, speech, violation of 4th, 14th Amdts.

• 12/18/89: At trial many prospective jurors excluded: participated in past anti-war protests; Defs admitted liability for bad arrest of Smith; 2 Pls testified. 12/20/89: During trial Defs settled: $40,000.

Richard Koch, Oakland, CA; Dave Bouvais, La Jolla, CA

  Nuclear Weapons Protest
PL-840/46.9. Davis v. Mason Cty, WA 927 F2d 1473 (9th Cir 1991)

6/85-3/86: In 4 incidents, Def's deputy sheriffs, traffic cop allegedly arrested, beat, falsely charged Pls; injuries included: choking, hair pulling, rubbing Pls' faces into gravel parking lot, beating Pls w/ stun gun in testicles, kidneys. Pls sued.

• Jury awarded Pls: $528,000 compensatory, punitive damages; DC awarded: $325,000 atty fees. 1991: 9th Cir aff'd, Pregerson, CJ: Def's deputy training was reckless, "deliberately indifferent".

Timothy K Ford, MacDonald, Hoague & Bayless, 15th Fl, Hoge Bldg, 705 2d Ave, Seattle, WA 98104

  Police Misconduct
PL-813/46.9. Pottinger v. Miami 720 FSupp 955 (SD FL 1989); 810 FSupp 1551 (1992)

12/23/88: Pl filed class action for 6,000 homeless people living in Miami, alleging Def arrested, harassed, interfered w/ homeless: violation of U.S. Const 1st, 4th, 5th, 6th, 8th, 9th, 14th Amdts; FL Const Art 1 §§2, 5, 9, 12, 16, 17, 23; 42 USC 1983, 1988; applied for preliminary injunction.

• 12/30/88: DC denied motion: inability to fashion injunction w/ specificity required by FRCivP 65(d). 4/90: Def's police officers awakened, handcuffed Pls in Lumas Park, dumped personal possessions (identification, medicine, clothing, Bible) into pile, set afire. 4/26/90: DC issued order not to destroy property collected at time of contact w/ homeless persons, follow own written policy of preserving

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property obtained by police units. 3/91: Pl sought injunction: failure to comply w/ order. 3/18/91: DC issued injunction: Police sweeps of homeless belongings in contempt of earlier order; City to pay $2,500 to shelter, enjoined from destroying property. 6/11/91: trial bifurcated. 11/16/92: Atkins, DJ: practices re arrests, seizures violate Pl's property rights; City liable for failure to take steps to stop conduct of harassing, dissipating homeless; violated 8th Amdt.

Benjamin S Waxman, Daniel Jones, Maurice Rosen, Miami ACLU, 225 NE 34th St S, Ste 102, 33137; Jeffrey S Weiner; all Miami, FL

  Homeless
PL-795/46.10. Mark Stanton Curtis v. Des Moines, Dusenberry, Wolf (SD IA 1991)

3/4/88: Def police officers Dusenberry, Wolf arrested Pl at home of 15 yr-old victim of sexual assault, transported Pl to station, instructed Pl to remove all clothes; Pl obeyed except pants/underpants; Pl lunged toward Def; Def handcuffed Pl, kneed Pl 3 times in eye, kicked Pl in groin; Pl suffered severe bruising of abdomen, face, fracture of left eye, loss of some bodily functions for 3 weeks. Pl sued: 42 USC §1983, 4th, 8th, 14th Amdts: Defs used excessive force after Pl subdued. Defs: actions privileged, self-defense, entitled to qualified immunity.

• 1/31/92: Wolle, DJ: Defs violated 4th, 14th Amdts while acting under color of state law; Def-city not liable: beating not part of employment; Pl entitled to $11,000 damages for injuries, violation of constitutional rights; not entitled to exemplary, punitive damages.

William Kutmus, 218 6th Ave, Des Moines, IA 50309; Mark Curtis Defense Comm, PO Box 1048, Des Moines, IA 50311

  Police Misconduct
PL-714/46.10. Julia Gómez v. Gates, Los Angeles Police Chief 804 FSupp 69 (CD CA 1992)

2/12/92: Four Latino men robbed McDonald's w/ inoperable pellet guns. LAPD officers fired 20 shotgun rounds into getaway car, wounding robbers. Burgos shot, killed while fleeing scene; another robber shot, killed by other officer after already being fatally or near-fatally wounded by shot through top of head from 2 feet away. Same officer shot, wounded Olivas in stomach from 18 inches away. Pls-Olivas, other victims/families sued LAPD.

• 3/30/92: after trial, jury held all officers who fired shots, LAPD chief Gates liable; awarded no compensatory damages, $44,000 punitive damages to Olivas, survivors of 3 dead. 5/11/92: Pls moved for $430,460 atty fees. 7/31/92: Letts, DJ: awarded $216,100 atty fees plus lodestar fee of 1.75 times for handling undesirable case on contingency: total $378,175.

