Bissonette v. HaigBissonette v. Haig
- Reporters:
- ,
- Before:
- Arnold, Phillips, John R. Gibson
This is an action for damages caused by defendants’ alleged violations of the Constitution of the United States. The complaint alleges, among other things, that the defendants seized and confined plaintiffs within an “armed perimeter” by the unlawful use of military force, and that this conduct violated not only a federal statute but also the
I.
This case arises out of the occupation of the village of Wounded Knee, South Dakota, on the Pine Ridge Reservation by an armed group of Indians on February 27, 1973. On the evening when the occupation began, members of the Federal Bureau of Investigation, the United States Marshals Service, and the Bureau of Indian Affairs Police sealed off the village by establishing roadblocks at all major entry and exit roads. The standoff between the Indians and the law-enforcement authorities ended about ten weeks later with the surrender of the Indians occupying the village.1
In February 1975, the plaintiffs, most of whom at the time of the occupation were residents of the Pine Ridge Indian Reservation, brought this action in the District Court for the District of Columbia alleging that the defendants, who were military personnel or federal officials, conspired to seize and assault them and destroy their property in violation of several constitutional and statutory provisions. In 1981, after the case was transferred to the District of South Dakota,2 the defendants renewed their motion to dismiss for failure to state a claim. The District Court held that no private right of action exists under
II.
In their amended complaint, plaintiffs allege three sets of substantive claims. First, they claim that they were unreasonably seized and confined in the village of Wounded Knee contrary to the
These allegations must be viewed against the background of the Posse Comitatus Act of 1878,
Sec. 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.
A.
The first two sets of claims raise the question whether a search or seizure, otherwise permissible, can be rendered unreasonable under the
The Supreme Court has recently indicated that a seizure can be unreasonable even if it is supported by probable cause. Tennessee v. Garner, --- U.S. ----, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985) (seizure with deadly force of fleeing burglar who was apparently unarmed is unreasonable under the
Civilian rule is basic to our system of government. The use of military forces to seize civilians can expose civilian government to the threat of military rule and the suspension of constitutional liberties. On a lesser scale, military enforcement of the civil law leaves the protection of vital
The interest in limiting military involvement in civilian affairs has a long tradition beginning with the Declaration of Independence and continued in the Constitution, certain acts of Congress, and decisions of the Supreme Court. The Declaration of Independence states among the grounds for severing ties with Great Britain that the King “has kept among us, in times of peace, Standing Armies without Consent of our Legislature ... [and] has affected to render the Military independent of and superior to the Civil power.” These concerns were later raised at the Constitutional Convention. Luther Martin of Maryland said, “when a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army.”7
The Constitution itself limits the role of the military in civilian affairs: it makes the President, the highest civilian official in the Executive Branch, Commander in Chief of the armed services (
Congress has passed several statutes limiting the use of the military in enforcing the civil law. As already noted,
The Supreme Court has also recognized the constitutional limitations placed on military involvement in civilian affairs. A leading case is Ex parte Milligan, 4 Wall. 2, 124, 71 U.S. 2, 124, 18 L.Ed. 281 (1866), a Civil War case where the Court held that military commissions had no authority to try civilians in States not engaged in rebellion, in which the civil courts were open. More recently, in Laird v. Tatum, 408 U.S. 1, 15-16, 92 S.Ct. 2318, 2326-27, 33 L.Ed.2d 154 (1972), statements the Court made in dicta reaffirm these limitations:
The concerns of the Executive and Legislative Branches ... reflect a traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history and found early expression, for example, in the
Third Amendment‘s explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military. Those prohibitions are not directly presented by this case, but their philosophical underpinnings explain our traditional insistence on limitations on military operations in peacetime. Indeed, when presented with claims of judicially cognizable injury resulting from military instrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation‘s history or in this Court‘s decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.
The governmental interests favoring military assistance to civilian law enforcement are primarily twofold: first, to maintain order in times of domestic violence or rebellion; and second, to improve the efficiency of civilian law enforcement by giving it the benefit of military technologies, equipment, information, and training personnel. These interests can and have been accommodated by acts of Congress to the overriding interest of preserving civilian government and law enforcement. At the time of the Wounded Knee occupation, Congress had prohibited the use of the military to execute the civilian laws, except when expressly authorized.
We believe that the limits established by Congress on the use of the military for civilian law enforcement provide a reliable guidepost by which to evaluate the reasonableness for
B.
The District Court took the view that there is no “separate private cause of action for damages for the involvement of military personnel simply because they were military personnel....” Lamont v. Haig, supra, 539 F.Supp. at 560 (emphasis in original). In large part, we agree. As will be seen shortly when we come to discuss plaintiff‘s allegations under the Due Process Clause of the
Plaintiffs’
In United States v. Casper, 541 F.2d 1275 (8th Cir.1976) (per curiam), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977), we specifically held that military assistance given to civilian authorities at Wounded Knee did not violate this statute. (Surprisingly, neither side cites or discusses Casper in its brief on this appeal.) In Casper, several defendants who were convicted of attempting to interfere with United States Marshals and FBI agents during the Wounded Knee disorder appealed their convictions on the ground that the District Court had erred in rejecting their defense that the federal officials allegedly interfered with had been acting in violation of the Posse Comitatus Act. Specifically, the District Court had found on a stipulated record that the following activities did not violate the Act: the use of Air Force personnel, planes, and cameras to fly surveillance; the advice of military officers in dealing with the disorder; and the furnishing of equipment and supplies. United States v. McArthur, 419 F.Supp. 186, 194-95 (D.N.D.1976). We affirmed “on the basis of the trial court‘s thorough and well-reasoned opinion.” 541 F.2d at 1276.
