Gilligan v. Morgan

PETITIONER:Gilligan
RESPONDENT:Morgan
LOCATION:Pennsylvania State Capital Building

DOCKET NO.: 71-1553
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 413 US 1 (1973)
ARGUED: Mar 19, 1973
DECIDED: Jun 21, 1973

ADVOCATES:
Erwin N. Griswold –
Michael E. Geltner – for respondents
Thomas V. Martin – for petitioners

Facts of the case

Question

Audio Transcription for Oral Argument – March 19, 1973 in Gilligan v. Morgan

Warren E. Burger:

— this morning in 71-1553, Gilligan against Morgan.

Mr. Martin.

Thomas V. Martin:

Mr. Chief Justice and may it please the Court.

The question presented by this case is whether the propriety of the training, weapons and orders should be determined by the Federal Court or by the other branches of the Federal Government.

Another question presented by this case is whether injunctive relief against the use of the National Guard or against the use of certain training, weapons or equipment of the guard would constitute an unwarranted interference with a legitimate activity of a state.

This case arose of the use of the National Guard to control civil disorders which occurred at Kent State University in May of 1970.

The respondents filed suit, the following fall claiming that the Governor had prematurely called the guard to duty, that the conduct of the guard while on duty at Kent State violated the student’s constitutional rights and that Section 5923.55 which provides under limited circumstances immunity for members of the National Guard was unconstitutional.

Respondents also claimed that the continuance of the same operating methods and procedures of the National Guard under the continued direction of defendants constituted a threat of repetition of injury in the future.

The District Court dismissed the complaint on the ground that it failed to state a claim upon which relief could be granted.

The Court of Appeals unanimously affirmed the District Court in its dismissal of two causes of action.

However, it found that the complaint did state a claim with respect to the following question.

Whether there was and is a pattern of training, weaponry, and orders of the National Guard which requires or makes inevitable the use of a lethal force in controlling civil disorders where such force is not reasonably necessary.

Petitioners who are the successors in office to defendants below filed a petition for a writ of certiorari to this Court to review the portion of a judgment which reversed the District Court.

The issue as framed by the Court of Appeals will require the Court to determine the propriety of the training, weapons and orders of the National Guard.

The resolution of this issue has been committed to the other branches of the Federal Government.

Petitioners therefore contend that this issue presents a non-justiciable political question.

All of the factors or formulations which this Court has said, may describe a political question are involved herein.

There is a demonstrable constitutional commitment of the issue to Congress.

Article 1, Section 8 of the constitution gives Congress the power to provide for the training and equipment of the National Guard.

The Congress pursuant to this power has enacted legislation which prescribes the proper training, weapons and orders for the National Guard.

Congress has also enacted legislation which delegates to the President, the authority to prescribe regulations and issue orders concerning these matters.

The President has also acted pursuant to his authority and has prescribed mandatory riot control training requirements for the National Guard.

Any relief which the District — which a Federal Court could give would express a lack of respect for the coordinate branches of the Government.

Both Congress and the President have the authority and the responsibility to determine the proper methods of training and equipping the National Guard.

Any judicial relief which would control these matters would therefore indicate a lack of respect by the Court for these coordinate branches to carryout their responsibilities.

Any judicial relief which controlled the training, weapons or orders of the National Guard would also run the risk, create the risk of conflicting pronouncements by the various departments on the same subject.

Both Congress and the President have acted pursuant to their authority in the past.

There is no reason to assume that they will not again so act in the future.

Any judicial relief as to these matters might create varying or even conflicting directives with future directives from either Congress or the President.

These conflicting directives could cause confusion and delay responding to the civil disorders.

Thomas V. Martin:

This delay could impede the ability of the state to control the disorders.

The proper method of training and equipping the National Guard and preparing them to carryout their responsibilities should be made by Congress or the President and not by the Court.

The relief requested by respondents herein shows the need for expertise and specialized knowledge.

The respondents have requested that the use of the National Guard to control disorders be enjoined until it is determined that the training of the members of the National Guard is competent and that they have been provided with the best available nonlethal equipment.

There is no ready criteria or standard for a Court to determine whether or not the training is competent and whether or not the equipment is the best available.

The Department of the Army, because of its experience in the area is better able to determine the amount of training that such troops need and the type of training.

The Department of the Army is also more likely to have knowledge of new developments in theories, in methods on controlling civil disorders and to have knowledge of new developments and new equipment.

It is also better able to evaluate the effectiveness of such techniques and equipment not only because of its experience, but because it has facilities whereby the techniques and equipment maybe tested under simulated riot conditions.

In addition, a court cannot provide a continuing supervision and Revision of the training and weapons of the National Guard which is necessary to properly prepare them to perform their functions.

The Court is limited and must wait for litigants to bring a case or controversy in order for it to make its determination.

Petitioners also contend that the relief requested herein would be an unwarranted interference with a vital activity of the state, preparation for and control civil disorders.

Potter Stewart:

The relief requested is injunctive and declaratory relief only, isn’t it?

Thomas V. Martin:

Yes, Your Honor.

I believe the main relief is to enjoin the use of the National Guard until it is determined that the training, weapons and orders are proper.

Potter Stewart:

That is proper in the view of the Court?

Thomas V. Martin:

Yes, Your Honor.

Potter Stewart:

And there is no — was there ever here in action for a damages as result of what happened at Kent State in May of 1970?

Thomas V. Martin:

None in this suit, Your Honor.

I believe there are various suits pending for actions which involve what occurred at Kent State.

Potter Stewart:

But this lawsuit doesn’t involve anything, any damages for what happened there.

It’s directed to the future entirely.

Thomas V. Martin:

Yes Your Honor.

William H. Rehnquist:

Mr. Martin, my understanding of the general rule is that the prayer for relief is not a part of the complaint, and therefore, if the District Court is going to dismiss the complaint, it would have to conclude not only that the particular relief sought is not warranted, but that no conceivable type of equitable relief would be warranted?

Thomas V. Martin:

Yes Your Honor, we contend that no type of relief is warranted.

Petitioners are particularly concerned with the relief requested which would enjoin the use of the National Guard until a Court had determined the propriety of their training, weapons, and orders.

Byron R. White:

Your say, not even a declaratory judgment is warranted, that’s a form of equitable relief?

Thomas V. Martin:

Your Honor, petitioners — petitioner’s interest in a declaratory judgment would be limited to whether the declaratory judgment would have the same disruptive effect upon the use of the National Guard as an injunction.

Byron R. White:

But your position as a political question would eliminate —

Thomas V. Martin:

Would eliminate all, that is right Your Honor.

That’s our position.

Thomas V. Martin:

Our position is, if it is not a political question, even if it is not a political question, we do not believe that injunctive relief against either the use of the National Guard or which would specify certain training, weapons, and orders is warranted.

Byron R. White:

Did you challenge standing below or —

Thomas V. Martin:

No, Your Honor, we did not.

Byron R. White:

Do you here?

Thomas V. Martin:

We do not.

Byron R. White:

Is it open?

Thomas V. Martin:

It is open.

The court below expressly reserved that question for the District Court.

Harry A. Blackmun:

May I ask why you don’t challenge the standing?

Thomas V. Martin:

Part of it, Your Honor, is we’ve — since we failed to do it below, we may not have realized that we could have and we believed that even if plaintiffs or respondents did have standing, there was still no relief which could be granted.

