vol. 35, no. 7

Primary tabs

American

Civil Liberties

Union

Volume XXXV

The Presidio 27

Reverse

SAN FRANCISCO, JULY, 1970

Private

Sood's Mutiny

Conviction

On October 11, 1968, Richard Bunch, a mentally disturbed

inmate of the Presidio Stockade, who had previously at-

tempted suicide, asked a guard if he would be shot if he at-

tempted to leave a work detail. The guard responded in the

affirmative, Bunch left the detail and was shot dead. Since

guards are not supposed to shoot.

to. kill, Bunch's suicide attempt.

would appear foolish but for the

fact that it was successful. Bunch,

and all the other prisoners, well

knew that the guards did not

follow regulations and were nev-

er disciplined for mistreatment

of prisoners, Bunch's successful

suicide confirmed the worst fears

of the inmates: their very lives

were in the hands of unregulat-

ed guards some of whom were

sadistic and none.of whom were

sympathetic with their plight.

Abysma] Conditions

When Bunch was killed tension

in the stockade reached a cli-

max. There had been over thirty

suicide attempts in the preceding

months; the scandalous over-

crowding in the stockade was in

patent violation of Army regula-

tions; sanitary facilities were so

inadequate that human excrement

flowed from toilets into the

showers; and food rations for 100

were divided between 140 in-

mates, Almost all of the inmates

living in these abysmal condi-

tions were incarcerated for mi-

nor offenses (such as being ab-

sent without leave).

The Incident

On October 14, 1968, at the

_ morning formation, 27 inmates

broke rank and proceeded to a

grassy area within the stockade

where they sat in a circle, sang

civil rights songs, and demanded

to see the stockade Commander,

Captain Robert Lamont. When

Lamont arrived, the Presidio 27

attempted to present him with a

list of their grievances, Lamont

refused to listen to them and be-

gan to read, of all things, the

Mutiny Act, The prisoners met

this rebuff by drowning out the

reading with their voices-they

began singing again. As they

sang, Lamont ordered them to

return to the Stockade. They did

not respond and were arrested

and charged with mutiny (con-

certed refusal to obey orders

with the intent to overrride mili-

tary authority).

The Trial

One of the 27, Nesrey David

Sood of Oakland, asked

ACLUNC's assistance and staff

counsel Paul Halvonik represent-

ed him at the court-martial, Hal-

vonik's defense, that there was

no evidence of a mutiny, proved

unavailing, Sood was convicted,

sentenced to fifteen years at hard

labor, a dishonorable discharge

and forfeiture of all pay and al-

lowances, (After public outcry,

the Pentagon interceded and re-

duced the sentence to two years.)

After Sood's trial, 27 other

demonstrators were convicted of

mutiny and two were convicted

of lesser offenses, The three re-

maining "mutineers" escaped,

fleeing to Canada.

First Appeal

Sood's case was the first of the

Presidio 27 to reach the Court of

Military Review in Falls Church,

Virginia. Halvonik and appellate

co-counsel Captain Paul Saun-

ders urged eighteen assignments

of error on Sood's behalf. Two of

them proved successful; the

Union's

three-judge military court re-

versed the mutiny conviction.

No Mutiny

The Court found that the court-

martial law officer had erred in

refusing to give defense instruc-

`tions on the substance of the

-Continued on Page 4

No, 7

Picnic and Art

- Auction in

Apple County

The Sonoma Chapter will

hold its annual fund - raising

summer picnic and art auc-

tion Sunday, July 12, at Jack

Warnick's Green Valley Or-

chard. The festivities begin at

noon with a picnic lunch pro-

vided -at a modest fee. The

art auction will feature a va-

riety of works donated by lo-

cal artists. Beer will be sold

and swimming is available for

children. The general public

is invited.

To reach Green Valley Or-

chard, drive north from Se-

bastopol on Highway 116 (to-

proximately four miles, turn

left on Green Valley Road and

drive west 11% miles to the

Warnick orchard, 10650 Green

Valley Road. Follow the signs.

ward the Russian River) ap- |

Opposing the Vietnam War

Departures From The

ACLU's Basic Purposes

At its July 9 meeting, the board of directors of the ACLU

of Northern California will consider the statement of the

national board opposing the war in Vietnam. There is no

reason to believe that this statement will not receive the

approval of a majority of the local board. No doubt, too,

most of the sentiments it ex-

presses are concurred in by a

majority of the ACLU's member-

ship, although some may question

whether "immediate withdrawal'

can be supported.

Justification

The national board frankly

concedes that its statement is a

departure from the purposes of

the ACLU, but it is claimed that

there is no `"`basic change in the

organizational _role,"'

whatever that means. Justifica-

tion for this departure is found

in the widespread violations of

civil liberties resulting from the

Vietnam war. By the same rea-

soning, the ACLU should oppose

the present economic and _politi-

cal systems because they also

create widespread violations of

civil liberties.

To be sure, only a few of the

steps by which the ACLU in-

tends to advance its anti-war

policy are departures from policy.

But directly challenging the ab-

sence of a declaration of war, op-

posing appropriations for the war

and urging all ACLU members to

ask their congressmen to work

`for the end of the war are cer-

tainly departures from ACLU pur-

poses.