Stephen Yagman, 723 Ocean Front Walk, Venice, CA 90291

  Police Brutality
PL-631/46.10. Lareau v. Manson, CT Commr of Correction 507 FSupp 1177 (DC CT 1980); 651 F2d 96 (2d Cir 1981)

Hartford Community Correctional Center held both pretrial detainees, convicted inmates. 1980: Pl-inmates sued: conditions of confinement

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including overcrowding, inadequate health care, sanitation, food, heating, violated 8th Amdt, due process.

• 12/29/80: Cabranes, DJ: 1) Defs violated pretrial detainees' due process rights by confining them w/ other inmates in overcrowded conditions; 2) Defs violated 8th Amdt duty to provide adequate housing for convicted inmates due to general overcrowding, placing 2 in single cells; 3) Defs' failure to screen newly-arrived inmates to identify/segregate persons carrying communicable diseases constituted punishment in violation of due process; 4) ordered reduction in prison population to original design capacity, prohibited double celling. 6/1/81: 2d Cir aff'd, modified as to 4, Mansfield, CJ: requirements may be temporarily forgiven should exigent circumstances, not present here, arise; remanded: remedy of design capacity population cap, absolute prohibition of double celling not feasible, must be modified.

Jon C Blue, Legal Assistance to Prisoners, Hartford, CT

  Prisoners' Rights
PL-817/46.11. Prison Law Offices, ACLU-N CA v. California Dept of Corrections (Marin Cty Super Ct 1992); ACLU News (11/89)

1985-89: Def conducted unreasonable random searches of inmates' visitors, their cars. Pl sued: 4th Amdt violations of visitors' right to privacy. Def claimed necessity: serious drug problems in prisons.

• 9/12/89: Breiner, J, issued injunction: forbade dog searches w/out written consent; required Def to inform visitors of right to leave before being searched; dogs must be kept 20 feet away from visitors at all times; placed 20 minute limit on searches.

Donald Specter, Prison Law Office, General Delivery, San Quentin, CA 94964; Richard Goff, Jon Hayden, Richard DeNatale, Jo Kerlinsky, Heller, Ehrman, White & McAuliffe, 333 Bush Ste 3100, 94104-2878; Alan Schlosser, ACLU-N CA, 1663 Mission St, 94103; all San Francisco, CA

  Privacy Right
PL-540/46.11. Nina Jordan v. Gardner, Washington State Corrections Employees Assn (WD WA 1989); 968 F2d 984 (9th Cir 1992); 986 F2d 1521 (1993)

7/89: Def-WA Correction Center for Women (WCCW) increased number, intensity of body searches; allowed male officers to conduct non-emergency body searches, reversing 18-yr policy. 7/5/89: Male officers searched several inmates, who sued for injunction under 42 USC §1983: cross-gender searches violate 1st, 4th, 8th, 14th Amdts. Defs claimed necessity.

• 7/89: Tanner, DJ: asked Defs to stop cross-gender searches pending decision; Defs refused. Bryan, DJ: issued TRO. 9/11/89: DJ issued preliminary injunction. 12/89: At trial, expert witnesses testified on effects of searches. 12/22/89: Bryan, DJ: cross-gender searches violated: 1st Amdt rights of inmates w/ religious convictions against being touched intimately by men not their husbands; 4th Amdt rights to freedom from unreasonable searches; 8th Amdt rights to freedom from cruel/unusual punishment for inmates w/ history of abuse who would suffer great emotional harm from cross-gender searches (85% of

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inmates had history of abuse); fundamental privacy rights. 4/2/92: 9th Cir, Wallace, CJ: no violation of 1st, 4th, 8th Amdts; prison authorities had sufficient reason, searches not unreasonable, insufficient evidence to prove cruel, unusual harm. 2/25/93: 9th Cir, en banc, rev'd (7-4), O'Scannlain, CJ: cross-gender, non-suspicion clothed body searches violate 8th Amdt.

Timothy Ford, Katrin Frank, Virginia Fuller, Judith Ramseyer, 705 2d Ave 15th Fl, Seattle, WA 98104

  Sexual Harassment
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c. CASES WITH SUPREME COURT OPINIONS

PL-404/47.1. Joshua DeShaney v. Winnebago County, WI 812 F2d 298 (7th Cir 1987); 489 US 189 (1989)

1/82-3/84: Co-Def Dept of Social Services (DSS) received complaints: Pl-minor (born 1979) beaten by father; Pl hospitalized repeatedly. DSS took protective steps: visited home, requested father enroll Pl in preschool; did not take Pl from father's custody. Father did not comply w/ protective measures. 3/84: Pl beaten comatose, suffered severe brain damage, rendered profoundly retarded. Pl's father later convicted of child abuse. Pl's mother sued cty, DSS on Pl's behalf under 42 USC §1983: Defs deprived Pl of liberty w/out 14th Amdt due process by failing to protect Pl from known risk of violence.