Warren E. Burger:

On the other hand, if there was no standing, you wouldn’t have to reach all of those questions, would you?

Thomas V. Martin:

That is true, Your Honor.

Warren E. Burger:

And that would avoid these important constitutional questions?

Thomas V. Martin:

That is true, Your Honor.

Byron R. White:

And that is a — not just standing a constitutional question itself with the — but it isn’t a threshold that sits at the jurisdiction?

This is case of controversy standing?

Thomas V. Martin:

Yes, Your Honor.

Byron R. White:

So, isn’t that a sort of a threshold question before you get to the bottom of it?

Thomas V. Martin:

It is a threshold question and it maybe we should have raised that issue but we didn’t.

Byron R. White:

Well this is — is this not all over?

Thomas V. Martin:

Yes, Your Honor.

Potter Stewart:

But what about it right now?

Thomas V. Martin:

Alright, Your Honor.

I believe that there is no allegation in the complaint that the respondents were even students at the time the disorders occurred.

The complaint was filed the following fall.

The plaintiffs at that time contended they were students and sought injunctive relief.

We also believe that any question as to the propriety of injunctive relief is now moot.

Plaintiffs or respondents base their claim for injunctive relief in a continuing threat of injury on the continuance for the same rules and operating procedures of the National Guard under the continued supervision and direction of the defendants.

Neither condition now obtains.

The rules of conflict or rules of engagement of the Ohio National Guard have been changed and Ohio has now adopted the federal rules of engagement.

Thomas V. Martin:

None of the defendants who were in control of the National Guard at the time of the Kent State disorders now have any responsibility with respect to the National Guard.

Byron R. White:

Where is a — how is that change evidenced, by a directive or by a statute or by a regulation or what?

Thomas V. Martin:

It was changed by — I’m not sure of the proper term of it; a directive or order of the Adjutant General.

Byron R. White:

Well, I take that the record doesn’t show that, that the record before this Court, but is it subject to judicial notice, is it in a form –?

Thomas V. Martin:

Your Honor, the only way it may show it is we filed a memorandum suggesting mootness which contained these rules.

The title is “A Plan to for Control of Civil Disorders.”

We filed a copy of that with our memorandum suggesting mootness.

Byron R. White:

Well, that’s another issue beside standing I take it, that’s mootness in the sense that there’s been some new law that has intervened, isn’t it?

But how about — do these plaintiffs — are these plaintiffs in any different position to make the challenge than any other citizen?

Would any other citizen in the community have the same right if any to maintain this complaint, to file and maintain this complaint?

Thomas V. Martin:

As I construe their complaint, Your Honor, they claim a different interest in that they are students and the National Guard could again be called to the University; to Kent State University to control disorders.

Warren E. Burger:

What about a student in another state, in another university where the regulations governing the National Guard were the same as existent at the time of the Kent State episode?

Will they have standing on the theory of the respondents?

Perhaps I’ll ask your friend to address himself to that later on.

Thomas V. Martin:

I’m sure he could better address himself to that, Your Honor.

The petitioners contend that the same considerations which required denial of injunctive relief against the Governor from prematurely calling the guard to duty should also require denial of injunctive relief against the use of the National Guard until there is a judicial determination as to the propriety of the training, weapons, and orders.

In order to control civil disorders, the state must be able to act immediately.

If it’s required to await a judicial determination, before it can act, the harm could be prevented, could occur without any opposition.

Petitioners also contend that any relief which would require or prohibit the use of certain training, weapons, or orders of the National Guard would also unduly impair the ability of the state to prepare for and control disorders.

No one can predict the time, place, size, or type of disorders and no one can predict what measures will be necessary to control.

The state officials must therefore be given broad discretion to prepare for any eventuality and the state officials must also be given broad discretion to determine under emergency conditions just what methods or techniques should be used to control the disorder.

Any relief by a Court which would control the training or weapons or orders of the Court would restrict this discretion and thereby impair their ability to prepare for and control disorders.

We believe the instant case is readily distinguishable from the cases relied upon by respondents and cited by the court below which granted injunctive relief against illegal police activity.

None of those cases required the Court to review the training, weapons, or orders of the police department.

None of those cases enjoined or required the use of certain training, weapons, or orders.

The injunctive relief in those cases was very narrow.

It was limited to conduct which could not be constitutional or cannot be valid under any circumstances.

There was therefore a little risk that injunctive relief would inhibit beneficial and lawful police conduct as well as unconstitutional police conduct.

Potter Stewart:

But what line of cases are you talking about?

Thomas V. Martin:

Hague versus CIO, Your Honor, and the case is where a Federal Court has granted injunctive relief against certain conduct of a police department.

Thomas V. Martin:

In the instant case on the other hand, the training, weapons and orders of the National Guard are not illegal in themselves and not illegal under any circumstances.

The basis for the claim that they maybe illegal or maybe unconstitutional is that alleged unconstitutional conduct by the guard resulted therefrom.

Injunctive relief against the training, weapons, or orders of the National Guard could therefore also inhibit lawful conduct by the state and beneficial conduct in controlling disorders.

Petitioners contend that the issue of the training, weapons, and orders of the National Guard has been committed to the other branches of the Federal Government and that these branches of the Federal Government are better able to deal with the problem.

Petitioners, therefore, respectfully submit that this case presents a non-justiciable political question.

Petitioners also contend that any injunctive relief which could be granted against the use of the National Guard or against its training, weapons, and orders would constitute an unwarranted interference with the ability of the state to protect itself against disorders.

Warren E. Burger:

Thank you, Mr. Martin.

Thomas V. Martin:

Thank you, Your Honor.

Warren E. Burger:

Mr. Solicitor General.

Erwin N. Griswold:

May it please the Court.

The United States is not a party to this case and had no direct role in the events which occurred at Kent in May 1970.

The actors there were officers and members of the Ohio National Guard, a state organization acting at that time under state authority.

However, the United States Army is responsible for the training of the National Guard.

Consequently, the United States is much concerned about this case and the possible impact of the decision below and the complications which would inevitably ensue if the Federal Court should undertake to exercise over sight of the training of the National Guard.

Under the system established by Congress, National Guard units are ordinarily under state command and operational control.

They receive federal financial support though, only if they maintain “Federal Recognition” by meeting prescribed federal standards.

State is free to have to support its own National Guard in a way it wants to, but to obtain federal control and the federal support, they must meet the federal standards.

Potter Stewart:

So, there is no state — there is not state that doesn’t [Voice Overlaps]

Erwin N. Griswold:

There is no state which might now meet federal standards.

Potter Stewart:

Right.

Erwin N. Griswold:

There have been in the past, in the distant past, but and indeed the present National Guard organization only dates from the early part of this century.

The whole business of trying to handle the civil war was largely done through state that raised troops.

The statute passed by Congress authorizes the President to, again I quote, “prescribe regulations and issue orders necessary to organize, discipline, and govern the National Guard.”

And this is pursuant to the provision of the constitution which gives Congress the power to provide for organizing, arming, and disciplining the militia and reserves to the states the authority of training the militia according to the discipline prescribed by Congress.

The provision for uniform, training, or discipline ensures that the militia can be effectively integrated into the regular army if the need arises.