Other Departures

In addition to the national

board's anti - war declaration,

some branches have gotten in-

volved in other departures from

ACLU's purposes. We find the

ACLU assisting people to secure

welfare of all kinds (not just

challenging denials of due proc-

ess), supporting the grape boy-

cott, filing suits against air and

water pollution, etc. A move to

have the ACLU support a guar-

anteed annual wage was defeated

in the national board. Locally,

proposals have been made that

we get involved in ecological

problems, population control, sup-

port a guaranteed annual income,

etc.

"Right to Live'

During the past year, Roger

Baldwin and some members of

the ACLU's National Committee

sent a memorandum to the na-

tional Board of Directors with

respect to proposals that the Un-

ion `deal substantively with the -

problems of poverty and welfare,

including educational and medi-

cal care.'"' `"`The advocates,'' the

memorandum went on to say,

"appear to have added a new

right of `every citizen to live'

as a concept of civil liberties.

"We would object to extending

our basic principles so as, for

example, to open the doors wide

to dealing with war, which is

opposed to the `right to live,' with

poverty, with public health, and

with the human environment in

general. We learn that already

some affiliates have so extended

the environmental concept in

suits at law for clean air and

unpolluted water.

ACLU's Distinction

"May we remind our colleagues

that the strength of the ACLU

has always been its strictly lim-

ited and defined area, embodied

in the Bill of Rights and the

ACLU Constitution as well. This

concern with the basic guaran-

tees of a democracy in the rela-

tion of citizens to government,

applied to all equally without

partisanship, is our distinction. It

would be lost if we interpreted

our function to concern the merits

of any or all causes in which

we defend civil liberties. It would

lead the Union to pass on the

merits of a particular war, or

strikes, or movements, even of

governmental taxation as fair or

unfair to the poor, and so on to

an indefinite limit.

Maintain Established Purposes

"May we register our very

earnest appeal to our colleagues

to maintain the established pur-

poses and functions of the Union,

which offer us so many unmet.

challenges, and to leave to other

agencies the commendable con-

cerns which motivate such de-

partures from our basic pur-

pose." |

Let's leave the various good

causes,

the war in Southeast Asia, to

other organizations. Diffused

goals may attract some support

but it will also cause resigna-

tions and after awhile we'll be

nothing more than a liberal poli-

tical organization. If we hope to

keep our broad appeal we must

continue to maintain our func-

tional integrity. -E.B.

including opposition to

Departure from ACLU Purposes

National Board

Votes to Oppose

Vietnam War

"In view of the fact that Congress has not declared war,"

the American Civil Liberties Union last month called upon it

"to refuse to appropriate money for the war in Southeast

Asia and to repeal the draft of young men necessary for its

continuance." This position was adopted by the Union's

National Board of Directors at a

meeting held in New York City. -

`Termination of War

Because the continuation of the

war "`so pervasively jeopardizes

the exercise of civil liberties in

our country,' the Union an-

nounced that it will work for an

immediate. termination of the

war and immediate withdrawal

of all United States troops from

Southeast Asia. Toward these

ends, the Union will: continue its

attacks on the draft and govern-

ment inspired repression; urge

Congress to work for an end to

the war; urge peaceful exercise

of First Amendment rights by

those concerned in controversy

over the war; enter the Massa-

chusetts suit being brought in

the United States Supreme Court

based on the recently enacted

statute providing that a ``citizen

of that state cannot be sent

abroad to fight in the absence of

a congressional declaration of

war' and will urge other states

to enact similar laws.

Presidential Usurpation

While recognizing constitution-

ally provided presidential powers

in the conduct of foreign affairs,

the Union believes that the peo-

ple's rights, through their elected

representatives, have been deni-

grated by presidential usurpation

in the conduct of such a "mas-

Teachers' -

Loyalty Oath

Struck Down

A three-judge federal court in

San Francisco on June 24 struck

down as unconstitutional a loyal-

ty oath imposed on California

teachers by the Legislature in

1969, The oath, demanded of all

applicants for a teaching creden-

tial in the public schools, re-

quired teachers to swear to sup-

port the constitutions and laws

of the United States and Califor-

nia and to "promote respect for

the flag and respect for law and

order and allegiance to the Gov-

ernment of the United States of

America."

The American Civil Liberties

Union, claiming the oath was too

vague to be understood and so

broad as to discourage the exer-

cise of First Amendment rights

by teachers, brought suit on be-

half of Kenneth P. MacKay, an

assistant professor of Meteorol-

ogy at San Jose State College.

MacKay was denied a credential

to teach a course in Meteorology

at Cabrillo Junior College when

he refused to take the oath.

In a 2-1 decision, the Court

agreed. Federal Judges Albert

Wollenberg and Lloyd Burke

held that the oath was "essen-

tialy indistinguishable" from one

struck down by. the United States

Supreme Court in 1964. Circuit

Judge Oliver Hamlin dissented,

saying that he saw nothing un-

constitutional in the oath and no

reason why any teacher should

object to taking it.

The defendants, Max Rafferty

and the members of the State

Board of Education, were per-

manently enjoined by the court

from enforcing the oath, This is

the second California teachers'

oath in three years that has been

invalidated by the Courts,

The case is being handled by

Charles Marson, ACLUNC assist-

ant staff counsel.

sive and protracted armed con-

flict in a distant and foreign

land."