• Reynolds, DJ: granted Defs summary judgment. 2/12/87: 7th Cir aff'd, Posner, CJ: due process does not require Gov't to protect citizens from "private violence"; causal link between Defs' action, Pl's injury too weak to establish actionable deprivation of rights under §1983; rejected position in 768 F2d 503 (3d Cir 1985): when Gov't learns of danger of child abuse, "special relationship" arises imposing affirmative constitutional duty to provide protection. 2/22/89: USSC aff'd (6-3), Rehnquist, ChJ: 14th Amdt does not require Gov't to protect citizen's life, liberty, property against invasion by private actors. Brennan, J (Marshall, Blackmun, JJ) diss: WI directs citizens, Gov't entities to depend on local DSS to protect children from abuse; DSS inaction left Pl worse off because no one would fill gap. Blackmun, J, diss: DSS intervened in Pl's life, creating fundamental duty to act.

Donald J Sullivan

  Children
PL-796/47.1. Suter v. Artist M (IL Dept of Children & Family Services); 726 FSupp 690 (ND IL 1989); 917 F2d 980 (7th Cir 1990); 112 SCt 1360 (1992)

1989: Pl-parent sued Def-Dir, IL Dept of Children & Family Services: failing to make reasonable efforts to preserve, reunite families; sought declaratory, injunctive relief (42 USC §671(a)(15)).

• 1989: Shadur, DJ: Adoption Assistance, Child Welfare Act (AACWA) (42 USC §§620-628, 670-679a) contained implied cause of action; suit could be brought under 42 USC §1983, issued injunction. 1990: 7th Cir aff'd: 496 US 498 (1990). 3/25/92: USSC rev'd (7-2), Rehnquist, ChJ: AACWA does not create: 1) rights enforceable under §1983; 2) implied private cause of action. Blackmun, J (Stevens, J) diss: decision clearly inconsistent w/

Michael Dsida, Chicago, IL

  Children
PL-403/47.1. JA Croson Co v. Richmond, VA 779 F2d 181 (4th Cir 1985); 106 SCt 3327 (1986); 822 F2d 1355 (1987); 109 SCt 706 (1989)

Def-City adopted Minority Business Utilization Plan: construction contractors hired by city to subcontract at least 30% of each contract

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to minority-owned/controlled businesses; provided for waivers on proof of insufficient available minority businesses. Pl applied for waiver; denied. Pl sued: Plan violated 14th Amdt equal protection.

• Merhige, DJ: upheld Plan. 11/25/85: 4th Cir aff'd, Sprouse, CJ: 448 US 448: in light of past societal discrimination, minority set-aside does not violate equal protection. 6/7/86: USSC vacated, remanded: 476 US 267: applied strict standard to race-based layoffs. 7/9/87: 4th Cir rev'd, Wilkinson, CJ: no prior discrimination by Def in awarding contracts, set-aside not narrowly-tailored remedy. 1/23/89: USSC, O'Connor, J, aff'd (6-3). Marshall, J (Brennan, Blackmun, JJ) diss at 740: Numerous decisions show Def-city's history of discrimination; pervasive discrimination in construction industry excludes minorities from public contracting; decision will discourage, prevent state/local Gov'ts from rectifying past discrimination.

John Payton

  Affirmative Action
PL-888/47.2. Board of Education of Oklahoma City v. Dowell 606 FSupp 1548 (WD OK 1985); 795 F2d 1516 (10th Cir 1986); 677 FSupp 1503 (1987); 890 F2d 1483 (1989); rev'd 111 SCt 630 (1991)

Pls sued to desegregate Def-Bd. 1972: DC ordered school desegregation plan. 1977: DC terminated case: school dist had achieved unitary status. 1984: Def adopted Student Reassignment Plan (SRP) reversing desegregation of several schools to alleviate busing burdens. Pls moved to reopen case.