The constitution contemplates that the Federal Government will prescribe the training program but the state actually administers the training as long as the guard has not been federalized.

Thurgood Marshall:

Mr. Solicitor General, as I understand Mr. Martin correct that they just adopted these federal standards while this case was pending?

Erwin N. Griswold:

They have adopted the federal standards since this case was begun and I will come to the details of that in just a moment.

The army is naturally, primarily concerned with ensuring that the guard is qualified to serve as a part of the army if called into active federal duty, but the army has also promulgated detailed instructions for civil defense control training and this training program is for National Guardsmen as well as for members of the regular army.

Beginning in 1971, the army began to give National Guard recruits 16 hours of additional special civil service, civil disturbance control training.

Erwin N. Griswold:

Now, this special training was initiated in recognition of the fact that guard units are more likely to be called to suppress civil disturbance within our regular army units.

An important aspect that civil disturbance control training is the rules governing the use of force.

When the guard is in state stages, it is subject to the state’s use of force regulations.

The National Guards of all states, including Ohio, have now voluntarily adopted the federal standards on use of force as their own.

At the time of the Kent State incident, however, in May 1970, the Ohio rules were substantially different from the federal rules and different from what they are today.

The army rules which have been in effect since March 1968 are set forth in the appendix of the Government’s brief beginning on page 29.

And the relevant portions are stated on pages 33 and 34 of the Government’s brief.

I read from the top of Page 33.

These are the federal regulations now adopted by the Ohio National Guard and all other National Guard.

Potter Stewart:

And adopted since May of 1970?

Erwin N. Griswold:

By Ohio late in 1970 since the events and since this suit was brought.

I read from the top of Page 33, the presence of loaded weapons — well, let me change to pages 13 and 14 of our brief where they are summarized rather than the full text.

The rules provide detailed regulations for the use of deadly force and it is authorized only where just above the middle of Page 13.

“Lesser means have been exhausted are unavailable.

The risk of death or seriously bodily harm to innocent persons is not significantly increased by its use and the purpose of its use is one or more of the following; self-defense to avoid death or serious bodily harm, prevention of a crime which involves a substantial risk of death or serious bodily harm.

For example, setting fire to an inhabited dwelling or sniping, including the defense of other persons.

Prevention of the destruction of public utilities or similar property vital to public health or safety or the detention or prevention of the escape of persons who have committed or attempted to commit one of the serious offenses referred to in A, B, and C above.”

And then with respect to live ammunition, the present rules of force provide as quoted at the top of Page 14, “Task Force Commanders are authorized to have live ammunition issued to personnel under their command.

Individual soldiers will be instructed however that they may not load their weapons except when authorized by an officer or provided they are not under the direct control and the supervision of an officer when the circumstances would justify their use of deadly force.

Retention of control by an officer over the loading of weapons until such time as the need for such action as clearly established, is a critical importance in preventing the unjustified use of deadly force.

Whenever possible, command and controlled arrangements should be specifically designed to facilitate such careful control of deadly weapons.

It’s obviously a difficult and delicate situation.

You might have an individual soldier out alone where he might have to use his judgment, but it is placed under the control of an officer.

Thurgood Marshall:

At the time when this suit was filed, the complaint was as I understand it that the Ohio rules allowed them to carry loaded weapons.

Erwin N. Griswold:

Yes, Mr. Justice.

Thurgood Marshall:

That’s what the suit was about?

Erwin N. Griswold:

The Ohio rules which were then enforced are said out on pages 41 to 45 of the Government’s brief and I would call attention to what they were and the complete change between that and the present rules.

This appears on Page 43 in the Appendix B to the Government’s brief under the heading, F, Weapons, “When all other means have failed or chemicals are not readily available, you are armed with a rifle and have been issued live ammunition.”

Now, that’s pretty much encouragement I should think.

The following rules apply in the use of fire arms: One, rifles will be carried with a round in the chamber, in the safe position.

Erwin N. Griswold:

They are to carry loaded weapons.

Exercise, care, and be safety minded at all times.

Well, there is not much suggestion about safety as to the other people.

And then I will skip over to the — well, two, indiscriminate firing of weapons is forbidden; only single aim shot at confirmed targets will be employed.

Potential targets are, and then I will turn to C at the top of the Page 44.

“In any instance where human life is in danger by the foreseeable violent action of a rioter or and it’s or when rioters to whom the riot act has been read cannot be dispersed by any other reasonable means then shooting is justified.”

Mr. Chief Justice, I understand I am to have some of Mr. Martin’s time.

Warren E. Burger:

You may continue.

Erwin N. Griswold:

— which he had some left.

Now, in December 1970, some seven months following the shooting at Kent State, the Ohio National Guard issued a new operational plan which adopted the army use of force rules verbatim.

Now, this appears on orders of the Adjutant General of Ohio, which have been filed with the clerk of this Court.

I think that such orders ought to have the status of regulations and ought to be capable of being taken judicial notice out by the Court.

And now, I would like to turn to the legal position or it seems to me that first, we have a good old question quite apart from political question, quite apart from the standing, simply of equitable jurisdiction.

The only prayer in this complaint is for equitable jurisdiction and this appears on Page 10, wherefore plaintiff’s request that this Court enter judgment as follows: (a) enjoining defendant roll; (b) enjoining defendant rule; (c) enjoining defendant rule; (d), enjoining defendants and their successors, and finally (e) declaring a section of the Ohio Revised Code to be unconstitutional and void.

That is a declaratory judgment, but the court below decided that against the respondents here and they did not file any petition and it is not before the Court.

Now, I recognize that one isn’t completely bound by the prayer, but there isn’t a slightest doubt that this suit was not brought and cannot be brought because of the harm that was done to any one at Kent State in 1970.

This is not a tort suit and there would not be federal jurisdiction of this case as a tort suit, but there is no basis for this suit except as a suit to enjoin a violation, a threatened violation under the Civil Rights Act and I would suggest that the mere showing that there was an event, once in the past that does not provide a basis for equitable jurisdiction.

A recent case which is fairly close to that is Laird and Tatum.

William H. Rehnquist:

Mr. Solicitor General, when you say only equitable relief was sought, are you including within equitable relief, possibility of a declaratory judgment?

Erwin N. Griswold:

There is no prayer for a declaratory judgment except with respect to this one section of the Ohio statute which they lost below and did not seek to bring here.

William H. Rehnquist:

How about sub-paragraph, F the [Voice Overlap] —

Erwin N. Griswold:

And I find that considerable to — well, sub-paragraph F is such other and further — granting such other and further relief as this Court deems just and proper and I assume that this Court will grant such further relief as it deems just and proper.

I don’t think that really adds to the scope of the claim which is solely for an injunction and I also have considerable feeling that the same rules as to equitable jurisdiction are applicable to a declaratory judgment which is really a kind of injunction which doesn’t have quite the immediate tithe that an injunction has, but it is res judicata and you can then come in and apply to the Court for an order to comply with it.

Something was done at Kent State which was unfortunate.

A firm action was taken to correct the regulations and instructions and training of the Ohio National Guard.

This may well have been due to federal influence, though that does not appear affirmatively in the record.

In this situation, it’s my contention that it’s not appropriate for the Courts to intervene and undertake to prescribe or supervise the training of the National Guard.

