United States v. Jaramillo, CR 74-L-8

• Citation: 380 F. Supp. 1375
• Decision Date: 14 August 1974
• Docket Number: No. CR 74-L-8,CR 74-L-9.,CR 74-L-8
• Parties: UNITED STATES of America, Plaintiff, v. Gregorio JARAMILLO, Defendant. UNITED STATES of America, Plaintiff, v. Michael Eugene STURDEVANT, Defendant.
• Court: U.S. District Court — District of Nebraska

380 F. Supp. 1375

UNITED STATES of America, Plaintiff, v. Gregorio JARAMILLO, Defendant.

UNITED STATES of America, Plaintiff, v. Michael Eugene STURDEVANT, Defendant.

Nos. CR 74-L-8, CR 74-L-9.

United States District Court, D. Nebraska.

August 14, 1974.

Duane L. Nelson, Special Pros., for plaintiff.

Lewis Gurwitz, Cambridge, Mass., for defendants.

Clyde C. Henning, Rockville, Md., for defendant Jaramillo.

Robert C. Heeney, Rockville, Md., for defendant Sturdevant.

MEMORANDUM OF DECISION ON THE MERITS

URBOM, Chief Judge.

The defendants have been indicted for attempting to enter on March 9, 1973, into Wounded Knee during an occupation of that village by American Indian Movement members or supporters.

Trial has been to the court without a jury. Transfer of the cases to the District of Nebraska was by consent of the parties in the interest of justice, pursuant to Rule 21(b) of the Federal Rules of Criminal Procedure. The indictments are under 18 U.S.C. § 231(a) (3), which states:

"Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any . . . 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 . . . the conduct or performance of any federally protected function . . ."

shall be punished. In order to find either defendant guilty it is necessary that the government establish beyond a reasonable doubt each and all the following essential elements:

1. That a civil disorder existed at the time of the arrest of the defendant on March 9, 1973;

2. That such civil disorder was resulting in interference with a federally protected function;

3. That one or more law enforcement officers were lawfully engaged in the lawful performance of their official duties incident to and during the commission of such civil disorder;

4. That the defendant committed or attempted to commit any act for the intended purpose of obstructing, impeding, or interfering, either by himself or with someone else, in a violent manner with such law enforcement officer or officers;

5. That such act or attempt to act was done wilfully and knowingly.

I. CIVIL DISORDER

On the evening of February 27, 1973, a group of cars approached the trading post, which consisted of a store and museum, in the village of Wounded Knee on the Pine Ridge Reservation in South Dakota. Many persons emerged from the cars, shooting and yelling. There were over thirty cars involved and at least one hundred persons and probably more. They shot out the dawn-to-dusk lights that were in the vicinity of the trading post and proceeded to break into and loot the trading post, which was owned by the Sioux Corporation, carrying much of its contents to a nearby church in the village. Some persons who were residents of Wounded Knee were held hostage for three or four days. The fact that the trading post had been broken into and looted was communicated immediately to the Federal Bureau of Investigation, the United States Marshal Service, and the Bureau of Indian Affairs police by telephone by Agnes Gildersleeve, who witnessed the acts.

Later in the same evening members of the Federal Bureau of Investigation, the United States Marshal Service, and the Bureau of Indian Affairs police responded by establishing roadblocks at the major entry and exit roads to the village, because it was believed that the manpower then available was insufficient to permit trying to get into the village to make investigations or arrests. By the following morning armed occupants of Wounded Knee had established one or more roadblocks designed to prevent entry by federal law enforcement personnel, these roadblocks being nearer the village than the roadblocks set up by federal law enforcement personnel. From time to time throughout the period of February 28 through March 9 shooting occurred between persons inside Wounded Knee and the officers manning the federal roadblocks. Before March 9 reports also were received by law enforcement officers of the holding of hostages and the forcible entry of the post office in Wounded Knee.