• 4/25/85: Bohanon, DJ, denied motion: 1977 unitariness finding was res judicata. 6/26/86: 10th Cir rev'd, remanded, Moore, CJ: Pls could challenge SRP; Def still subject to desegregation decree; 1977 order did not terminate 1972 injunction. 12/9/87: Bohanon, DJ: dissolved injunction: original desegregation plan no longer workable; Def complied w/ injunction in good faith for over 10 yrs; SRP not designed w/ discriminatory intent. 10/6/89: 10th Cir rev'd, Moore, CJ: desegregation decree remains in effect until dist can show grievous wrong evoked by new, unforeseen conditions; circumstances not changed enough to justify modification of 1972 decree. 1/15/91: USSC rev'd (5-3), Rehnquist, ChJ: 1) Def not required to show grievous wrong evoked by new, unforeseen conditions to dissolve decree; unlikely Def would return to former ways after reasonable period of compliance w/ equal protection clause; 2) desegregation decrees not intended to operate in perpetuity, fed'l supervision of local dists intended as temporary measure to remedy past discrimination; 3) in determining whether to dissolve decree, ct should consider whether dist complied in good faith since order entered, whether vestiges of past discrimination eliminated to extent practicable; 4) if Def entitled to have injunction terminated, ct should decide whether SRP complies w/ equal protection requirements. Marshall, J (Blackmun, Stevens, JJ) diss: Desegregation decree cannot be lifted so long as conditions likely to inflict stigmatic injury (condemned in ) persist, feasible methods remain to avoid 1-race schools; purposes of decree not yet achieved; retaining decree does not require active supervision;

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modification to improve effectiveness, give dist more flexibility in minimizing busing may be appropriate.

Julius L Chambers, NY, NY

  School Desegregation
PL-801/47.3. Christine Franklin v. Gwinnet Cty, GA Public Schools 911 F2d 617 (11th Cir 1990); 112 SCt 1028 (1992)

1986: 10th grade teacher allegedly sexually harassed Pl-student. 4/14/88: teacher conditionally resigned: all charges against him dropped; school closed investigation. 12/29/88: Pl sued Def: teacher engaged Pl in sexually-oriented conversation, phoning, forcibly kissing, subjecting her to coercive intercourse; school admrs did not take action to halt behavior, discouraged Pl from bringing suit, violating 1964 Civil Rights Act Title IX.

• Evans, DJ, dism'd. 1990: 11th Cir, Henley, CJ, aff'd. 2/26/92: USSC rev'd, remanded (9-0), White, J: damages remedy available to enforce Title IX. Scalia, Rehnquist, Thomas, JJ, conc. Pending.

Joel I Klein, Washington, DC

  Rights of Children
PL-912/47.3. Lee v. Weisman 728 FSupp 68 (DC RI 1989); 908 F2d 1090 (1st Cir 1990); 112 SCt 2649 (1992)

1989: Pets-Middle school principal, school officials, invited Rabbi to offer prayer at graduation, provided pamphlet containing guidelines for composition of public prayer at civic ceremonies, advised that prayers be nonsectarian. Resps-public school student, father sought injunction to prevent prayer invocations, benedictions in public school graduation.

• 6/89: Before ceremony, DC denied Resp's motion for TRO. Boyle, DJ, granted permanent injunction: violated 1st Amdt establishment clause. 1990: 1st Cir aff'd. 6/24/92: USSC aff'd (5-4), Kennedy, J: Public school's inclusion of nonsectarian prayer in graduation ceremony, selecting clergyman to give prayer, dictating content of prayer, constituted impermissible gov't involvement, establishment of religion by coercing student to stand, remain silent during prayer although attendance completely voluntary; student not required to give up attendance at ceremony, an important event in life, to avoid unwanted exposure to religion.

Sandra A Blanding

  Freedom of Religion
PL-674/47.3. U.S. v. Fordice, Gov of MS 674 FSupp 1523 (ND MS 1987); 893 F2d 732 (5th Cir 1990); on reh'g 914 F2d 676 (1990); vacated, remanded 112 SCt 2727 (1992)

1975: Private Pls sued, U.S. intervened: MS officials violated 14th Amdt equal protection, 1964 Civil Rights Act Title VI for continued policy of de jure segregation in public U system, maintaining 5 almost exclusively white/3 almost exclusively black Us. 1981: MS Bd of Trustees issued Mission Statements; classified 3 white Us as comprehensive, offered varied programs, doctoral degrees; redesignated 1 black U as urban, w/ limited research, degree functions;

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characterized others as regional undergraduate institutions. Racial composition at institutions remained same; suit proceeded to trial.

• 1987: Biggers, DJ: MS officials met duty of desegregation; affirmative duty to desegregate in higher education does not contemplate restricting student choice or achievement of racial balance; current MS policies/practices should be examined to ensure they are race-neutral, developed/implemented in good faith; do not substantially contribute to racial identifiability of individual institutions; MS actions demonstrate state is fulfilling affirmative duty to dismantle de jure segregated system. 1990: 5th Cir rev'd. On reh'g en banc, 5th Cir aff'd. 6/26/92: USSC vacated, remanded (8-1), White, J: 1) merely adopting, implementing race-neutral policies to govern college/U system did not necessarily fulfill state's affirmative obligation to disestablish prior de jure segregated system; 2) lower cts did not apply correct legal standard; 3) MS perpetuates policies/practices that continue to have segregated effects; they are w/out sound educational justification and can be practically eliminated, such policies violate equal protection even though MS has abolished de jure segregation, established race-neutral policies; 4) proper inquiry: whether existing racial identifiability is attributable to state; 5) on remand, MS must justify facially race-neutral policies that substantially restrict person's choice of institution, contribute to racial identifiability of 8 public Us, or eliminate them. Scalia, J, conc, diss.