Thurgood Marshall:

But should we limit that to the new regulation?

Erwin N. Griswold:

Is the Court limited to the new regulation?

Thurgood Marshall:

Yes.

Erwin N. Griswold:

I would think with respect to the determination of the propriety of equitable relief, it was.

Thurgood Marshall:

And we wouldn’t have to approve of those old ones, would we?

Erwin N. Griswold:

No, certainly not.

I don’t approve of the old ones and I gather that neither does Ohio now, but that leads me to the next question, the question of standing.

The respondents here would appear to have no personal standing.

They weren’t injured at Kent State.

I’m advised that they are no longer students of Kent State.

That would appear from the offices they held in the lapse of merely three years.

They purport to bring the suit as a class action.

There is at least a problem as to whether a class action can be maintained by persons who are no longer members of the class.

They allege that a wrong was committed in May 1970, but they do not sue because of the wrong, and the District Court below would not have jurisdiction of a suit based on that wrong.

Because of the one event, they say that their rights are threatened, but their claim of future harm is wholly speculative.

They base their claim upon the single incident at Kent State in May 1970 and ignored the substantial revisions that have since been made.

There is here no ongoing event or program which the respondents will inevitably confront.

They allege merely that such an event may occur at some unspecified time in the unstated future.

Now Courts of Equity should not exercise their injunctive power at large in the absence of a more specific threat of potential harm than is alleged here.

Indeed, the case is here in a rather odd and highly artificial posture.

The sole relief here, claimed is prospective, equitable, and injunctive.

But (1) the plaintiffs are no longer students; (2) the original defendants are no longer in office.

There is a new Governor, a new Adjutant General, both of whom have made it plain that they do not support the rules upon which action was taken before.

I will remember when in filing a motion to substitute new government officers, you had to get a declaration from them as to whether they propose to continue to follow the same policy.

Now, we do it automatically as a matter of course which is probably an improvement, but it’s perfectly plain that the present officers against to whom the injunction is sought do not propose to follow the same policy.

The training regulations have been changed and the statute as to which a declaratory judgment was sought has been repealed.

Much of the talk in the respondents’ brief is about the wrongs that the Governor and the Adjutant General did, but this is not a tort suit.

It is, as I have said, solely a suit for an injunction.

To proceed with this case, it seems to me just to make it a sort of phantom case and I have sometimes thought that when I have more time available, I may try to write an article about phantom cases in the Supreme Court.

For example, Bivens decided two years ago was a phantom case.

The actual facts there bear no relation to the issue which was decided by the Court and similarly, last term, Mandel was a phantom case for we knew facts which were not in the record, which made it a very different case than it was.

These arise because people filed motions to dismiss and the lower courts as the quickest way to get rid of a case and it seems to me perhaps doubtful and perhaps questionable under the case and controversy standard of the constitution of whether the Court should undertake to decide issues in cases which have become so removed from reality as this one has.

Potter Stewart:

When you write that article, have in mind Robinson against California?[Laughter]

Erwin N. Griswold:

Thank you, Mr. Justice, I’ll be glad to add that to my notes.

My notes have largely been based on cases through my office and I will look for that.

William O. Douglas:

Are you open to other suggestions?

Erwin N. Griswold:

And accordingly we [Laughter] — Mr. Justice, I’m sorry.

William O. Douglas:

Are you open to other suggestions?

Erwin N. Griswold:

Yes, I would [Laughter] I would like them very much and I will give credit in a footnote.[Laughter]

Accordingly, we submit that the judgment below should be reversed with directions that the complaint should be dismissed.

Warren E. Burger:

Thank you, Mr. Solicitor General.

Mr. Geltner.

Michael E. Geltner:

Mr. Chief Justice and may it please the members of the Court.

Before I go into my argument, I just like to clarify two points which came up in the proceeding arguments and that — which I might be able to clear the record.

The first is the claim for declaratory relief.

Since on the drafting of the complaint, I guess, I got to stand by it, in subparts — I’m reading from Page 11 of the appendix, in subparts B, C, and D on Page 11 of the prayer for relief.

After requesting injunctive relief, the paragraph then proceeds to, recite the words, and declaring the use of the Ohio National Guard troops contrary to those requirements to be unlawful.

It is that portion which is intended to be the request for declaratory as well as injunctive relief.

Thurgood Marshall:

It could be in any form of (Inaudible) everyone out there was saying, you ask for declaratory injunction and then you asked for the injunction, right?

Michael E. Geltner:

I have not learned in that way, Your Honor.

Thurgood Marshall:

Well, if you get an injunction, do you need the declaratory judgment?

Michael E. Geltner:

You might.

Yes, Your Honor.

You might as to some aspects.

Thurgood Marshall:

If you properly drew your injunction, would you need a declaratory judgment?

Michael E. Geltner:

No, you would not, but —

Thurgood Marshall:

I think you asked for an injunction and you claim is last thing, you also want declaratory judgment after that?

Michael E. Geltner:

That’s right, Your Honor.

It was our — it was anticipated that the injunctive aspect of the relief, if gotten, need not simply be a recital.

The past events being wrong and enjoining future events, rather it might be directed at specific items.

For example, specifically ordering the guard no longer to carry loaded weapons, into engagement.

It was believed that in that certain aspects to the injunction could be specific whereas certain aspects of the declaratory judgment might be more general in terms.

Thurgood Marshall:

But you’d never asked for a declaratory judgment?

Michael E. Geltner:

Well, it was anticipated, so that was the request.

Warren E. Burger:

Going along, I have learned a little bit and relating it to the relief that you were seeking, Mr. Geltner.

Suppose there had been no appeal here, this is obviously hypothetical, no appeal here and you had gone back to the District Court and the District Court after hearings, taking expert testimony and what not, had decreed a set of rules for the National Guard, which for the same as those, essentially the same as those which are now enforced by virtue of the army regulations.

Would you think that was the kind of relief that would be appropriate for a Court of Equity to give you?

Michael E. Geltner:

Among the possible, appropriately some might be that —

Warren E. Burger:

What more would you want beyond that?

Michael E. Geltner:

At the time of the filing of the complaint, as the Solicitor General has pointed out, the rules of engagement in Ohio were highly objectionable.

It was anticipated that we would seek either a specific order directed at specific items, or that the Court would order the defendants in the event that it found wrongdoing, to come forward with a plan for ratification of the conditions and then into the plan.

As part of its order, if it found the plan to be adequate, it was anticipated in Court that it might well be the army’s rules of engagement or those noted by Judge Edmund in his opinion below.

Warren E. Burger:

Well, are there some beyond the army regulations that you would seek in the District Court if you go back there?

Michael E. Geltner:

Well, there are numerous alternatives, but at this point, the rules which are present in the appendices produced by the army are sufficient, but we believe that they deal only with a certain aspect of the case.

And in addition, that may will be necessary to have them entered as an order at this time for that specific purpose.

What we believe —

Warren E. Burger:

Would that satisfy you if a Court of Equity ordered, irrevocably ordered the State of Ohio to maintain the army rules and force?

Michael E. Geltner:

Maintain the existing army rules —

Warren E. Burger:

That’s the new ones, yes.

