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I have no questions, Mr. Chairman.
Chief LAYTON. Thank you, Mr. Nelsen.

Mr. McMillan. On that subject, Chief Layton, what is wrong with getting good policemen from anywhere in the United States? They are paid for by the taxpayers of the whole country. What is wrong with getting good people from any of the 50 States?

Chief Layton. Not anything is wrong, Mr. Chairman, with getting policemen from all over the country. In fact, we have recently had some conversations with the recruiting office in Civil Service to broaden their activities in recruiting for police officers in the District of Columbia. Primarily because of mileage and distance, that is in the eastern part of the country, but it is possible for men who are interested in becoming Metropolitan police officers to arrange to take examinations from anywhere in the country and there is nothing wrong with that.

Mr. McMILLAN. Do you give the same exam all over the United States?

Chief LAYTON. Yes, sir.

Mr. McMillan. Of course, in my home town we don't have too many policemen, I guess about 75; but the Chief of Detectives is from the State of Pennsylvania and we think he is one of the best men we have on the force. So I don't think there is anything objectionable to recruiting good men from any State if they can meet the necessary qualifications. We do not have any priority as to whether they come from South Carolina or Florence County, or anywhere else; if they are good policemen we don't care where they come from.

Chief LAYTON. I concur in that, Mr. Chairman. I could cite several outstanding examples in our own Department where men have come to us from other parts of the country who have worked their way up in our Department to official positions, to the rank of Deputy Chief, even. So that I agree with you that good men are available in many areas of the country, from Southern States as well as Northern or Eastern or Western States. We have a number of them.

Mr. McMillan. I have not had any requests from my State for jobs on the police force, but I just wondered if all the people in the United States have the same opportunity to be members of the Nation's Capital Police Force.

Chief Layton. Yes, sir, they certainly do.

We have expanded our recruiting efforts, particularly with the Civil Service. We are attempting through Civil Service to make contact with men who are being discharged from the service. We think this is one area that may well be a source of recruits for us.

Mr. McMillan. Are there any further questions?
Mr. FUQUA. Yes, sir.
Mr. McMILLAN. Mr. Fuqua.

Mr. Fuqua. In a letter dated August 5th, to the Speaker of the House and to the Vice President, signed by the Attorney General submitting this bill we are considering today to both the Senate and the House, he stated that you had to rely on a disorderly conduct provision of present law. Have you had any problems getting convictions under the disorderly conduct law?

Chief LAYTox. There have been some. There have been a couple of recent decisions in this area where one of our Judges in particular has handed down some decisions on it, in the matter of disorderly conduct.

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We have had also an opinion from the Corporation Counsel that, in my judgment, clearly defines how the disorderly statute should be used by the police. This was issued about a year ago now. This opinion citing Court opinions, stipulates that there should be three or more persons engaging in certain types of disorderly conduct in order to make a case. One of the recent decisions I think involved whether or not prosecution should be by the Corporation Counsel or the United States Attorney.

Mr. FUQUA. In other words, then, you have run into some difficulty, particularly with one of the Judges, regarding convictions under the disorderly conduct statute?

Chief LAYTON. Yes, sir; some. I would say that up to this time that has not created a major problem, but the Judge has set down his opinion. This at the present time is his opinion. I don't know that other Judges have incorporated it, but they well might. So at this moment I would say it has not become a major problem.

Mr. Fuqua. Another point you mentioned was that the Judge stated it should be three or more persons, and the bill states five or more.

Chief LAYTON. Yes.

Mr. FUQUA. Do you think this should be changed to three? I know there has been some concern about this. Maybe Mr. Vinson or Mr. Bress can elaborate more on this later as to how the figure was derived. It might be three or, for that matter, even two.

Chief LAYTON. I would prefer to defer that to Mr. Vinson. I think probably in drafting the bill there were reasons for setting the figure at five.

I can envision and I think of some of the recent experiences which would indicate that not always are five persons engaged immediately in riotous activities. We have seen some situations where just a few people, just two or three, may at that moment be together. It might not be as many as five. I am sure there were good reasons for setting the figure at five and I will say there is not a great deal of difference between the number three and the number five.