Alvin O Chambliss Jr, Oxford, MS; Kenneth W Starr, Washington, DC

  Education Discrimination
PL-334/47.4. California Fed'l Savings & Loan Assn v. Guerra 758 F2d 390 (9th Cir 1985); 107 SCt 683 (1987)

1-4/82: Pl's receptionist-Garland took 4-mth pregnancy leave. 4/82: Garland requested reinstatement to same/similar job under CA Gov't C §12945(b)(2); Pl refused. 5/83: CA Dept of Fair Employment served Pl w/ complaint: violation of pregnancy leave law. 8/1/83: Pl sued for injunction: preemption by fed'l anti-discrimination law, Civil Rights Act Title VII. Human Rights Advocates filed amicus brief listing int'l treaties protecting pregnant women workers: such special protection does not offend int'l guarantees of nondiscrimination.

• DC granted Pl summary judgment: CA law discriminated against males. 4/16/85: 9th Cir rev'd. 1/13/87: USSC rev'd (6-3): state stat neither preempted by Fed'l Pregnancy Discrimination Act nor requires violation of Title VII; did not mention int'l law.

Constance de la Vega, Richard Ziegler, Human Rights Advocates

  Pregnancy Leave
PL-866/47.4. Gene Arline v. School Bd of Nassau County, FL 772 F2d 759 (11th Cir 1985); 107 SCt 1123 (1987); 692 FSupp 1286

(MD FL 1988)

1957: Pl-teacher hospitalized for tuberculosis (TB). 1977-78: Pl suffered relapse; Def-Bd suspended Pl w/ pay. 1979: Pl discharged for continuing, recurrent TB, disqualifying Pl for employment as teacher. Pl sought relief in state admr proceedings: dismissal violated 1973 Rehabilitation Act §504 (87 Stat 394, 29 USC §794); unsuccessful.

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Pl sued.

• Moore, DJ, denied relief: Pl not handicapped under Act: suffering from contagious disease not "physiological disorder or condition ... of the ... body system" (45 CFR §84.3(j)(2)(i) (1985)). 1985: 11th Cir, Vance, CJ, rev'd. 3/3/87: USSC aff'd, remanded (7-2), Brennan, J: persons suffering from contagious diseases may be "handicapped" under Act: individual inquiry, appropriate findings of fact based on reasonable medical judgments of public health officials must be made in each case. Rehnquist, ChJ (Scalia, J) diss. 1988: Moore, DJ: Pl posed no threat of communicating TB to students: on medication, spouse/children tested negative, limited exposure to students; Pl entitled to: 1) full back pay/benefits for 4 yrs; 2) no damages for 4 yrs w/out effort to mitigate damages; 3) reinstatement or front pay 1988-retirement: $769,000.

George K Rahdert, Steven H Malone; amicus: Disability Rights, Education & Defense Fund (DREDF), Washington, DC

  Disability Rights
PL-802/47.5. Jett v. Dallas Independent School Dist 798 F2d 748 (5th Cir 1986); 109 SCt 2702 (1989)

8/4/83: Pl-white teacher, athletic director, had repeated clashes w/black high school principal over school policies, football program; principal recommended Pl be relieved as athletic director, coach; Def-Dist Supt aff'd, reassigned Pl to teaching position at another school w/out coaching duties. Pl sued: racial discrimination (42 USC §§1981, 1983); 14th Amdt equal protection.

• 1984: After jury trial, Sanders, J: entered judgment against school dist, principal in his individual capacity; jury awarded Pl $650,000 from Dist; $150,000 from principal, Dist; $50,000 punitive from principal in personal capacity. 6/22/89: USSC aff'd in part, remanded in part (5-4), O'Connor, J: 1) municipality may not be held liable for its employees' violations of §1981 under respondeat superior; 2) instruction that school dist could be held liable for actions of its bd of trustees, delegated admr officials (supt, principals) for wrongful, unconstitutional action against school dist was manifest error. Brennan, J (Marshall, Blackmun, Stevens, JJ) diss. Stevens, J diss.

Frank Gilstrap, Arlington, TX

  Racial Discrimination
PL-760/47.5. Collins v. Harker Heights, TX 916 F2d 284 (5th Cir 1990); aff'd 112 SCt 1061 (1992)

10/21/88: Employee of city sanitation dept died of asphyxia after entering manhole to unstop sewer line. Pet-widow sued under 42 USC §1983; 1st, 14th Amdts; TX Hazard Communication Act, Vernon's Ann TX Civ Stat, Art 5182b, §§1, 10(a), 15(a) (repealed): Decedent had constitutional right to be free from unreasonable risks of harm to body, mind, emotions; to be protected from city custom, policy of deliberate indifference toward employee safety.