Michael E. Geltner:

That would satisfy us as to the bulk of our case, but we perceive a substantial difference between the question of whether or not the rules are in force and the questions of whether or not the rules are actually enforced, and enforced over a continuous period of time by adequate training of the troops, by continuous training of the troops.

Ohio, prior to the time in question, did not have these rules.

Ohio might well go back to its old rules in the future.

There is nothing in the record which indicates that Ohio has made an irrevocable decision for these rules.

The rules are not law, they are not law in Ohio, and they are not law in United States.

In addition to which as I have said, it is basically a District Court function to determine whether or not the language of the rules is actually conveyed to the troops by instruction and by order.

Warren E. Burger:

Well, if you have standing and if this is a justiciable question and all the other barriers are satisfied and the State of Ohio went back to its old rules, couldn’t you always on your theory start a new suit in equity?

Michael E. Geltner:

Well, I suppose we could.

It’s taken us over two years now to have an adjudication and we still have not yet had a District Court entering order or decide.

I would assume that what with the complicated procedural problems involved in a prospective course of action directed against the Government.

The District Court might well see dismissal as a logical way to act.

It’s important I believe to have these questions decided now, assuming as you say, Your Honor, that this is a proper case, is justiciable and the Courts do have standing.

Thurgood Marshall:

How many of your clients are there in school now?

Michael E. Geltner:

The three plaintiffs have all graduated.

Michael E. Geltner:

The action was brought as a class action at the time —

Thurgood Marshall:

Well, who in the class is now at Kent?

Michael E. Geltner:

The entire class — the Kent State University student body is the class represented.

None of the three named plaintiffs are now members of the Kent Student Body.

Thurgood Marshall:

Have you sought to intervene any new plaintiffs?

Michael E. Geltner:

We have not sought, but we’ll seek at the District Court level.

We have been requested by the —

Thurgood Marshall:

What do we have now?

Don’t we need a named plaintiff with an interest as of this moment in order to have jurisdiction?

Michael E. Geltner:

I don’t believe so, Your Honor.

Thurgood Marshall:

Why not?

Michael E. Geltner:

I believe at this point, the complaint stands on itself.

At the appropriate time, the District Court —

Thurgood Marshall:

Well, suppose they all drop dead?

Michael E. Geltner:

Well, Your Honor —

Thurgood Marshall:

Well, suppose all the named plaintiffs drop dead, would you still be here?

Michael E. Geltner:

I see no provision in the rules for substituting at this point.

The District Court can substitute and we have been requested by the president — the present president for the student body to intervene him when we have the opportunity.

Thurgood Marshall:

Have you asked this Court to be permitted?

Michael E. Geltner:

We have not asked this Court for an order.

As I said, it is our plan to seek substitution at the District Court level and I believe that the cases support the proposition and that’s the appropriate place.

Rule 25 speaks to substituting defendants at any stage rather than substituting plaintiffs in any stage or proceedings.

Lewis F. Powell, Jr.:

Mr. Geltner.

Michael E. Geltner:

Yes, Your Honor.

Lewis F. Powell, Jr.:

I think it was Mr. Justice White who inquired of counsel for the state whether there is anymore reason why a student — a former student of Kent State would have standing to bring this case than any other citizen of Ohio and I don’t think the question was answered.

What would your answer be?

Michael E. Geltner:

Yes, Your Honor, I have a rather lengthy answer for that question because it requires an exploration of the entire standing doctrine.

Basically, this case is a live justiciable case because of the specific events.

The complaint alleges and we believe we can prove that there were specific deprivations of constitutional rights.

There were people killed, there were people shot, there were beatings administered, there were detentions, there were lawful assemblies broken up.

Michael E. Geltner:

We believe we can prove all of that and we’ve alleged to all of that.

There’s been a specific concrete controversy.

It’s an event which was explored at great length by numerous commissions, but we believe it’s highly justiciable in nature, in that, it relates to specific wrong doing on the part of government in the past.

Now, the key, the key to the prospective aspect of the case is this specific wrongdoing.

It’s in that sense that this case is different from several of the cases in recent years in which the Court has found no standing because of an absence of a past event.

That is we are not seeking merely guidance for the future; we are seeking guidance for the future arising out of a specific event.

The next question is, what is the nexus as to these particular plaintiffs to this past event.

The answer to that is complex.

But basically, the past event forms the factual basis out of which we conclude in the complaint that very real risk exist of repetition in the event of future demonstrations, future lawful assemblies.

The plaintiffs are as exposed to that as any other person on the Kent State University campus, but students at Kent State University campus at the time of the filing to this complain, were peculiarly exposed to that risk because of what had happened and because of the nature of the relationship of the local police and the National Guard to that community.

It was therefore felt and it is still felt that they are peculiarly susceptible to the same kind of conduct and that the factual basis on which a Court can act has got to be this past conduct in which we seek to prove that certain things were done as alleged and were results of the inadequacies which we alleged to have led to them.

That is what makes it a specific controversy as opposed to a law suit in which a plaintiff walks into the Court and says, “I hear the government is doing something, I think it may affect me.

Therefore, I’d like to bring an action.”

Lewis F. Powell, Jr.:

They have been brought by students, say of Ohio State University?

Michael E. Geltner:

I don’t believe so Your Honor.

Lewis F. Powell, Jr.:

You had to have this background of disorder and action by the guard?

Michael E. Geltner:

This is a very specific background.

There was a very specific conduct and it is very specific conduct that we are aiming at.

It is only at Kent State University student who is subjected to this risk.

By the same token though, a Kent State University student is as much exposed to these particular risks in the future and was at the time of the filing of the complaint as people who were actually been subjected.

Now, we’ve complained about a bunch of diverse constitutional deprivations, one of which is shooting.

Now, it is hard to see for the purposes of prospective relief, why the Court would want to require somebody who was actually shot to be the plaintiff, when the key of prospective relief is preventing future shootings.

We say similar things about beatings and about detentions.

Now, as to the breakup of lawful assemblies, the complaint does not allege that these plaintiffs were participating in the assemblies which were broken up.

Now, as to that we believe the complaint does not preclude us from proving that they were in fact participants in those lawful assemblies.

In fact, we read the rule of Conley versus Gibson as holding that unless your complaint establishes that your are not in fact capable of proving that which entitles you to relief, then you may not be dismissed.

We think that the question of this entitlement as to that item is properly a defensive matter or a matter for a single judgment.

Byron R. White:

Is that like a complaint before us here?

Michael E. Geltner:

Yes, Your Honor.

Byron R. White:

Why is that?

Byron R. White:

I thought you didn’t bring up by your — you didn’t file a petition for certiorari, did you?

Michael E. Geltner:

That’s right Your Honor, we did not.

Byron R. White:

And the District Court or the Court of Appeals just upheld your complaint insofar as it alleged in the theory of inadequate training?

Michael E. Geltner:

The theory of inadequate training, the theory of improper orders, the theory of improper arming of the troops.

Byron R. White:

But it didn’t — I didn’t know it anticipate that — I didn’t know that the issue here was whether or not the complaint stated a good cause of action insofar as it alleged the actual breakup of the assembly.

Michael E. Geltner:

Well, I don’t think Your Honor, that that question can be avoided.

What happened in the District Court, the District Judge dismissed without an opinion.

As a result we have really no guidance as to what his thinking was.

Judge Edwards wrote the controlling opinion, the majority opinion for the panel of the Sixth Circuit.