The foregoing situation, except for the holding of hostages, continued until a time subsequent to March 9, the date of the alleged attempted entry of the defendants. Negotiations began between representatives of the Department of Justice and the occupiers of the village; cease-fire agreements were reached, but the presence of both sets of armed roadblocks and the presence of armed persons within Wounded Knee remained continuously from at least February 27 until at least March 9. During all the time from the beginning of the occupation on February 27 until after March 9 no members of the Federal Bureau of Investigation, the United States Marshal Service, or the Bureau of Indian Affairs police would have been permitted by the occupiers of Wounded Knee — except by forcible action — to enter the village for the purpose of investigating or making arrests in connection with the reported looting of the trading post, holding of hostages, or entry of the post office.

"Civil disorder" is defined by 18 U.S. C. § 232 as "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."

Beyond a reasonable doubt there was a civil disorder existing on March 9, 1973, at the time of the alleged attempted entries by the defendants. The assemblage within Wounded Knee was of more than three persons; that assemblage involved acts of violence by many persons; the violence and assemblage resulted in damage to property of other individuals on February 27, 1973, and continued to cause thereafter through March 9 an immediate danger of damage or injury to the property or person of other individuals; and the assemblage remained from February 27 through March 9. There was, therefore, a civil disorder throughout the entire period.

II. INTERERENCE WITH A FEDERALLY PROTECTED FUNCTION

The investigating of reported crimes and the operation of the post office were federally protected functions and there was interference of both by the occupation of Wounded Knee, beyond a reasonable doubt.

III. LAWFULNESS OF ENGAGING IN AND PERFORMANCE OF OFFICIAL DUTIES BY LAW ENFORCEMENT OFFICERS

Title 18 U.S.C. § 231(a) (3) presents the peculiar requirement that the prosecution prove beyond a reasonable doubt that a law enforcement officer or law enforcement officers were "lawfully" engaged in the "lawful" performance of official duties. The evidence on behalf of the government was that the United States marshals and members of the Federal Bureau of Investigation were present on the pivotal date of March 9 to enforce the laws — that is, to investigate and to make arrests for reported illegal acts within Wounded Knee and to contain the civil disorder. Although they may have been there also with respect to the reported entry of the post office, I think it is fair to say that the officers had little role on March 9 with respect to that matter. Similarly, the Bureau of Indian Affairs police, although useful in their assistance, had a relatively minor role in the manning of the roadblocks on March 9.

Prima facie lawfulness of the performance of their duties by the Federal Bureau of Investigation agents and the United States marshals is shown by the statutory provisions of the following: 18 U.S.C. § 3052:

"The . . . agents of the Federal Bureau of Investigation of the Department of Justice may carry firearms . . . and make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony."

18 U.S.C. § 3053:

"United States marshals and their deputies may carry firearms and make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony."

28 U.S.C. § 570:

"A United States marshal and his deputies, in executing the laws of the United States within a State, may exercise the same powers which a sheriff of the State may exercise in executing the laws thereof."

S.D.C. 7-12-1:

"The sheriff shall keep and preserve the peace within his county, for which purpose he is empowered to call to his aid such persons or power of his county as he may deem necessary. He must pursue and apprehend all felons . . ."

The South Dakota statute quoted above, combined with 28 U.S.C. § 570, is an empowerment of marshals as to types of activities which may be undertaken. That is, marshals may "keep and preserve the peace" and "pursue and apprehend all felons." I am confident that the Federal Bureau of Investigation agents and the United States marshals ringing Wounded Knee on March 9 were in the performance of their duties of making arrests and preserving the peace. Implicit is the authority to contain the occupiers of Wounded Knee while negotiations ensued.

Much evidence was presented on the issue of whether the involvement of the military establishment was so substantial that it rendered the presence of the United States marshals and the Federal Bureau of Investigation agents unlawful, because the military activity was in violation of 18 U.S.C. § 1385, which states:

"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 . . . or imprisoned . . ."

If there was "use" of "any part of the Army or the Air Force" to "execute...