Plaintiffs in the present civil action were not parties in this prior criminal case, nor were defendants here, with perhaps one or two exceptions, among the federal officials with whom interference was charged in the criminal prosecution. Therefore, our judgment in Casper does not estop plaintiffs to relitigate the question whether a violation of the Posse Comitatus Act occurred at Wounded Knee. Casper does, however, stand as a binding precedent in this Circuit on the interpretation of the Act. Therefore, unless plaintiffs now allege that the defendants took actions that went beyond those alleged in the Casper case, the actions alleged in the complaint now before us cannot violate the Act.
In Casper, quoting from Judge VanSickle‘s opinion for the District Court, 419 F.Supp. at 194, we approved the following standard for determining whether a violation of the Posse Comitatus Act had occurred:
Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a manner that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature, either presently or prospectively?
541 F.2d at 1278. This formulation, see 419 F.Supp. at 194 n. 4, is based on language found in the Supreme Court‘s opinion in Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 2324, 33 L.Ed.2d 154 (1972). Laird involved a claim that
When this concept is transplanted into the present legal context, we take it to mean that military involvement, even when not expressly authorized by the Constitution or a statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids, or compels some conduct on the part of those claiming relief. A mere threat of some future injury would be insufficient. In addition, our affirmance of the District Court‘s judgment in McArthur and our description of its opinion as “thorough and well reasoned,” 541 F.2d at 1276, must also mean that the mere furnishing of materials and supplies cannot violate the statute. The same thing is true, as we have previously noted, of the use of military personnel, planes, and cameras to fly surveillance and the advice of military officers in dealing with the disorder, advice, that is, as distinguished from active participation or direction.
The question becomes, then, whether the present complaint alleges more than these kinds of activities. “In appraising the sufficiency of the complaint, we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) (footnote omitted). We are not persuaded that this stringent requirement for dismissal on the pleadings has been met here. We of course have no way of knowing what plaintiffs would be able to prove if this case goes to trial, but the complaint, considered simply as a pleading, goes well beyond an allegation that defendants simply furnished supplies, aerial surveillance, and advice. It specifically charges that “the several Defendants maintained or caused to be maintained roadblocks and armed patrols constituting an armed perimeter around the village of Wounded Knee....” Paragraph 17(a), D.R. 33. Defendants’ actions, it is charged, “seized, confined, and made prisoners [of plaintiffs] against their will....” Paragraph 18, D.R. 34. These allegations amount to a claim that defendants’ activities, allegedly in violation of the Posse Comitatus Act, were “regulatory, proscriptive, or compulsory,” in the sense that these activities directly restrained plaintiffs’ freedom of movement. No more is required to survive a motion to dismiss. We hold, therefore, that plaintiffs’ first set of claims, alleging an unreasonable seizure in violation of the
As to the second set of claims, we hold that they do not state a cause of action. In these claims, set out in paragraph 24 of the complaint, D.R. 38, plaintiffs charge that they were searched and subjected to surveillance against their will by aerial photographic and visual search and surveillance. As we have already noted, Casper holds that this sort of activity does not violate the Posse Comitatus Act. It is therefore not “unreasonable” for
C.
The third set of claims invokes the Due Process Clause of the
Most of the other cases relied on by plaintiffs, as the District Court persuasively explained, 539 F.Supp. at 559-60, are ordinary tort actions in which the defendants set up as a defense that they were acting pursuant to military authority. Plaintiffs then contested the validity of this defense, and the courts sided with plaintiffs, but these holdings seem to be based rather on the theory that under the circumstances of each case the assertion of military power was simply unauthorized, rather than on any limitation on military power stemming from the Due Process Clause of the
Our decision to reject plaintiffs’ due-process theory is reinforced by the knowledge that all of the proof relevant under such a theory will still come in if and when the
III.
The defendants argue that the dismissal of the plaintiffs’ claims can be affirmed on two alternative grounds: first, that certain of the defendants were not properly served; second, that the action is barred by the statute of limitations. We decline to reach either issue at this time. The service-of-process issue has not been ruled on by the District Court. No materials on the issue were included in the designated record, and no factual findings of the District Court with respect to it are available for review. The limitations question is also not sufficiently developed for appellate review. It is primarily based on the claim that the plaintiffs’ action was not commenced within the statutory period because the defendants have not been properly served. This argument again requires reference to materials concerning service that are not part of the record on appeal. Defendants are of course free to renew these defenses on remand.
IV.
In short, we hold that with one exception the District Court correctly ruled that the complaint failed to state a claim. This exception relates to the allegation that defendants seized and confined plaintiffs within an armed perimeter, that these actions were not authorized by law and were a violation of the Posse Comitatus Act, and that, therefore, an “unreasonable” seizure within the meaning of the
Reversed and remanded with instructions.