Judge Edwards split the complaint in three parts, properly so. One part of the complaint deals with the claim that a Section of Ohio Law which the National Guard had read as giving it an immunity was unconstitutional on its face.

Judge Edwards construed that narrowly and dismissed it.

The other claim deals with the power of the Court to enjoin the Governor of Ohio from future use of the National Guard prematurely.

Judge Edwards dismissed that on the ground that it was in effect a prior restraint and not justified.

In our brief, we point out the reasons why certiorari was not filed on that, which leaves the rest of the complaint which Judge Edwards ordered to dismiss and he quotes in his opinion from the relevant paragraphs which he concludes, stated the cause of action.

I am reading now from page 15 of the petition for a writ of certiorari which contains the opinion of the court below.

The allegations are the portion of the complaint which he find subject to remand are subparts A, B, C, and D of the controlling paragraph describing the wrongs.

Those are the ones which describe the separate wrongs, which are an issue and as I have said they are basically the shootings, the beatings, the detentions without arrest and the breakup of assemblies which we allege.

Lewis F. Powell, Jr.:

Referring to Judge Edwards’ opinion, and if you turn over to page 18, you will see his summary of a question which he introduces from the paragraphs you have just mentioned.

Do you accept his statement of the question as a substantive question before this Court assuming we get over the preliminary questions of standing and justiciability?

Michael E. Geltner:

I accept that as one of the four substantive questions which I believe his remand puts an issue Your Honor.

Lewis F. Powell, Jr.:

One of —

Michael E. Geltner:

One of the four, his statement of that portion of the complaint which deals with the unjustifiable killings and shootings is perfectly adequate and I fully accept that statement.

The other sub-paragraphs of the complaint which he had just quoted from include cause of unlawful and unjustified beatings, unlawful detentions, and breakup of lawful and peaceable assemblies.

In each of those instances, Judge Edwards in his opinion italicized the key language.

When he came to framing the question, he framed only the question as it related to the shootings, that is the use of lethal force with non-lethal force was reasonably necessary.

Byron R. White:

(Voice Overlap) remanded to the District Court?

Michael E. Geltner:

It seems to me he has remanded all the questions because he goes onto hold, that relief is appropriate as to that — those portions of the complaint that key question in part is the entitlement of one to have a judicial forum, here one’s claim for relief and that those aspects of the complaint are distinguishable from those portions which he split off dealt with separate land —

Potter Stewart:

He says on the top of page 18 in the language that my brother Powell has just referred to, he says, the question which we think these paragraphs serve to pose, that’s all the paragraphs, A, B, C, D and then he is in this – and he makes — and your summary of his understanding of all the paragraphs.

I have thought and I understood and I gather, your brothers on the other side of understood that what was remanded to the District Court and all that was remanded to the District Court was this question summarized here by judge Edwards in his opinion on page 18, am I wrong about that, you say there is three other questions?

Michael E. Geltner:

I think that Your Honor, fairly read the complaint raises three questions which are admittedly lesses —

Potter Stewart:

Three other questions, four in all.

Michael E. Geltner:

Four in all.

Potter Stewart:

Now, what are they?

Michael E. Geltner:

That are subsidiary to that matter and that maybe dealt with independently.

Now, Judge Edwards —

Potter Stewart:

What if the District Court have an evidentiary hearing were defined from the facts developed before it, that an affirmative answer should be made to the summary question previously raised in this opinion.

Then on 21 as to this phase of the complaint, the case is remanded for proceedings in (Inaudible).

Now, I can certainly understand why you would — why those other things that are — those other italicized language is that — seem very relevant, but I thought the issue was limited here since the case?

Michael E. Geltner:

Well, Your Honor, it may well be that Judge Edwards saw those matters as a subsidiary to the question of the actual use of deadly weapons.

In the proposal that he sets forward his appendix to his opinion, he deals with matters which relate to much more than merely the use of deadly force.

He deals with the futons, he deals with the vein which a mob have to be engaged etcetera.

It’s possible to see the questions of whether or not the National Guard is authorized to detain people, to beat people and more specifically to breakup assemblies as subsidiary to the question of whether or not the way in which it conducts itself is integral to an unreasonable risk creation as to death or shooting.

It is possible to see the most subsidiary.

It is also possible to see the most separable.

It is our position that the complaint should fairly be read as treating them as separable, although I understand that Judge Edwards’ opinion tends to see them as subsidiary.

Thurgood Marshall:

Mr. Geltner, help me out on this breaking up of unlawful assembly.

Under your ideas of what you want who decides what is lawful or unlawful?

Michael E. Geltner:

The Court issues an order thereafter the — the order enjoins the defendants from ordering them for beating their troops to breakup lawful and peaceable assemblies.

Thereafter, the defendant —

Thurgood Marshall:

It cannot be already under that injunction, now, the laws of the land.

Michael E. Geltner:

Well, not for purposes of a contempt power of the Court Your Honor.

It is our position for example that the defendant did in fact breakup at least two lawful and peaceable assemblies.

I know of no mechanism other than the contempt power of the United States District Court which would give any of the plaintiffs or their representatives, you are willing to call the defendants to task for that.

It is our belief that the injunction is necessary.

Thurgood Marshall:

Then the governor and all of his authorities have to make the judgment as to whether this is lawful or unlawful, subject to the contempt trial of the Court?

Michael E. Geltner:

On the ground Your Honor that they have in fact broken up lawful assemblies in the past, that is acted unlawfully.

Thurgood Marshall:

Well, may I carry on the suggestion of your friends that what case do you have at that point?

Michael E. Geltner:

Hague versus C.I.O. Your Honor.

Thurgood Marshall:

Hague versus the C.I.O., which opinion?

Michael E. Geltner:

The opinion in the Supreme Court which incorporated in part the opinion —

Thurgood Marshall:

Which one?

Potter Stewart:

There was no opinion in the Supreme Court in that case?

Michael E. Geltner:

There were four opinions in the Court —

Potter Stewart:

Yes, no opinion in the Court?

Michael E. Geltner:

My recollection is that at one point of my brief, I have traced down the — I have got in the footnote here, haven’t I?

I see six votes on the Court for the proposition that the assembly — that the breakup of an unlawful assembly is a deprivation of the constitutional right and that a Court may act in its equity jurisdictions to enjoin that future conduct.

And if I can find the appropriate page, Justice Roberts for himself and Justice Black, and Justice Stone for himself and Justice Reed and Chief Justice Hughes, five votes, I am sorry Your Honor.

Justice Douglas and Justice Frankfurter did not participate and I guess that leaves us with three dissenters.

So, I see five, five votes, two dissenters.

I see five votes for their proposition all of whom were agreed, although I recognize that Justice Stone got there a different way and that’s the basis for our proposition.

Thereafter of course, the District Courts and the Circuit Courts have expended to a great extent on that power.

Thurgood Marshall:

I suppose if you were sitting as a court and you have an assembly of a thousand people, were throwing rocks, would that be an unlawful assembly?

And before you answer, I want to tell you, I will ask you next how many rocks?[Laughter]

Michael E. Geltner:

Your Honor, I can grant you one rock, Your Honor, which will mean a crime.