• 10/30/88: DC dism'd, failure to state claim. 1990: 5th Cir aff'd, denied recovery, no abuse of governmental power, which is necessary element for §1983 action. 2/26/92: USSC aff'd (9-0), Stevens, J: 1) city's alleged failure to train, warn employees about known

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hazards in workplace did not violate due process clause; §1983 does not provide remedy for municipal employee fatally injured in course of employment due to city's failure; 2) TX Hazard Communication Act did not support Pl's substantive due process claim.

Sanford Jay Rosen, San Francisco, CA

  Employer Responsibility
PL-761/47.6. Cruzan v. Director, Missouri Dept of Health 760 SW2d 408 (MO Sup Ct 1988); aff'd 110 SCt 2841 (1990)

1/11/83: Pl severely injured in auto accident; lived in persistent vegetative condition at state hospital; State bearing costs of care. 198_: Pl's parents sought termination of artificial nutrition, hydration resulting in death; hospital employees refused; Co-Pl-parents sued.

• Teel, J: person in Pl's condition has fundamental right under MO, U.S. Consts to direct/refuse withdrawal of death-prolonging procedures; Pl's expression to former housemate suggested she would not wish to continue nutrition, hydration. 1988: MO Sup Ct rev'd. 6/25/90: USSC aff'd (5-4), Rehnquist, ChJ: 1) U.S. Const allows MO to require clear, convincing evidence of incompetent's wishes to withdraw life-sustaining treatment; 2) MO Sup Ct did not commit constitutional error by concluding evidence of patient's desire to cease nutrition, hydration not clear, convincing; 3) due process did not require state to accept substituted judgment of close family members absent substantial proof their views reflected those of patient. Stevens, J, Brennan, J (Marshall, Blackmun, JJ) diss.

William H Colby, Kansas City, MO

  Right to Die
PL-586/47.6. Oyama v. California 29 CA2d 164 (CA Sup Ct 1946); 332 US 633 (1948)

1934-37: PL-Japanese citizen in U.S. bought land for son-U.S. citizen. 1942: Pl's family sent to wartime relocation camps. 1944: CA filed to escheat land: Alien Land Law (1 CA Gen Laws, Act 261) forbade alien ineligible for U.S. citizenship to own, transfer land.

• 1944: At trial, Shell, J: allowed escheat. 10/31/46: CA Sup Ct aff'd: land escheated on purchase; did not violate Pl's son's rights. 1/19/48: USSC rev'd, Vinson, J: escheat deprived son of 14th Amdt equal protection solely because of parents' nat'l origin. Murphy, J, conc: Alien Land Law part of anti-Japanese racism in U.S. history; law barrier to fulfillment of U.S. pledge under UN Charter to promote respect for, observance of human rights, fundamental freedoms.

AL Wirin, Dean Acheson

  Racial Discrimination
PL-433/47.6. Zschernig v. Miller (OR Land Bd); 412 P2d 781 (OR Sup Ct 1966); 389 US 429 (1968)

1962: OR resident died. Pls-E German heirs sought estate in OR Probate Ct. Defs-State Land Bd members petitioned for escheat of estate to OR: property claimed by nonresident alien escheated to state unless reciprocal property rights exist for U.S. citizens in foreign country (OR Rev Stat §111.070).

• Probate Ct: allowed escheat: no reciprocal rights for U.S. citizens

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in E Germany. 6/13/66: OR Sup Ct: Pl could take realty by 1923 Treaty w/ Germany, could not take personalty: 331 US 503. 1/15/69: USSC rev'd, Douglas, J: §111.070 intrusion by State into foreign affairs; did not reexamine does not sanction state involvement in foreign affairs; decisions following "radiate ... attitudes of the `cold war'" leading to search for "democracy quotient" of foreign regimes, inquiries into admr of foreign law.

Peter A Schwabe Sr

  Nationality/Inheritance
PL-766/47.7. Forsyth County, GA v. Nationalist Movement 913 F2d 885 (11th Cir 1990); 934 F2d 1482 (1991); aff'd 112 SCt 2395 (1992)

1989: Pet-white supremacist group proposed demonstration against Martin Luther King, Jr holiday. Resp-cty imposed fee: added police protection, 1987 Assembly and Parade Ordinance 34. Pet sued.