The Union also recognizes that

even a declaration of war would

leave unresolved moral and civil

liberties questions inherent in

any war.

The ACLU Board of Directors

departed from its planned agenda

to devote the entire day to de-

bate its position on the war. Vot-

ing on each of the points con-

tained in the statement was over-

whelmingly in favor of the ter-

mination of the war. -

A Departure

Because of the war's "highly

detrimental effect on civil liber-

ties'? and its `deep depredations

on the Bill of Rights" for pur-

poses `"`a large part of our so-

ciety does not share,'"' the Board

voted to depart from the Union's

previous narrower focus. It em-

phasized that ``this action does

not represent basic change in the

Union's organizational role.''

The text of the statement fol-

lows:

The ACLU is deeply concerned

with the continuation and expan-

sion of the war in Southeast Asia.

The military involvement of this

country for purposes a large part

of our society does not share has,

among many adverse domestic

consequences, had a' highly detri- -

mental effect on civil liberties.

It has fostered an atmosphere of

violence' which has resulted in

the slaying of college students

and black people, violent attacks

on and by demonstration both for

and against the war, and a cli-

mate of repression in which at-

tempts have been made to stifle

criticism of the war.

War's Depredations

A brief checklist illustrates the

war's deep depredations on the

-Continued on Page 4

Gooch

Drawings

Returned |

In January the San Francisco

police, fortified with a search

warrant, confiscated seven draw-

ings by Gerald Gooch from the

Quay Gallery in San Francisco

and cited the gallery manager,

Ruth Braunstein, for "exhibiting

obscenity."

Sexual Play

The drawings seized depict pre-

adolescent children in sexual

play and received rather good

notices from local art critics, It

would be a curious person who

would have his prurient interest

aroused by the Gooch drawings.

Nevertheless, attempts to have

the drawings returned in pre-

trial state court hearings proved

unavailing. Accordingly, staff

counsel Paul Halvonik brought

suit under the federal civil rights

act seeking return of the draw-

ings contending that 1) they are

not obscene and 2) they were

seized improperly because the

search warrant was issued with-

out a prior adversary hearing

addressed to their allegedly ob-

scene character,

D.A. Submits

The District Attorney's office,

concluding that ACLUNC would

prevail for certain on the second

contention, ordered the police to

return the drawings to Mrs.

Braunstein.

State Legislature

Ban On Bussing

Heads Civil (c)

Liberties Issues

For the second time in two years, California is approach-

ing the end of its fiscal year and appears to be unable to

achieve a budget for the next. It is characteristic of the polari-

zation of the parties in Sacramento that, as of this writing, it

appears most likely that both parties will once again permit

the State to go bankrupt for a

few days rather than agree on a

budget by July 1. As the Legis-

lature rushes headlong into this

confrontation, tempers grow

short, personalities become pre-

dominant, and confusion is the

order of the day.

Bussing

This is the second installment

of the bussing controversy, ACA

41, described in this column

last month, appears to be dead in

the Assembly Elections and Con-

stitutional Amendments Commit-

tee. The author, Floyd Wake-

field (R-Southgate) appears to

have abandoned it in favor of

AB 551, one of his bills. It was

apparently the assessment of the

Republican leadership that the

constitutional amendment might

not get the required two-thirds

vote on the Assembly floor, but

a bill, requiring only a majority,

easily can. Therefore, AB 551

- was amended to be identical to

ACA 41-it prohibits the govern-

ing body of a school district

from "transporting" students for

any reason without the prior

written consent of his parents, A

procedural snag slowed up the

bill. in the Assembly Education

Committee when it was discov-

ered that the author had failed

to comply with Joint Rule 10.9,

a procedural rule of the Legis-

lature requiring all bills to be

heard within 60 days of their in-

troduction. The bill was seem-

ingly killed when Willie Brown,

Jr., of San Francisco objected

to its consideration because of

Joint Rule 10.9, When the stakes

are high enough, however, rules

can be changed, The Republican

leadership in the Assembly

sought and obtained a resolution -

suspending Rule 10.9 for the du-

ration of the session. AB 551

was then reported favorably out

of Committee and on Monday,

June 22, passed the Assembly

floor by a vote of 46 to 18 (in

a heated debate in which As-

semblyman Bagley (R- Marin),

one of three Republicans voting

against the bill, branded it a

"bigoted, damnable" measure).

The bill now goes to the Senate

Education Committee and the

Senate floor where it will pro-

voke bitter controversy but prob-

ably will pass. The Governor will

surely sign it.

Wiretapping :

In a glare of publicity th

Assembly Criminal Procedure

Committee has killed both of

the pending measures which

would authorize wiretapping and

electronic eavesdropping by Cal-

ifornia law enforcement officers.

-The most likely to pass was AB

574, by W. Craig Biddle (R-Riv-

erside), former chairman of the

committee and currently majori-

ty floor leader. After a lengthy

hearing featuring testimony from

law enforcement luminaries from

across the nation, and even

lengthier testimony by the

ACLU, the bill was held in Com-

mittee for lack of one vote.

Three weeks later, SB 185, by

Senator John Nejedly (R-Contra

Costa), which had passed the

Senate by a vote of 21 to 15, re-

ceived similar treatment. The

playing became rough as one

outraged conservative member of

the committee demanded recon-

sideration of both bills in a roll-

call vote in order publicly to ex-

pose the one Republican unwill-

ACLU NEWS

JULY, 1970

Page 2

ing to vote for the bill. . Both

measures were actively backed

by the Governor's office, which is

determined to push them until

they pass. As of now, however,

. both of them are dead.