That would not be a right under Ohio law that would —

Thurgood Marshall:

We are not talking about rights under Ohio law, we are talking about of very nice phrase called Lawful Assembly and what a — lawful assembly being one in which one rock was thrown?

Michael E. Geltner:

The constitution does not protect an assembly in which rocks or a rock are thrown.

Thurgood Marshall:

So, if one rock was thrown, it would be — it would not be protected?

Michael E. Geltner:

That’s right.

I am willing to accept that Your Honor.

Thurgood Marshall:

Well, so then the Government issues an order that if anybody throws one rock, shoot, you want that law?

Michael E. Geltner:

You have changed the facts on me.

Thurgood Marshall:

Well, do you want that law?

Michael E. Geltner:

No, we do not want that law, but the fact — the question is may the assembly be broken up as a consequence of one act to violence.

I think that is a fair question, I think it can be, but the other side of the question is may the assembly be broken up as a result of no acts of violence, I think the answer to that one is got to be no.

Thurgood Marshall:

But it is a factual point?

Michael E. Geltner:

Exactly, it is truly a factual point.

It is likewise true that we allege as a factual matter that defendants did breakup a lawful assembly and we plan to prove that the assemblies were in fact wholly lawful and wholly peaceful at the time of the National Guard acted to break them up.

Thurgood Marshall:

So far as we know, it will never occur again?

Michael E. Geltner:

The conditions —

Thurgood Marshall:

Well, has it?

Michael E. Geltner:

That particular assembly?

Other assemblies have occurred.

Thurgood Marshall:

Has any other lawful assembly occurred on Kent State?

Michael E. Geltner:

Yes, Your Honor.

Thurgood Marshall:

And has it been disturbed?

Michael E. Geltner:

Yes, Your Honor.

Thurgood Marshall:

It has been disturbed?

Michael E. Geltner:

Yes, Your Honor.

Thurgood Marshall:

Where is that in the complaint?

Why did not you leave it?

Michael E. Geltner:

It is not in the records, Your Honor.

Thurgood Marshall:

But why did you leave that out?

Michael E. Geltner:

It occurred after the day of the complaint Your Honor.

It is not lawful, it is — I have taken a position —

Thurgood Marshall:

Well, what do we have that — what do we have in the record in this case that entitles the class and what is the class as of now?

Michael E. Geltner:

The class as of now consists of all students of Kent State University.

Thurgood Marshall:

Which is a different class from when it was filed?

Michael E. Geltner:

Which consists of different persons from when it was filed.

Thurgood Marshall:

And if we take a year to decide it, it will be still another class?

Michael E. Geltner:

Different persons, same class.

Thurgood Marshall:

Different persons, same class.

Michael E. Geltner:

It is in the nature of the class.

The key through the class action under rule 23 (b)2 is prospective relief.

Is it likely that defendants will act toward the entire class in a way such as to justify prospective relief.

That is the key to the whole complaint, but —

Thurgood Marshall:

It is two-thirds of what both sides have told us, so 80% of things that were not before the District Court?

Michael E. Geltner:

Your Honor, we’re in difficult position here because the fact that all we have got is a bad complaint.

It would be much preferable, if we had a record to deal with, but we do not, and therefore all we got to do is deal with influences.

Now, we have — we’re willing to rest on sufficiency of the complaint now.

Michael E. Geltner:

I think it is terribly proper for me to come here and try to tell the Court that we can prove things which are beyond the face of the complaint.

Thurgood Marshall:

You wanted the rest on the new regulations?

Michael E. Geltner:

That is contrary point.

We believe — we believe first of all as a matter of law that because of the wrong doing, because of the very specific acts even if these regulations are legitimate, they should be entered as an order and an order or declaratory judgment should be entered so as to preclude any return to the old ways.

In that sense, the controversy is not mooted.

Excuse me Your Honor.

Thurgood Marshall:

Does it satisfy you?

Michael E. Geltner:

That would go very far to satisfying us.

The other aspect of a —

Thurgood Marshall:

(Inaudible)

William H. Rehnquist:

You are asking them if you say it should be entered as an order of the District Court in the form of declaratory judgment, if that would have be done, that would require that we decide all of these constitutional issues standing, justiciability and so forth I mean —

Potter Stewart:

All the threshold issues?

Michael E. Geltner:

That’s absolutely right, Your Honor.

Standing justiciability, the absence of mootness are pre-requisites to this Court’s acting or continuation and the actual about the District Court.

Potter Stewart:

I understood Mr. Geltner and you told me if I misunderstood you to answer the question, my brother Marshall just asked you a while ago and the question was phrased in somewhat different way by the Chief Justice that assuming we get over all these and that you are right that these threshold issues are not obstacles and we get over and get to the mass, that you really wouldn’t be satisfied by even then, by an order of a Court putting in permanently the present directors to the National Guard because while that might be alright on paper, your concern with the actual pattern of training, isn’t that what you said to the Chief Justice?

Michael E. Geltner:

That is absolutely right, Your Honor.

Potter Stewart:

And therefore you would say that the District Court has to get out there every week for two hours and watch the people drill in there?

Michael E. Geltner:

The District Court has got to enter an order.

Thereafter the District Court has got to make itself available for a counsel to bring to its attention any matters including the counsel for the defendants in the event that they seek to modify —

Potter Stewart:

How would counsel going to know without getting out there in the National Guard on their weekends of training, or is the Court to send the master out there?

Michael E. Geltner:

No, I believe that counsel can be authorized to marshal periodically the nature of the training and to make available to the Court whatever evidence is necessary.

Your Honor —

Potter Stewart:

How is this going to be done?

Michael E. Geltner:

It could be done by access.

It could be done by permitting counsel to come forward and produce witnesses.

A motion for contempt is ordinarily subject to proof before the Court or motion for modification can be some of the subjects.

Courts have traditionally and increasingly over the last few years given injunctive relief which requires the injunction to be administered.

It has been done in bankruptcy practice for many years, several of the Circuit Courts in the last few years have upheld the issuance of relatively broad decrees dealing with the conduct of prisons and the conduct of other administrative functions to the State.

Potter Stewart:

Now, I was just a little curious, I am a little curious as to how it is that the Court or you as counsel for the plaintiffs or the plaintiffs as individually, any members of the class can really know what the content is of the training when the National Guard goes on its training weekends, unless, the Court sends a master or referee out there?

Michael E. Geltner:

Well, the Court could send a master, the Court could authorize the attorneys or their representatives to appear and observe.

Potter Stewart:

Well, is that what you think would be required?

Michael E. Geltner:

It might be —

Potter Stewart:

Otherwise, all you would have would be something on paper that you say is insufficient?

Michael E. Geltner:

It would not be required, it would be one of the ways to do that.

Potter Stewart:

But what other way would be there?

Michael E. Geltner:

All I can say Your Honor, is that that over the past few years, I have to come to know an awful lot about what the Ohio National Guard is doing on a relatively ongoing basis as a result of the availability of witnesses.

It is not the CIA, it is not a secret organization.

Potter Stewart:

No, no.

Michael E. Geltner:

Its people are part time soldiers, they are soldiers on weekends, or for a couple of weeks during the summer doing the rest of the time, that’s not any (Inaudible) secrecy.

Thurgood Marshall:

What guidelines do you use for adequacy of the training?

