Bissonette v. Haig

• Citation: 776 F.2d 1384
• Decision Date: 12 November 1985
• Docket Number: No. 84-2617,84-2617
• Parties: Gladys BISSONETTE, Ellen Moves Camp, Eugene White Hawk, Marvin Ghost Bear, Edgar Bear Runner, Oscar Bear Runner, Severt Young Bear, Rachel White Dress, Helen Red Feather, Eddie White Dress, Vicki Little Moon, Madonna Gilbert, Lorelei Means, and Carla Blakey, Appellants, v. Alexander HAIG, Richard G. Kleindienst, Joseph T. Sneed, Charles D. Ablard, Joseph H. Trimbach, Ralph E. Erickson, Harlington Wood, Jr., Kenneth Belieu, Rolland Gleszer, Edmund Edwards, John Hay, and Volney F. Warner, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1384

776 F.2d 1384

54 USLW 2288

Gladys BISSONETTE, Ellen Moves Camp, Eugene White Hawk Marvin Ghost Bear, Edgar Bear Runner, Oscar Bear Runner Severt Young Bear, Rachel White Dress, Helen Red Feather Eddie White Dress, Vicki Little Moon, Madonna Gilbert Lorelei Means, and Carla Blakey, Appellants, v. Alexander HAIG, Richard G. Kleindienst, Joseph T. Sneed, Charles D. Ablard, Joseph H. Trimbach, Ralph E. Erickson, Harlington Wood, Jr., Kenneth Belieu, Rolland Gleszer, Edmund Edwards, John Hay, and Volney F. Warner, Appellees.

No. 84-2617.

United States Court of Appeals, Eighth Circuit.

Submitted June 11, 1985.

Decided Nov. 12, 1985.

David E. Engdahl, Seattle, Wash., for appellants.

Anne M. Gulyassy of the Dept. of Justice, Washington, D.C., for appellees.

Before ARNOLD, Circuit Judge, PHILLIPS, ^* Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

ARNOLD, Circuit Judge.

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 Fourth Amendment. The use of federal military force, plaintiffs argue, without lawful authority and in violation of the Posse Comitatus Act, 18 U.S.C. Sec. 1385, was an "unreasonable" seizure of their persons within the meaning of the Fourth Amendment. We hold that the complaint states a claim upon which relief may be granted. The judgment of the District Court, dismissing the complaint with prejudice for failure to state a claim, will therefore be reversed, and the cause remanded for further proceedings consistent with this opinion.

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 18 U.S.C. Secs. 2, 241, 371, or 1385, ³ and that no claim was stated under the Constitution merely because the persons who allegedly injured the plaintiffs were military personnel instead of civilians. Lamont v. Haig, 539 F.Supp. 552 (D.S.D.1982). The Court gave the plaintiffs 40 days to file an amended complaint, which they did, and the Court again dismissed because the plaintiffs relied exclusively on the theory (rejected by the District Court) that constitutional violations occurred because military personnel and equipment were used to accomplish various seizures, searches, and assaults. Lamont v. Haig, Civil No. 81-5048 (D.S.D. Oct. 18, 1984). The plaintiffs appeal from this last order.

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 Fourth Amendment and their rights to free movement and travel. ⁴ Second, they claim that they were unreasonably searched by ground and aerial surveillance. In both cases, plaintiffs assert that the seizures and searches were unreasonable because "Defendants accomplished or caused to be accomplished those actions by means of the unconstitutional and felonious use of parts of the United States Army or Air Force...." Designated Record (D.R.) at 36. Third, plaintiffs claim they were assaulted, deprived of life in one instance, and deprived of property contrary to their rights under the Fifth and Eighth Amendments. Again, plaintiffs allege that these actions were unconstitutional "for the reason that the arms used in the force or threat of force were parts of the United States Army or Air Force...." D.R. at 41. This case comes to us on appeal from a dismissal for failure to state a claim, and we therefore accept for present purposes the factual allegations of the complaint.

These allegations must be viewed against the background of the Posse Comitatus Act of 1878, 18 U.S.C. Sec. 1385, which plaintiffs claim was violated here. The statute provides:

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 Fourth Amendment because military personnel or equipment were used to accomplish those actions. We believe that the Constitution, certain acts of Congress, and the decisions of the Supreme Court embody certain limitations on the use of military personnel in enforcing the civil law, and that searches and seizures in circumstances which exceed those limits are unreasonable under the Fourth Amendment.

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 Fourth Amendment, whether or not probable cause exists to believe the fugitive has committed a crime). Reasonableness is determined by balancing the interests for and against the seizure. 105 S.Ct. at 1699-1700. Usually, the interests arrayed against a seizure are those of the individual in privacy, freedom of movement, or, in the case of a seizure by deadly force, life. Here, however, the opposing interests are more societal and governmental than strictly individual in character. They concern the special threats to constitutional government inherent in military enforcement of civilian law. That these governmental interests should weigh in the Fourth Amendment balance is neither novel nor surprising. In the typical Fourth Amendment case, the interests of the individual are balanced against those of the government. See, e.g., Tennessee v. Garner, 105 S.Ct. at 1700. That some of those governmental interests are on the other side of the Fourth Amendment balance does not make them any less relevant or important. ⁵

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 Fourth and Fifth Amendment rights in the hands of persons who are not trained to uphold these rights. It may also chill the exercise of fundamental rights, such as the rights to speak freely and to vote, ⁶ and create the atmosphere of fear and hostility which exists in territories occupied by enemy forces.

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 (Art. II, Sec. 2); it limits the appropriations for armed forces to two years and grants to the Congress the power to make rules to govern the armed forces (Art. I, Sec. 8, cl. 14); and it forbids the involuntary quartering of soldiers in any house in time of peace (Third Amendment).

Congress has passed several statutes limiting the use of the military in enforcing the civil law. As already noted, 18 U.S.C. Sec. 1385 makes it a crime for anyone, "except in cases and circumstances expressly authorized by the Constitution or Act of Congress ... [to use] any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws." Title 10 U.S.C. Secs. 331-335 delimit the circumstances under which the President may call upon the national guard or military to suppress insurrection or domestic violence. See also 32 C.F.R. Sec. 215 (1984). ⁸

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...