Teachers

Two measures of consequence

to teachers appear likely to pass.

Assemblyman Conrad's AB 92,

which would permit the suspen-

- sion or dismissal of teachers who,

without "reasonable cause" fail

to meet with a scheduled class or

fail to teach the subject matter

of a scheduled class, has passed

the Assembly floor and is now in

the Senate, The measure is

aimed at claSses reconstituted af-

ter the Cambodian "incursion."

The second, AB 2026, by John

Stull (R-San Diego) attempts a

sweeping revision of the proce-

dural rights of tenured teachers.

The bill would remove the pro-

ceeding for dismissal of a ten-

ured teacher from the Superior

Court and place it in the hands

of a hearing officer and a panel

of teachers selected to judge

competence. The bill is current-

ly suspended in the Assembly

Education Committee while a se-

ries of amendments are being

negotiated.

Loyalty

Last month this column re-

ported that Senate Constitutional

Amendment 11, the "Angela Dav-

is Amendment," had received suf-

ficient votes to pass the Senate

and was sent to the Assembly.

The author is now delighted to

be able to withdraw that. Sena-

tor Mervin Dymally of Los An-

geles made a motion to recon-

sider the amendment, and the

author, apparently because he

felt his support eroding, placed

the measure on the inactive file.

This is a procedural gambit to

delay reconsideration until such

time as the author wishes it to

occur. However, Senator John

Schmitz (R-Orange County), the

only confessed John Bircher in

`the Senate, faces a special elec-

tion on July 1 which will almost

undoubtedly send him immedi-

ately to fill the congressional

seat vacated by the death of

James Utt. Whether SCA 11 can

attract the necessary two-thirds -

vote in the absence of Senator

Schmitz is unknown,

Another measure, AB 2371 by

W. Donn MacGillivray (R-Santa

Barbara) would have revived

California's criminal syndicalism

law-recently struck down by a

Federal Court-by modernizing

its language slightly. The au-

thor has abandoned the bill to

await the outcome of the appeal

from the federal decision inval-

idating the old law.

Free Speech

The Legislature appears al-

most certain to pass two bills

forbidding picketing or parading

near courthouses with the intent

to "influence" the administration

of justice. AB 2174, by Don Mul-

ford (R-Piedmont), and SB 1416,

by Senator Don Grunsky (R-Wat-

sonville), exactly repeat the lan-

guage of a Louisana ordinance

upheld as constitutional by a

divided Supreme Court five years

ago.

In addition, the Legislature

appears to be taking a dim view

of the publication of the address-

es and phone numbers of peace

officers, AB 1915, by William

Campbell (R-La Puente), would |

in its present form punish the

malicious disclosure of the ad-

dress or phone number of any

Shock Treatment

In Two Cases At

Napa St. Hospital

The ACLU has received com-

plaints during the past month of

two cases where patients at Napa

State Hospital have received

shock treatments without their

consent. In one case, it is alleged

that consent was never sought

while in the other case the patient

refused to grant his consent.

In 1967 Section 5325 of the Wel-

fare and Institutions Code was

adopted acknowledging that pa-

tients have certain rights and

requiring that such rights be

prominently posted in English

and Spanish in all facilities where

patients are detained. Subsection

(f) grants the right ``To refuse

shock treatment."'

Rights May Be Denied

The difficulty is that Section

5326 proceeds to take away what

5325 grants. It provides that "A

person's rights under Section

5325 may be denied for good

cause only by the professional

person in charge of the facility

or designee. Denial of an invol-

untarily detained person's rights

shall in all cases be entered into

the person's treatment record."

The ACLU is trying to secure

the treatment records of the pa-

tients in question and has asked

for an investigation from Dr.

James V. Lowry, Director of

Mental Hygiene.

No Procedures

Napa State Hospital has failed

to establish procedures for shock

treatments where the patient re-

fuses to consent. Apparently the

matter is left to the discretion of

the ward physician, and no one

reviews his judgment. It is ap-

parently easier for a patient to

get shock treatments at Napa

State Hospital than for a woman

to get an abortion.

The ACLU contends that the

Legislature intended that shock

treatments should he given only

in exceptional cases after careful

consideration, if at all.

peace officer. The Criminal Pro-

cedure Committee may tighten

up this language somewhat, but

the bill is unlikely to be defeat-

ed.

Women's Rights

AB 22, by Charles Warren (D-

Los Angeles), adds sex to the

list of forbidden reasons for dis-

crimination in employment. It

recently passed the Assembly

floor, but has been amended in

the Senate over the objection of

the author, to include a provision

repealing most of the protective

legislation now contained in the

statutes for women (weight and

hour limits and the like), Sev-

eral senators claim that women

deserve the burden as well as

the benefit of equal treatment,

and that the measure will not

pass the Senate without the

amendments. Whether the As-

sembly and the Senate can ever

agree on a version of the bill'

is not known.