Mr. FUQUA. Chief, this summer we have seen in several cities quite extensive rioting, looting and burning. There have been allegations made that people were looting while police officers were standing by and looking the other way. I think there has been television documentation of this. Have you had any instructions in writing or orally that you should instruct your men to look the other way if looting occurred?

Chief LAYTON. No, sir, I have not. Quite to the contrary, I also have taken notice of the same kind of situation that you just alluded to to the extent of photographs being taken which appear to depict the police officer standing by while looters were carrying things away and we have given specific instructions to our police officers, through training sessions, to deal with these sort of things, that they shall make attempts to arrest individuals to the fullest extent.

One of the things that I learned from inquiring of other chief polices in various meetings about this same kind of situation is that frequently there are too few policemen to deal with the great volume of stealing and looting that occurs. But it is our feeling, and we have specifically instructed our officers, as I have indicated, that they will take positive action, arrest action, to the fullest extent that it is possible for them to do.

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Mr. Fuqua. I want to commend you and the Metropolitan Police Department for this, because I think this is one of the first steps to the real breakdown of law and order is when this neglect by law officers, and for what reason we do not know. I want to commend you very much for the stand that you have taken.

Chief LAYTON. Thank you. Mr. FUQUA. That is all, Mr. Chairman. Mr. WHITENER (presiding). Mr. Gude. Mr. GUDE. Yes, thank you, Mr. Chairman. I want to thank the Chief for appearing and giving us the benefit of his advice.

During some of the hot nights this summer I think everyone was very apprehensive about what was going to happen in the District of Columbia. I think to a great measure the fact that we did not have trouble here was due to the very good police work that was carried out, police work in the very best sense of the word. I think the daily papers made note of it editorially.

That does not preclude the passage of this bill, but certainly I think the Department is to be commended for the good job they did in handling some very difficult situations.

I have introduced legislation, yesterday, which would provide enabling legislation which would provide the District and Maryland and Virginia communities with agreements whereby the police could work in cooperation. I believe that was recommended by the Council of Police Chiefs here in the Washington metropolitan area, was it not?

Chief LAYTON. Yes, Mr. Gude. This is a result of the Council of Governments Police Chiefs Subcommittee. This was discussed at that subcommittee, and I am sure that the Council of Governments took action to recommend that this be introduced.

Mr. Gude. Thank you very much.

Mr. McMILLAN. Thank you very much, Chief Layton. We certainly appreciate your assistance in connection with this proposed legislation. Again I want to congratulate you on the fine job you are doing.

Chief LAYTON. Thank you. I would not want the opportunity to pass by to respond here to a comment just a little earlier, that I feel that a good measure of our success in our Metropolitan Police Department in the city is due to the kind of support that we have received from this committee and other committees and the Congress as a whole, both in legislative matters and in matters of appropriations. I think that the Congress has indicated its desire to have good law enforcement in the District of Columbia.

Thank you, Mr. Chairman.

Mr. WHITENER. Now we have the Honorable Fred M. Vinson, Jr., Assistant U.S. Attorney General, Department of Justice. Mr. Vinson is accompanied by Mr. David G. Bress, the United States Attorney for the District of Columbia.

STATEMENT OF HON. FRED M. VINSON, JR., ASSISTANT ATTOR

NEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE; ACCOMPANIED BY HON. DAVID G. BRESS, UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA

Mr. Vinson. Thank you, Mr. Chairman and gentlemen. It is a pleasure to be here with you this morning.

As the Chairman noted, I am accompanied by the United States Attorney for the District of Columbia. If I may, I would like to highlight a prepared statement which has been submitted to the committee, and then Mr. Bress and myself will be available for such questioning as the committee desires.

The Attorney General said recently: To maintain law and order is the first purpose of government and the foundation of civilization. Law enforcement must marshal all resources necessary to restore domestic tranquility. Rioting cannot be permitted to scar the heart of America.