• O'Kelley, DJ: denied TRO. 1990: 11th Cir rev'd: ordinance which charges more than nominal fee for using public forums for public issue speech facially unconstitutional. 6/19/92: USSC aff'd (5-4), Blackmun, J: 1) cty ordinance permitting gov't admr to vary fee for assembling/parading to reflect estimated cost of maintaining public order facially unconstitutional due to absence of narrowly drawn, reasonable, definite standards to guide fee determination; 2) ordinance unconstitutionally required admr to examine content of message, to estimate public response, cost of police services; 3) $1,000 cap on parade permit fee did not render ordinance constitutional. Rehnquist, ChJ (White, Scalia, Thomas, JJ) diss.

Robert S Stubbs III, Cumming, GA

  Freedom of Speech
PL-799/47.7. Cincinnati v. Discovery Network, Inc (SD OH 1990); 946 F2d 464 (6th Cir 1991); 113 SCt 1505 (1993)

1989: Pet-city authorized Resp-Co to place 62 news racks on public property to distribute free magazines, ads. 1990: Pet revoked permits: safety, esthetics of city streets. Resp sued: 1st Amdt.

• 1990: Spiegel, DJ: enjoined enforcement. 1991: 6th Cir aff'd: Pet's selective ban of "commercial handbills" violated 1st Amdt. 3/24/93: USSC aff'd (6-3), Stevens, J: ban on racks w/ "commercial handbills" not necessary for safety, esthetics; enforcement did not constitute valid time, place, manner of restricting protected speech. Blackmun, J, conc: intermediate scrutiny sufficient for truthful, noncoercive commercial speech about lawful activities. Rehnquist, ChJ (White, Thomas, JJ), diss: commercial speech should be limited.

Marc D Mezibov, Cincinnati, OH

  Freedom of Press
PL-771/47.7. Leatherman v. Tarrant Cty, TX Narcotics Intelligence & Coordination Unit 755 FSupp 726 (ND TX 1991); 954 F2d 1054 (5th Cir 1992); rev'd 113 SCt 1160 (1993)

Local police served 2 search warrants; forcibly entered homes in Pl's absence, killed Pl's dogs: alleged detection of odors associated w/

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manufacture of narcotics. Homeowners sued local officials, cty, city: 42 USC §1983, 4th Amdt; failure to adequately train police officers.

• 1991: DC dism'd: Pls failed to meet heightened pleading standard for municipal liability requiring factual detail, particularity in complaint. 1992: 5th Cir aff'd. 3/3/93: USSC rev'd (9-0), Rehnquist, ChJ: 1) fed'l ct may not apply heightened pleading standard more stringent than FRCivP 8(a) in civil rights cases alleging municipal liability under §1983; standard cannot be justified on ground that more relaxed pleading standard would remove municipalities' immunity by subjecting them to expensive, time-consuming discovery; municipalities do not enjoy absolute immunity from §1983 suits; 2) not possible to square heightened standard w/ liberal system of notice pleading; FRCivP 8(a)(2) requires short, plain statement of claim showing pleader entitled to relief; FRCivP 9(b), requiring greater particularity, does not include reference to complaints alleging municipal liability under §1983.

Richard Gladden, Denton, TX

  Police Misconduct
PL-436/47.8. Walter Harper v. Washington (Snohomish Cty Super Ct 1987); 759 P2d 358 (WA Sup Ct 1988); rev'd 110 SCt 1028 (1990)

1976: Jury convicted Pl of robbery. 1980: Pl paroled, required to receive psychiatric treatment. 12/81: Pl assaulted 2 nurses; WA revoked parole, sent Pl to prison psychiatric treatment facility. 11/82: Pl refused prescribed medication. Prison policy 600.30 authorized treatment of Pl w/ psychotropic drugs against Pl's will w/out legal h'g. 3/87: Pl sued under 42 USC §1983: violation of 14th Amdt due process.

• 5/27/87: Kershner, J: dism'd suit. 7/7/88: WA Sup Ct rev'd, Brachtenbach, J: judicial h'g constitutionally required before treatment. 2/27/90: USSC rev'd (6-3), Kennedy, J: prison admr h'g can order treatment of Pl against his will; not a violation of due process. Stevens, J (Brennan, Marshall, JJ) diss: prison policy 600.30, permitting treatment of Pl based solely on impact Pl's disorder has on prison security, making no reference to any expected benefit to Pl's medical condition, sacrifices Pl's substantive liberty interest; procedure fails to have treatment decision made/reviewed by impartial person/tribunal.

Brian Reed Phillips, Everett, WA

  Prisoners' Rights
PL-863/47.8. Wilson v. Seiter (SD OH 1989); 893 F2d 861 (6th Cir 1990); 111 SCt 2321 (1991)

1989: Pl-inmate alleged prison conditions violated 8th, 14th Amdts: cruel, unusual punishment; sued for declarative, injunctive relief, $900,000 compensatory/punitive damages under 42 USC §1983.