Parole Reform

The Legislature, rarely criti-

cized for being in the forefront

of social change, is seriously

threatening two very meaningful

bills aimed at reforming the

present system for the granting

and the revocation of parole, AB

1511, by W. Craig Biddle,

changes the composition of the

Adult Authority and requires

them either to grant parole to

a prisoner the first time he is

eligible for it or to state in writ-

ing the reasons why parole was

denied. The bill sets forth per:

missable criteria for the denial

of parole. The measure passed

' the Assembly but appears in dan-

ger in the Senate Judiciary

Committee.

A more sweeping measure, AB

2324, by Frank Murhpy, Jr., (R-

Santa Cruz), would create a right `

to a Superior Court hearing with

rules of evidence and rights to

cross-examination, confrontation

and compulsory process when-

ever the facts on which a parole

revocation rest are in dispute.

-Continued on Page 4

Dangerous and Unconstitutional

ACLU Condemns

Organized

Crime Bill

The American Civil Liberties Union last month urged

members of the House Judiciary Committee to reject most of

S. 30, the Senate-passed Organized Crime Control Bill, as a

dangerous and unconstitutional threat to the civil liberties.

of all citizens.

Testifying before a Subcom-

mittee of the House Judiciary

Committee, Lawrence Speiser,

Director of the Washington D, C.

Office of the ACLU, joined with

the American Bar Association

and the Bar Association of the

City of New York in calling for

a complete revision of S, 30. Not-

ing that the bill makes vast

changes in the federal law appli-

eable to all kinds of criminal

cases, not just those involving or-

ganized crime, Mr. Speiser lik-

ened it to the work of "men of

zeal who have forgotten that a

good goal does not justify illicit

means."

Most Dangerous Provisions

Among the most dangerous

provisions of the bill:

-denial of the privilege

against self-incrimination while

permitting prosecution for

crimes which the compelled tes-

timony may reveal,

Imprison Witnesses

-power given to courts to im-

prison witnesses summarily who

refuse to testify for 36 months

or longer, without a jury trial

and without bail, z

-impairment of a defendant's

right to cross-examine witnesses

by permitting pretrial deposi-

tions to be used in lieu of "live"

testimony in criminal cases,

Wiretapping

_ -severe limitation of defend-

ant's right to object to use of

all kinds of evidence in federal

and state proceedings admittedly

obtained by violating the Consti-

tution, including wiretap, co-

erced confessions, and illegal

searches,

-use of such illegally obtained

evidence without any disclosure

to the defendant,

-vaguely defined offenses

which do not give adequate no-

tice of conduct to be subject to

criminal penalties,

Investigative Demand

-`"civil investigative demand'"'

with which the Attorney General

may demand the production of

documents from anyone he be-

lieves may have such material,

without any requirement for a

court order, and without ade-

quate safeguards against com-

pulsory self-incrimination,

-special sentencing provisions

permitting up to 30 years im-

prisonment for loosely - defined

"dangerous special offenders,'' in

the absence of meaningful due

process,

-the right given to the govern-

ment to appeal a sentence and.

have it increased.

Slow But Steady

Growth in

Membership

As we go to press, ACLUNC

has enrolled 7040 members since

the beginning of the fiscal year

on November 1. This compares

with 6844 a year ago and a net

gain of about 200 members,

ACLUNC ended the last fiscal

year with a membership of 7805.

Membership in the Berkeley/Al-

bany area has declined 20% in

the past few years for a variety

of reasons. Otherwise, there

seems to be a slow but steady

increase of members in most

areas. It has taken about four

years to climb from 7000 to the

present 8000 members,

Ralph B. Atkinson

Albert M. Bendich

Prof. John Edwards

Jerome B. Falk, Jr.

Robert Greensfelder

Rey. Aron S. Gilmartin

Sam Greenberg

Evelio Grillo

Michael B. Harris

Francis Heisler

Neil F. Horton

Honorary Treasurer:

Joseph S. Thompson

Honorary Board Member:

Sara Bard Field

Mrs. Gladys Brown

Mrs. Paul Couture

Mrs. Margaret C. Hayes

Prof. Carlo Lastrucci

John J. Eagan

Joseph Eichler

Dr. H. H. Fisher

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN: Howard H. Jewel

VICE-CHAIRMAN: Prof. Van D. Kennedy

Helen Salz

SEC`Y-TREAS.: Howard A. Friedman

EXECUTIVE DIRECTOR: Ernest Besig

Anthony G. Amsterdam Clifton R. Jeffers

Bern Jacobson

Daniel N. Loeb

Ephraim Margolin.

Dr. John N. Marquis

John R. May

Richard L. Mayers

Martin Mills, M.D.