H.R. 12328, proposed to you by the Attorney General and Commissioner Tobriner, deals with one aspect of riot control in the District of Columbia. It clarifies local law and creates substantial penalties for rioting and inciting to riot.

NEED FOR LEGISLATION

The District of Columbia has no law dealing directly with riots or incitement to riot. The District of Columbia code includes the common law crimes of unlawful assembly (22 D.C. Code 1107) and affraying (22 D.C. Code 1101) but does not include the companion common law crime of rioting.

In this respect the District of Columbia differs from most other states. Some 37 states have specific statutory provisions prohibiting riots and 10 other states prohibit riots by defining the terms "unlawful assembly" or "mob action" in a manner which includes riots. In addition, 13 states have separate statutory provisions which prohibit incitement to riot.

It should not be inferred that the lack of a specific riot statute leaves the District of Columbia powerless in dealing with riots. A variety of laws could be applied to a riot situation. For example, persons who riot or incite riot can be charged by the Corporation Counsel with disorderly conduct under 22 D.C. Code 1107 and 1121, but the penalty is $250 or 90 days or both. Similarly, throwing missiles is punishable by merely a $5 fine under 22 D.C. Čode 1109. Further, persons who riot or incite riot can also be charged with any substantive offense which the circumstances may support, including such felonies as arson, grand larceny or assault with a dangerous weapon.

Nonetheless, we feel it would be most desirable to have clear statutory language prohibiting the acts of riot and incitement to riot. Quick and effective prosecution is not assured when the United States Attorney must proceed indirectly through related statutes and justice is not done when penalties are not commensurate with the seriousness of the offense.

In sum we feel the District of Columbia needs a law appropriate for the situation with which it may be confronted.

PROVISIONS OF H.R. 12328

H.R. 12328 specifies that whoever wilfully engages in a riot in the District of Columbia shall be punished by imprisonment for not more than one year or a fine of $1,000 or both. It also prohibits inciting to riot and attaches the same one year $1,000 penalty unless as a result of the riot substantial damage is done. In that event, persons who incite riots are punishable by a 10-year prison term, $10,000 or both.

The proposed legislation defines riot as "a public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct or threat thereof creates grave danger of damage or injury to property or persons".

In the view of the Department of Justice these provisions constitute a model local law for dealing with riot and incitement to riot. It incorporates the basic thrust of the common law statutes found in many jurisdictions and at the same time modernizes the law and takes cognizance of the First Amendment.

In defining a riot the proposed legislation sets the assemblage at five or more persons rather than the common law three. It also requires a "grave danger of damage or injury to property or persons”, thus excluding those protected assemblages where ideas which invite dispute are espoused but danger is not created.

On the question of the First Amendment, it should be perfectly clear that incitement to riot is not a protected activity. See, Kingsley International Pictures Corporation v. Regents, 360 U.S. 684, 689 and Cantwell v. Connecticut, 310 U.S. 296, 308. Speech which invites dispute or has unsettling effects is protected only until there is clear and present danger of serious substantive evil”. Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949).

The proposed statute also offers a realistic penalty structure which is in accord with the seriousness of modern riots. The costs of Newark and Detroit are measured in millions of dollars and in human life. Those who incite this kind of destruction should be dealt with as felons and H.R. 12328 so provides. When a riot results in serious bodily harm or property damage in excess of $5,000, persons inciting the riot face a possible ten years in prison. These penalties are similar to those imposed on persons who actually commit such acts of destruction as arson, larceny and assault which are felonies under existing District of Columbia law.

EFFECTS OF H.R. 12328

A statute of this type is not a panacea for riots. It does, however, substantially improve our ability to deal with those who would riot or incite riot. It eliminates the need to look to sedition laws or to argue the applicability of proposed Federal legislation.

In accord with the traditions of local law enforcement, H.R. 12325 will give the District of Columbia ample authority to deal with riots.

Mr. WHITENER. Now, Mr. Bress, do you have a statement you would like to make before we go into questioning?

Mr. Vinson. Mr. Chairman, we have just the one statement between us, but either or both of us would be delighted to respond to any questions.

Mr. WHITENER. All right.

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