• 1989: Graham, DJ: granted Def's motion for summary judgment. 1/16/90: 6th Cir aff'd, Harvey, CJ: Pl's affidavits describing prison conditions failed to establish Def's culpable state of mind. 6/17/91: USSC vacated, remanded (5-4), Scalia, J: 1) prisoner claiming 8th Amdt violation must show prison officials' culpable state of mind; 2) "deliberate indifference" standard applies to prisoners challenging prison conditions; 3) 6th Cir erred in applying "behavior marked by

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persistent malicious cruelty" standard; error possibly harmless since lower ct found Pl's affidavits established negligence at most. White, J (Marshall, Blackmun, Stevens, JJ) diss: prison officials' state of mind irrelevant; test should be whether confinement conditions, viewed objectively, amount to cruel, unusual punishment.

Elizabeth Alexander, William C Bryson

  Prisoners' Rights
PL-864/47.9. Simon & Schuster v. New York Crime Victims Board 724 FSupp 170 (SD NY 1989); 916 F2d 777 (2d Cir 1990); 112 SCt 501 (1991)

8/81: Author contracted w/ organized crime figure to write biography. 9/81: Pl agreed to publish book. 1/86: Pl published biography. Def ordered Pl to submit contract, suspend royalty payments to author: "Son of Sam law" (NY Exec Law §632-a, McKinney Supp 1991). 5/21/87: Def ordered all money owed under contract to escrow account for crime figure's victims. 8/87: Pl sued for injunction under 42 USC §1983: "Son of Sam law" violated 1st Amdt.

• 8/26/89: Keenan, DJ: "Son of Sam law" consistent w/ 1st Amdt. 10/3/90: 2d Cir aff'd. 12/10/91: USSC rev'd (6-2), O'Connor, J: 1) stat presumptively inconsistent w/ 1st Amdt, imposing financial burden on speakers based on content of speech; 2) stat not narrowly tailored to achieve State's compelling interest in compensating victims from profits of crime; stat applies to works on any subject expressing author's recollections of his crime, however incidental; §632-a(10)(b)'s broad definition of "person convicted of crime" enables Def to place proceeds of publication admitting crime in escrow, whether or not author was ever actually accused/convicted.

Ronald Rachberg, NY, NY; Assn of American Publishers Inc, amicus

  Freedom of Speech
PL-841/47.9. Keith Hudson v. McMillian, Mezo, LA State Penitentiary 929 F2d 1014 (5th Cir 1990); 112 SCt 995 (1992)

10/30/83: Defs-security officers handcuffed, shackled, beat Pl-Angola penitentiary inmate. Supervisor Mezo watched beating, told officers do not "have too much fun." Pl sued Defs for compensatory damages: violation of 8th Amdt, 42 USC §1983.

• 1987: U.S. Magis awarded Pl $800. 1990: 5th Cir rev'd: use of force objectively unreasonable; Defs' conduct clearly excessive, but injuries "minor," required no medical attention. 2/25/92: USSC rev'd (7-2), O'Connor, J: use of excessive physical force against prisoner may constitute cruel/unusual punishment even though prisoner does not suffer serious injury. Thomas, J (Scalia, J) diss.

Alvin J Bronstein, Exec Dir, Nat'l Prison Project, ACLU, 1875 Connecticut Ave NW #410, Washington, DC 20009

  Prisoners' Rights
PL-914/47.9. Terry Foucha v. Louisiana 563 So2d 1138 (LA Sup Ct 1990); rev'd 112 SCt 1780 (1992)

Pet arrested; tried; acquitted by reason of insanity; returned to hospital under LA law: insanity acquittee committed to psychiatric

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hospital may, on recommendation of hospital review comm, be released after trial ct review to determine whether he is dangerous to himself or others; if so found, may be returned to hospital, whether or not still mentally ill. Comm: Pet mentally competent but w/ dangerous, antisocial personality. Pet sued: due process forbids confinement of insanity acquittee on basis of dangerousness alone.

• LA Ct of App denied supervisory writs. 6/14/90: LA Sup Ct, Marcus, J, aff'd. 5/18/92: USSC rev'd (5-4), White, J: LA must show both mental illness and dangerousness to confine insanity acquittee; if no longer insane, entitled to constitutionally-adequate procedures to establish grounds for further confinement; Pet's confinement is arbitrary deprivation of liberty w/out due process. Kennedy, Thomas, JJ (Rehnquist, Scalia, JJ) diss. 6/30/92: Pet released.

James P Manasseh, Baton Rouge, LA

  Insanity
PL-670/47.10. Employment Div, Dept of Human Resources of Oregon v. Alfred L Smith 707 P2d 1274, 709 P2d 246 (OR Ct of App 1985); 721 P2d 445, 451 (OR Sup Ct 1986); 108 SCt 1444 (1988); 763 P2d 146 (OR Sup Ct 1988); rev'd 110 SCt 1595 (1990)