Regino Montes -

Prof, Robert M. O'Neil

Mrs. Esther Pike

Engene N. Rosenberg

GENERAL COUNSEL: Wayne M. Collins

STAFF COUNSEL: Paul N. Halvonik

ASS`T STAFF COUNSEL and LEGIS. REP.: Charles C. Marson

ADMINISTRATIVE ASSISTANT: Mrs. Pamela S. Ford

CHAPTER DIRECTOR: Carol R. Weintraub

Committee of Sponsors

Mrs. Paul Holmer

Mrs. Mary Hutchinson Prof. Wallace Stegner

Prof. Wilson Record

Prof. Ernest Hilgard Dr. Norman Reider

Mrs. Muriel Roy

Prof. John Searle

Warren H. Saltzman

Prof. H. K. Schachman

Mrs. Alec Skolnick

Stanley D. Stevens -

Michael Traynor

Justin Vanderlaan

Don Vial

Richard J. Werthimer

Joe J. Yasaki

Dr. Marvin J. Naman

Mrs. Thecdosia Stewart

Re. Rev. Sumner Walters

Richard Johnston

Roger Kent

Mes. Ruth Kingman

Prof. Theodore Kreps

Seaton W. Manning

Rev. Robert W. Moon

Clarence E. Rust

Prof. Hubert Phillips

Norman Lezin

a SS

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, California

ERNEST BESIG.. . Editor

503 Market Street, San Francisco, California 94105, 433-2750

Subcription Rates - Two Dollars and Fifty Cents a Year

Twenty-Five Cents Per Copy

Unlawful Search and Seizure

Challenge to

Anti-Panther

`Inspection' Law

A few years ago an obscure group of militant blacks,

calling themselves the Black Panther Party for Self De-

fense, decided that a visit to the state capitol in opposition

to gun control legislation might provide them with some

publicity. They arrived in Sacramento armed, as then was

their custom, and attempted to

find their way to the gallery. An

enterprising reporter misdirect-

ed them and they found them-

selves, guns and all, on the floor

of the lower house while it was

in session. The Panthers got

their publicity and the assembly

got a shock, The baroque lobby-

ing style of the Panthers, not

surprisingly, proved unsuccess-

ful, The bill they opposed

passed the legislature with re-

markable rapidity but not before

a section designed to "deal with"

the Panthers was added to it.

Loaded Firearms

The "Panther Rider" to the

gun control bill prohibited the

carrying of loaded firearms in

certain areas including the state

capitol, college campuses and

"any public place or on any pub-

lie street in an incorporated

city . . ." The proscription only

ran to "loaded'' firearms because

there are, after all, persons other

than Panthers who like `to carry

firearms in such places and the

National Rifle Association is a

lobby with considerable muscle.

But if only loaded firearms are

to be prohibited how will the

police know who is breaking the

law? How will the police be

able to ferret out the Panthers

while leaving the National Rifle

Association members unmolest-

ed? The legislature solved that

problem. by repealing the law

against unlawful search and sei-

zures where firearms are con-

cerned. It provided:

"In order to determine

whether or not a firearm is

loaded . . . peace officers are

_ authorized to examine any fire-

arm carried by anyone on his

person or in a vehicle while

in any place or on the grounds

of any place in or on which

the possession of a loaded fire-

arm is prohibited . _ . Refusal

`to allow a police officer to in-

spect a firearm pursuant to the

provisions of this section con-

stitutes probable cause for ar-

rest..."

Marijuana Case

James DeLong of Contra Cos-

ta County was one of the first

persons to be searched pursuant

to the Panther amendment to the

gun control law. He was ob-

served placing a rifle in the

trunk of an automobile, Police

intercepted him and exercised

their "power to inspect" by

opening the trunk to his vehicle,

over his objection, and inspecting

his rifle. The rifle proved to be

unloaded but the police discov-

ered some marijuana in the

trunk, DeLong was tried and

convicted for possession of mari-

juana, His trial attorney, Depu-

ty Public Defender Stewart Sa-

fine, tried unsuccessfully to have

the evidence suppressed on the

grounds that it was the product

of an unlawful search and sei-

zure. Safine has appealed De-

Long's conviction, asking the

State Court of Appeal to hold

the legislature's authorization of

police "inspection" an unconstfi-

tutional infringement of Fourth

Amendment rights. In support

of that position, ACLUNC is par-

ticipating in DeLong's case as a

friend-of-the-court.

`Armed Camps'

The State Attorney General

has attempted to justify the law

on the ground that it is needed

to insure that campuses do not

become "armed camps." In re-

sponding to that argument, staff

counsel Paul Halvonik states in

his brief that:

"The `armed camp' justifica-

tion is interesting, if inflated,

rhetoric, but it proves too

much, If the Fourth Amend-

ment can be ignored in the

name of `community danger'

then it is not much protection

against state intrusions into

privacy. In order to insure

that our campuses are not.

`armed camps' may the Legis-

lature provide that all students

must submit to dragnet search-

es of their persons and prop-

erty? And why limit our con-

cern to campuses? In order to

insure that our communities do

not become `armed camps, -

may the Legislature provide

that all citizens must submit

to a search of their persons

and houses? These questions,

we hope, answer themselves.

The protections of the Fourth

Amendment do not extend...

only to frivilous invasions of

privacy; the protections do not

evaporate when government is

concerned with discovering ev-

idence of an important crime

or wishes to prevent serious

anti-social acts, The Bill of

Rights protects individual lib-

erty by erecting a barrier

against governmental action.

Government, quite naturally;

considers the barriers nui-

sances and `technicalities' and

always justifies its failure to

observe them on the plea that

it is for our own good. The

government official is yet to

be found who will say (or

even believe) that he is trench-

ing on fundamental liberties

in any cause other than a just

cause. But the beneficent pur-

pose is beside the point, The

Fourth Amendment stands as

a barrier to intrusions into our

privacy unless there is prob-

able cause to believe we are

committing an unlawful act.

`Pre-emptive strikes' by the po-

lice, no matter what the evil

they wish to prevent, are pre-

cisely what the Fourth Amend-

ment prohibits.