Michael E. Geltner:

We believe that we can produce expert witnesses testify as to the training as to whether or not it is adequate.

where upon the Court can become convinced as to whether or not there is or there is not adequate training.

Thurgood Marshall:

Well, do you know what would be adequate?

Michael E. Geltner:

I personally am not an expert.

We have consulted the —

Potter Stewart:

Would the District Court would be an expert?

Michael E. Geltner:

The District Court can be made an expert to the extent that there is not any other (Inaudible) to produce witnesses.

Thurgood Marshall:

That is a District Judge, who doesn’t know a difference between a bazooka and pee shooter?[Laughter]

Michael E. Geltner:

Your Honor, Courts hear medical witnesses, medical expert witnesses on a daily basis.

District Judges have decide practice cases involving complicated problems of organic chemistry, without having taken the chemistry course in —

Thurgood Marshall:

And in the meantime, the National Guard got all of you all over the lot, watching everything they do and at the same time they’re trying to train somebody to combat?

Michael E. Geltner:

Your Honor, it doesn’t strike me as a very substantial interference with the National Guard conduct.

In the context of the fact that we have alleged and hope to prove that the National Guard in Ohio has been responsible for some very serious deprivations of constitutional rights.

We believe that in that context —

Thurgood Marshall:

And the officers in the National Guard have been responsible for it?

Michael E. Geltner:

Some of them have.

Thurgood Marshall:

Well, they have all been changed.

Michael E. Geltner:

Well, the unit remains the same.

Thurgood Marshall:

Have they?

Michael E. Geltner:

The particular defendants have been changed, but the —

Thurgood Marshall:

Do you know as if now that they are not following the military regulations to the letter?

Michael E. Geltner:

Well, if you want me to go beyond the record Your Honor, the answer is that I —

Thurgood Marshall:

I did not ask you to go beyond the record, as your question.

Do you know it or not?

Michael E. Geltner:

Do I know for fact?

I have some evidences to indicate that the quality of training as to these matters —

Thurgood Marshall:

Is it hearsay?

Michael E. Geltner:

Yes, Your Honor, it’s absolutely right.

Thurgood Marshall:

Doesn’t that sort of persuades you not to talk about it?

Michael E. Geltner:

Yes, you asked me the question Your Honor, I feel very uncomfortable going beyond the record.

The fact of the matter —

Thurgood Marshall:

I did not asked you to go beyond the record, I am just — that is the trouble with this record.

Everything you said since you have been on your feet is been outside of the record.

Everything, everybody at this table has said, in this case, has been outside of the record and we are to supposed to decide the case on the record.

William H. Rehnquist:

I suppose Mr. Geltner, you would feel that had not the petitioner here moved to dismiss the complaint and succeeded that you would have had an opportunity to compile some sort of a record.

And I know it is not really at your behest that you are here without any more of a record?

Michael E. Geltner:

Your Honor, I believe as a District Judge has followed, I mean there is just — it is a — you can’t criticize the defendant from making the motion to dismiss the rules authorize the defendant.

You can’t criticize the District Judge for improperly granting a motion to dismiss.

As we have pointed out in a —

William H. Rehnquist:

Some motions to dismiss are obviously should be granted by the Federal rules.

So, there will be some cases that simply come up on, on the complaint?

Michael E. Geltner:

Yes, Your Honor and this I don’t believe is one of them at the time this complaint was filed.

It has stated a good cause of action.

I believe that to this day the only question before this Court is whether it states a good cause of action.

If these case were remanded and a factual record made, then this Court would have before it questions of the adequacy of the training, questions which relate to the standing of the plaintiffs, specifically a factual record on the question of eminence.

Warren E. Burger:

But if the District Judge concluded either that there was no standing or that there was no justiciable question presented or that the issue was moot or all three, then he should not take any evidence, should he?

Michael E. Geltner:

That is right, Your Honor, except for the fact the question of mootness, as the Court framed the issue of mootness in the WT Grant case, there are really two senses in which a case can become moot.

The first sense is a pure outright change of law, Hall versus Beals is an example of that kind of case in which the Court concluded the law had changed and therefore the controversy no longer existed.

The second situation is a situation in which the claimant has put forth that that which was highly likely at a proceeding time is no longer highly likely because of a change in circumstances.

That is a factual issue.

Michael E. Geltner:

It is an issue to be set decided by a District Judge.

The District Judge as we all know has discretion in granting injunctive relief and it can very well deny injunctive relief on the ground that while he has found wrong doing, he now finds that the circumstances are not such as to warrant the entering even injunction.

That’s a District Judge’s function.

Warren E. Burger:

Would it be a fair characterization of your position that if the case goes back to the District Court, you do not quarrel with the specific regulations now enforced, that (a) you want them made permanent and (b) you want a continuing surveillance to see that they are carried out, is that fair statement of your case?

Michael E. Geltner:

Yes, Your Honor.

That is a fair statement of what we are seeking at this point.

Understanding that at the time the complaint was filed, we were seeking a more specific change in what then existed.

Your Honor, there is one further point which has come up on couple of occasions and I have never really specifically addressed myself to and that is the relationship of Laird versus Tatum to this case.

The Solicitor General in his brief has gone to some length to demonstrate the way in which this case is like Laird.

We think this case is different from Laird in several respects.

Laird was basically a case in which the conduct of the defendants were not itself unlawful and did not in itself involve a deprivation of a constitutional right, but it was alleged that the chilling effect of the defendants’ conduct created the deprivation of constitutional right.

So, what it was, it was an attempt to bootstrap from an injury into a deprivation of a right.

Now, irrespective of what I personally may think about that in the privacy area, this case is crucially different.

First of all, it is different in the sense that the people that are subjected to the kinds of injuries that occurred here and which we see as possibly appearing in the future or the opposite of the people who were going to be chilled, they are the people who actually participate in the assemblies and so we believe that that first of all chilling effect as to these people is really not pertinent to the question of injury here or to the question of whether or not the complaint states a wrong.

That’s the first different the way in which the case is different from Laird.

The second way, in which the case is different from Laird lies in the fact that this case alleges an injury which is very specific in nature and which has been held by preceding cases to give rise to a constitutional deprivation.

That is one who is unjustifiably killed by Government action is in fact subjected to a deprivation of the constitutional right.

So, that the inquiry into the defendants’ conduct stems from a specific constitutional right as opposed to the Laird case in which there is no specific constitutional right, but the subject, the feeling of injury is said to be enough to lead to the finding of a constitutional deprivation.

I think that is a very substantial difference.

There is one further aspect of Laird which I would like to call the Court’s attention and that is the assumption that the assumption present in this case which we have come to on a couple of our occasions that the nature of the training will be adequate to assure that the new rules of engagement are in fact more forth to choose.

We have heard a good deal on the way of assurances from the defendants, there is more on the briefs and what we see in Laird about this is that exactly, very similar kinds of assurances were made to the Court at that time.

Specifically, there are assurances with respect to the retention of documents etcetera.

It was then found by a senate committee that documents had not in fact been retained.

We believe that all of these matters, matters with respect to what the orders are and how they are implemented are purely matters of proof and therefore specifically functions for a District rather than in appellate Court.

Thank you, Your Honor.

Warren E. Burger:

Thank you Mr. Geltner.

Does the petitioner have anything further?

Thomas V. Martin:

I have nothing further Your Honor.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.