Callison v. United States, 23014.
Decision Date | 09 July 1969 |
Docket Number | No. 23014.,23014. |
Citation | 413 F.2d 133 |
Parties | William Alan CALLISON, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
James R. McCall (argued), Oakland, Cal., for appellant.
Paul G. Sloan (argued), Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., Jerrold M. Ladar, Asst. U. S. Atty., Crim. Div., San Francisco, Cal., for appellee.
Before MERRILL and BROWNING, Circuit Judges, and TAYLOR, District Judge.*
Following a nonjury trial appellant was found guilty of refusal to submit to induction into the Armed Forces of the United States in violation of 50 App.U. S.C. § 462(a). He has taken this appeal from judgment.
The principal question presented is whether appellant can, under the peculiar facts of this case, be charged with refusal to submit to induction. His "refusal" consisted of his disobedience of an order of the officer in charge of induction, as a consequence of which he was, prior to being processed, arrested and removed from the induction center by the police. He contends that the disobeyed order violated his First Amendment rights; that accordingly he cannot be charged with disobedience or its consequences.
32 C.F.R. § 1637.14 provides in part:
"(b) Upon reporting for induction, it shall be the duty of the registrant * * * (3) to appear at the place where his induction will be accomplished, (4) to obey the orders of the representatives of the Armed Forces while at the place where his induction will be accomplished, (5) to submit to induction * * *."
Appellant was ordered to report for induction at the Armed Forces Examining and Induction Station in Oakland, California, at 7:00 A.M. on November 7, 1966. He reported on time. Outside the station he proceeded to pass out to inductees as they arrived leaflets opposing the draft and the war in Vietnam. He was warned by the police not to block entrance to the station, but otherwise there was no interference with his activities. In due course he entered the station, surrendering his remaining leaflets to the police at their request. He proceeded to the reporting room on the second floor of the station where about 75 inductees were gathered. He was advised by a soldier in charge to wait for his name to be called, at which point he would be given papers needed in the induction process and sent to report to another room.
Appellant took a seat and proceeded to write out a petition on a tablet he had brought with him. The petition read "We petition the army not to draft us so that we will not be forced to fight a brutal and unnecessary war in Vietnam."
He then proceeded to ask inductees if they would sign it. Those solicited declined to sign. Either they were volunteering or said that they felt the petition to be a useless act. The solicitations and responses were carried on in a conversational tone of voice. Conversation was generally permitted in the room. Up to this point no disruption of that portion of the process of induction being carried on in the room — the calling of names and furnishing of papers — resulted from appellant's activity.
Appellant's conduct was noted by the adjutant to the station commander — a captain — who told appellant that solicitation of signatures on petitions was not allowed. Appellant insisted that he had a constitutional right to solicit and continued to do so. The station commander — a colonel — then joined the discussion. He confirmed the rule announced by the captain. He ascertained that appellant was present in response to an order to report for induction and asked appellant to surrender the petition. Appellant refused to do so but read the petition to the colonel. The colonel then directed appellant to accompany him to the colonel's office in order to discuss the matter, since the discussion in the room had by then become so distracting that the induction process had come to a halt. Appellant refused. When the colonel took him by the arm he shook off the colonel, stating "Take your Goddam hands off of me." A scuffle ensued between appellant and two members of the colonel's staff during which appellant stated (according to the colonel's testimony, which was denied by appellant): "No obscenity is going to induct me."
The colonel then advised appellant that he had three alternatives: (1) cooperate and allow himself to be processed for induction, with the understanding that he could, if such was his desire, refuse induction at the appropriate point; (2) leave the induction center and have his record so annotated; (3) require the colonel to have him arrested and removed by the police.
Appellant inquired whether the colonel was asking him to leave. The colonel said he was not and repeated the alternatives, adding advice as to the penalties provided for refusal to submit to induction.
Appellant rejected the alternatives. The police arrived, the colonel once again offered appellant the alternatives, once again they were rejected and appellant was taken under arrest and led away by the police.
We hold that the order to refrain from soliciting signatures was not an impermissible intrusion upon appellant's First Amendment rights and was entitled to respect and obedience; that appellant, by deliberately engaging in conduct that he knew would make induction impossible, was properly charged with refusal to submit to induction.1
First Amendment rights are not absolutes. Regulation as to time, place and manner of exercise is proper where reasonably related to a valid public interest. Cox v. Louisiana, 379 U.S. 536, 559, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). In judging the reasonableness of restrictive regulation the extent to which the restriction imposes a burden on free exercise of the rights must be taken into balance with the public interest involved.
Here the very process of induction was under way and those present were subject to the processing orders of the officers in charge. Even so, appellant was not prevented from engaging in orderly speech nor orderly registration of opposition or grievance. He was precluded only from...
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