"The Legislature, if it wishes

to see no firearms on campus,

can prohibit the carrying of

firearms on campus, But it

cannot permit unloaded fire-

arms to be carried on campus

and then supplement that per-

missiveness with a power to in-

spect weapons and vehicles in

an exploratory search to deter-

mine whether weapons may be

loaded."

No Probable Cause

ACLUNC urges the Court to

strike down the "inspection"

law because it provides for

searches when there-is no cause

to believe a crime is being com-

mitted. Moreover, that portion of

the law which provides for ar-

rest of anyone who refuses to

consent to a search is. challenged

on the ground that it punishes

se for exercising his right to

privacy. Halvonik observes: "if

one consents to a search he has

waived his Fourth Amendment

rights; if by refusing to consent

he forfeits his Fourth Amend-

ment rights there is not much left

of the protections, Indeed there

is nothing left of the Fourth

Amendment, it is but an adorn-

ment expressing congenial senti-

ments."? The DeLong case has

been taken under submission for

decision by the Court of Appeal,

a decision that is expected with-

in the next 90 days.

Federal Court

To Await

Police Reform

A police riot occurred in San

Jose on May 4, 1970. A peaceful

rally of student protestors was

broken up by police, both uni-

formed and non-uniformed, who

beat students and newspaper-

men. with their gloved fists, clubs

. and blackjacks and destroyed and

confiscated cameras and tape re-

corders, A federal civil rights

suit seeking an injunction

against lawless police behavior

was brought by -ACLUNC's San-

ta Clara Valley Chapter and

Chapter Chairman Professor El-

dred E, Rutherford.

Hearing Held

A hearing on the plaintiff's

motion for preliminary injunc-

tion was held before Federal

District Judge Robert F. Peck-

ham, ACLU volunteer attorney

Howard Anawalt of the Univer-

sity of Santa Clara Law School

presented a remarkably persua-

sive case. In addition to eye-

witness testimony he introduced

into evidence television tapes of

the incident, Moreover, he intro-

duced into evidence television

tapes of the incident. Moreover,

the defendants testimony was

rather weak, For example, po-

licemen denied that they had de-

stroyed cameras but admitted

that they had confiscated cam-

eras and exposed the film con-

tained therin.

Judge Peckham has already is-

sued his first ruling in the case.

Observing that plaintiffs' allega-

tions are ``grave' 'he has decided

to hold the request for injunctive

relief in abeyance while the po-

lice attempt to clean, house. `"Al-

though we have indicated the se-

riousness with which we view

plaintiffs' allegations,' Judge

Peckham ruled, "it is perfectly

apparent that an injunction

against the police force, even

when it does no more than ad-

monish them to obey the law, is

a drastic remedy, The Court is

informed that Chief Blackmore

is presently conducting an ad-

ministrative investigation of the

events in question. The Court be-

lieves that the soundest course

of action to follow under the

circumstances would be to hold

the present application for a pre-

liminary injunction in abeyance

for a reasonable time while this

investigation is carried out."

New Regulations

In his decision Judge Peckham

also strongly suggested that the

police department should adopt

new regulations that do more

than admonish police officers to

obey the law. If the new regula-

tions are to blunt the suit, the

San Jose police force will have

to negotiate with the Santa Clara

Valley Chapter as to their con-

tent.

Two Marijuana

Puffs Cause

Nat. Problem

The Naturalization Service in

San Francisco is holding up the

petition of a student because he

on two occasions had a puff of a

marijuana cigarette. On both oc-

casions he was one of a group of

persons when someone passed

around a marijuana cigarette.

He didn't pay for his puffs and

he doesn't know how the mari-

juana was acquired. He took the

puffs because he was curious to

find out what would happen.

When. he was asked whether he

had ever smoked marijuana he

freely admitted it. His brief ad-

missions were reduced to a

signed statement and a special

hearing was called at which he

was represented by Ernest Besig.

The Naturalization Service has

not yet made a recommendation

in the case because its position

has to be reviewed by the Region-

al Office in San Pedro. - The

chances are, however, that the

facts will be submitted to the

court with an unfavorable recom-

mendation on the ground that the

applicant is not a person of good

moral character.

Banned Books

Constitutional

Victories For

Prison Inmates

Three and one-half years of ACLUNC efforts in support

of the constitutional rights of prison inmates have resulted

in sweeping court victories.

The story begins in October of 1966 when the staff coun-

sel Marshall Krause wrote to the Department of Corrections

protesting a new regulation which

would have reduced all prison

law libraries to a very few ``ap-

proved"' legal volumes and pro-

hibited prisoners from possessing

any books not appearing on the

``approved"' list. The regulation,

Krause observed, smacked of

book-burning.

The regulation never went into

effect. A group of San Quentin

inmates brought a federal suit

challenging it and other regula-

tions which impeded their access

to legal materials, The Court

appointed counsel on their be-

half, John Wahl of San Francis-

co, who successfully obtained an

order from Judge Wollenberg

which prohibited the removal of

disapproved books, The restrain-

ing order turned out to be the

only victory the prisoners were

to have for two years, The At-

torney General moved to dismiss

the case (entitled Gilmore v.

