United States v. Mechanic

• Citation: 454 F.2d 849
• Decision Date: 13 January 1972
• Docket Number: No. 71-1022,71-1117.,71-1022
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Howard MECHANIC, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lawrence KOGAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

454 F.2d 849 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Howard MECHANIC, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence KOGAN, Defendant-Appellant.

Nos. 71-1022, 71-1117.

United States Court of Appeals, Eighth Circuit.

December 22, 1971.

Rehearing and Rehearing Denied January 13, 1972.

Louis Gilden, St. Louis, Mo., for appellants.

Jerry J. Murphy, Asst. U. S. Atty., St. Louis, Mo., for appellee.

David A. Lander, University, Mo., for American Civil Liberties Union of Eastern, Mo., for amicus curiae.

Before VAN OOSTERHOUT, HEANEY and ROSS, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 13, 1972.

HEANEY, Circuit Judge.

The defendants, Howard Mechanic and Lawrence Kogan, bring direct appeals from their convictions by juries for violation of 18 U.S.C. § 231(a) (3), one of the anti-riot provisions of the Civil Obedience Act of 1968. Mechanic was sentenced to five years in the custody of the Attorney General; Kogan was sentenced under the provisions of 18 U.S.C. § 4208 (b).

Although the defendants were tried separately, substantially the same witnesses were produced and the same evidence adduced at each trial.

The evidence showed that on the evening of May 4, 1970,¹ a protest demonstration took place on the campus of Washington University, St. Louis County, Missouri. Following this demonstration, a large number of protesters marched to the vicinity of the campus's Air Force and Army R.O.T.C. buildings. Estimates of the size of the crowd at the R.O.T.C. buildings ranged from one hundred to three thousand persons; most estimates were between five hundred and one thousand demonstrators. The demonstrators began throwing stones at the R.O.T.C. buildings.

Shortly after midnight, a fire, which had apparently been set, broke out in the Air Force R.O.T.C. building. A fire truck came to the scene, but retreated from the area of the fire under an intense barrage of rocks, bottles, and other items thrown by the crowd. A second fire truck met the same fate and also retreated.

Shortly after midnight, a third fire truck came on the scene. Fifteen St. Louis County Police Officers arrived and formed a protective line between the firemen and the demonstrators. The police were dressed in riot gear and were easily identifiable as law officers. Nevertheless, the fire truck, the firemen, and the police officers were continually subjected to a barrage of bricks, stones, glass, and cherry bombs. One police officer was slightly injured when struck by debris from an explosion. The third fire truck eventually extinguished the blaze in the R.O.T.C. building at around 1:00 A. M. on May 5.

A Washington University Law School student, Donald Bird, stood about five or six feet from the defendant Howard Mechanic at the height of the fire. He testified that he saw Mechanic propel a cherry bomb in the direction of the police line and saw it explode at or about the knee level of one of the patrolmen. Bird also testified that he saw Lawrence Kogan, standing a few feet from Mechanic, throw a cherry bomb which exploded five or six feet from a police officer.

The evidence clearly established that many persons committed acts of violence during the late night and early morning hours of May 4 and 5, 1970. In addition to the throwing of the previously described objects and the burning of the Air Force R.O.T.C. building, the Army R.O.T.C. building was ransacked. At least one injured person was taken to the hospital by ambulance. Several witnesses testified that they were injured or feared for their safety. There was no evidence that either of the defendants undertook any act of violence other than the throwing of the cherry bombs.

The defendants raise several issues on appeal. We consider them separately.

CONSTITUTIONAL POWER OF CONGRESS TO ENACT 18 U.S.C. § 231(a) (3)

The statute under which the defendants were convicted reads:

"(3) whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function—

"Shall be fined not more than $10,000 or imprisoned not more than five years, or both."

The defendants contend that this statute is invalid because it exceeds Congress's power under the Commerce Clause.

We need not determine whether Congress has power to reach the conduct involved in this case under the Commerce Clause, since the statute is also directed at such activity when it affects " * * * the conduct or performance of any federally protected function." The case was tried on the theory that the civil disorder affected a federally protected function, namely the R.O.T.C. program and the buildings housing it. We must determine whether, on this basis, Congress has power to punish the defendants' activities in this case. See, Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960).

A federally protected function is defined by 18 U.S.C. § 232(3) as:

"* * * any function, operation, or action carried out, under the laws of the United States, by any department, agency, or instrumentality of the United States or by an officer or employee thereof * * *."

There is no question that the R.O.T.C. programs and their supporting facilities fall within the statutory definition of "federally protected function." Congress, pursuant to its constitutional power to raise armies, has created the R.O. T.C. programs, 10 U.S.C. § 2101 et seq., and Congress has the power to protect them from destruction. It has chosen to do so by assuring that persons, charged with protecting R.O.T.C. installations from destruction by fire, be permitted to perform their duties unimpeded.

OTHER CONSTITUTIONAL QUESTIONS

The defendants contend that the statute under which they were convicted is unconstitutional in four additional ways:

(1) it violates the First Amendment in that it prohibits constitutionally protected speech;

(2) it is vague and overly broad;

(3) it does not require the government to prove criminal intent;

(4) it does not require the government to prove that the defendants had knowledge of the official status of the individuals against whom their acts, or attempted acts, were directed.

We consider these contentions in order.

First Amendment

The short answer to the defendants' contention that the statute prohibits protected speech is that, as we read it, § 231(a) (3) has no application to speech, but applies only to violent physical acts.

The operative words of the statute are "whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer * * *". Thus, the section applies only to a person who acts to impede, obstruct, or interfere with an official described in the statute. National Mobilization Com. to End War in Viet Nam v. Foran, 411 F.2d 934, 937 (7th Cir. 1969).

This Court stands ready to protect constitutionally guaranteed activities or conduct from interference by either the State or private individuals. We are willing to do so even though the conduct may be offensive to others. See, Action et al., Percy Green v. Rowland E. Gannon et al., 450 F.2d 1227 (1971). But the conduct involved here is not entitled to constitutional protection.

The First Amendment has not been extended to protect rioting, inciting to riot, or other forms of physical violence. National Mobilization Com. to End War in Viet Nam v. Foran, 297 F.Supp. 1, 4 (N.D.Ill.1968), aff'd 411 F.2d 934 (7th Cir. 1969). See, Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295 (1951); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Nor has it been construed to protect, as symbolic speech, the act of throwing cherry bombs at police officers and firemen. See, United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966).

The United States District Court for the Northern District of Illinois considered the argument that § 231(a) (3) and § 232, the accompanying definitional section, prohibit constitutionally protected free speech and reached the same result that we do here. National Mobilization Com. to End War in Viet Nam v. Foran, supra, at 297 F.Supp. 1, aff'd 411 F.2d 934.

Is Section 232 Vague and Overly Broad?

The defendants urge that the statute is vague and overly broad because the term "civil disorder" is inadequately defined. Under § 231(a) (3), the conduct charged in this case is unlawful only if the policeman or fireman was engaged in his duties incident to and during the commission of a "civil disorder". As defined by § 232,

"(1) The term `civil disorder\' means any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual."

The defendants maintain that a "public disturbance" may cover meetings, demonstrations, and other constitutionally protected activities. They cite cases in which statutes, which make criminal conduct constituting a "public disturbance," have been found unconstitutional on the grounds of vagueness and overbreadth. The essence of their argument is that

"* * * Any constitutionally protected expression of views in a speech, an assembly, a demonstration, which invokes that quality of `hazardous freedom\' described by the Supreme Court in Tinker v. Des Moines School District,

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