Lynch) and deny Wahl's motion

for the convening of a three-

judge court. At Wahl's request,

ACLUNC joined as a friend-of-

the-court in resistance to the mo-

tions, After extensive briefing

and oral argument, Judge Wol-

lenberg ruled that no "substan-

tial federal question" was pre-

sented by the suit and granted

the motion was dismiss.

Wahl, supported by staff coun-

sel Paul Halvonik, appealed the

decision to the United States

Court of Appeals. In 1968 that

Court reversed Judge Wollen-

berg and ordered that a three-

judge court be convened to con-

sider the suit, The United States

Supreme Court declined the At-

torney General's petition for re-

view of the case and, after three

years of litigation, the three-

judge court was finally con-

vened. Last month that court,

composed of Federal District

Judges Wollenberg and Zirpoli

and Court of Appeals Judge Dun-

iway, ruled in the prisoners' fav-

or.

The Court held the restricted

list of "approved" law books

"would offer meager fare to a

criminal lawyer" and unconstitu-

tionally inhibited the constitu-

tional right of ,access to the

courts, And then the Court went

further. It held that the state

has a positive duty to provide

indigent prisoners with adequate

means to bring their legal griev-

ances to the attention of courts.

It did not decide what means

the prison system should adopt

(whether an expanded law li-

brary or a system of legal as- .

_ sistance for inmates) instead giv-

ing the authorities. until Sep-

tember 1 to submit new regula-

tions that will promote prison-

er access to the Court.

The only disappointment in the

Gilmore decision was the Court's ~

refusal to hold unconstitutionai a

San Quentin regulation which

prohibits inmates from possess-

ing legal materials which do not

"pertain" to their own cases. The

practical effect of the rule is

to make it impossible for in-

mates to assist one another in

legal matters even though the

U.S. Supreme Court has held

that, in the absence of a superior

legal system, inmates have a con-

stitutional right to assist one an-

other in the preparation of writs.

The Federal Court reasoned that

the rule could be "interpreted"

consistently with the Constitu-

tion.

Future "interpretations" ap-

' peared a likely source of future

litigation but, as matters devel- JULY, 1970

oped, the problem was illusory.

Within a few weeks the Califor-

nia Supreme Court had held the

regulation unconstitutional, In

the case of In re Harrell, Justice

Sullivan, speaking for a unan-

imous Supreme Court, said:

"We think it manifest that

the particular rule here in

question, which prohibits one

inmate from possessing the le-

gal papers of another, has a

severe effect upon the liabil-

ity of an illiterate or unedu-

cated prisoner to gain assist-

ance from a more gifted one.

Even assuming the existence

of extensive opportunity for

prisoners to `consult' one an-

other on legal matters, the fact

remains that in most cases the

kind of assistance which is

sought by the less gifted in-

mate is the actual drafting of

an application for relief by the

other. Clearly one cannot very

well draft an application for

relief without possessing at

least one legal paper `pertain-

ing' to another, namely, the

very application itself. More-

over, reference to other papers

-such as transcripts and prior

applications for relief-is a

practical necessity, The rule,

as we read it, would require

that all such drafting take

place in the physical presence ~

of the inmate seeking to be

aided so that he can retain

`possession' of legal papers

`pertaining' to him. This, we

think, is wholly impractical

and adverse to the purpose to

be served by permitting mu-

tual assistance."

ACLUNC also participated as a

friend - of - the - court in Harrell's

case when his attorney, James T.

Fousekis of San Francisco, re-

quested support.

Ingram Case

The Harrell decision was com-

bined with another case, that of

- Howard Ingram, who was direct-

ly represented by staff counsel

Paul Halvonik. The Ingram case

raised issues of prisoner rights

distinct from the others for it

dealt not with the right to pos-

sess legal materials but the right

to read and receive literature in

general, Ingram's claim was

based on a 1968 amendment to

the Penal Code which had been

In collections

ACLU-NC News: 1970

Details

Title: vol. 35, no. 7 (July, 1970)
Creator: American Civil Liberties Union of Northern California
Date: 1970 July
Identifier: ACLUN_0408
Genre: newspapers
Physical description: 40.5 x 28 cm
Publisher: San Francisco (Calif.): American Civil Liberties Union of Northern California
Preferred citation: ACLU of Northern California News vol. 35, no. 7, 1970 July; PER ACLUN; California Historical Society.
Rights statement: In Copyright
Publication rights: Copyright (or related rights to publicity and privacy) for materials in this collection, created by the American Civil Liberties Union of Northern California, was not transferred to the California Historical Society (CHS). Permission for reproduction or publication of materials in this collection beyond that allowed by fair use must be secured from the copyright holder.
Topical subject(s): Vietnam War, 1961-1975
Searches and seizures
Criminal justice
Drug policy
Criminal syndicalism
Black Panther Party
Academic freedom
Reproductive rights
Police practices
Named subject(s): Bendich, Albert M.
Besig, Ernest
Davis, Angela Y. (Angela Yvonne) 1944-
Falk, Jerome B
Halvonik, Paul
Heisler, Francis
Margolin, Ephraim
Marson, Charles
Salz, Helen Arnstein
Speiser, Lawrence
Stegner, Wallace
Warnick, Jack
California. State Board of Education
American Bar Association
Geographical subject(s): Sacramento (Calif.)
San Quentin (Calif.)
Berkeley (Calif.)
Presidio of San Francisco (Calif.)
Collection identifier: PER ACLUN