Early 1970 was a turbulent time in the U.S. We were still in the Viet Nam War in the Nixon Presidency. On February 18th a Chicago jury found the “Chicago Seven” guilty of conspiring to incite a riot at the 1968 Democratic National Convention. On March 6th a bomb being constructed by members of the Weathermen political dissenters group for use at an upcoming military dance exploded in Manhattan, killing three members of the group. On March 17th the U.S. Army charged Lieutenant Calley and other officers of suppressing information related to the 1968 My Lai massacre in Viet Nam. On April 29th the U.S. invaded Cambodia to hunt out the Viet Cong, sparking antiwar protests throughout the U.S. On May 4th four students at Kent State University in Ohio were killed and nine others wounded by Ohio National Guardsmen at a protest against the Cambodian incursion (only 10 days later (May 14th) two other students were killed and 12 injured at antiwar demonstrations at Jackson State University in Mississippi). On May 9th an estimated 100,000 marched on the Pentagon to protest the war and the killings at Kent State.[1]
These protests also touched Minnesota. On May 9th there was a large crowd that marched from the University of Minnesota (UM) campus in Minneapolis to the State Capitol Building in St. Paul. There also was a student strike at the UM.[2]
At the same time, a Minneapolis fundraiser was being planned by “People Against Missiles,” an ad hoc group, for Saturday night, May 9th, at the south Minneapolis home of Professor David Lykken, a noted UM behavioral geneticist and professor of psychology and psychiatry.[3] The fundraiser sought to raise money to send people to North Dakota to protest a proposed antiballistic missile installation. It was publicized by mailing postcards to people on local peace organizations’ mailing lists, by including notices in newsletters of several organizations and by distributing flyers primarily at the UM. The flyer stated that there would be “donations and cash bar.”[4]
Two days before the fundraiser, a Minneapolis policeman saw the flyer and took it to a meeting with the head of the Department’s Morals Squad. Since selling liquor without a license was a violation of a city ordinance, the Department head instructed two other policemen to “handle it in the usual manner,” which meant sending an officer to the gathering undercover and attempting to purchase some liquor.[5]
On the night of May 9th, 20 or so middle-aged adults attended the fundraiser. They were quiet, mainly engaging in small-group conversation about the antiballistic missile system, protesting the system, and current political issues, including the protest march earlier that day at the UM. Some had coffee and soda; others, beer. No one had wine or hard liquor. There was a basket for donations; another for “Donations, Beer 50 cents, Pop 25 cents.”[6]
Around 10:00 p.m. two police officers, under cover, came to the fundraiser. One of them had a beer and left a marked $5 bill in the basket and later 50 cents for another beer. He stayed for about an hour and engaged in conversation about the missile system and the activities of “People Against Missiles.”[7]
He and the other undercover policemen left the house for a nearby meeting with another officer of the Morals Squad and others from the Tactical Squad. They then made a plan for arresting the people at the professor’s home.[8]
Around midnight 10 to 20 uniformed officers descended on the house, arrested everyone and took them all (except the professor’s wife and their young son) downtown to Police headquarters where they were charged with being in a disorderly house and the professor with operating a disorderly house and selling liquor without a license; they also were fingerprinted, photographed and then released.[9]
One of the Police leaders conducted a search of the house and seized beer (and wine and hard liquor that was not available at the event) as well as every piece of paper in sight on the first floor of the house, including People Against Missiles and other anti-war literature.[10]
Later all of the criminal charges were dismissed by the local court, and another lawyer (Bill Kampf[11]) and I volunteered to be the pro bono (no fee) lawyers on behalf of the Minnesota Civil Liberties Union[12] for those who had been arrested in a lawsuit for damages against the policemen who were involved for violation of their constitutional rights. We did just that with a complaint by the 20 people who had been arrested against the 20 or so policemen and other officials who had been involved.[13] The case was filed in Minnesota’s federal court.[14]
During the course of pretrial discovery, I obtained what turned out to be critical evidence in the Police files. These documents indicated that immediately after the arrests the Police leader of the raid called the local office of the FBI to report the identity of the arrestees and the political nature of the seized documents. Some, for example, mentioned the Socialist Workers Party.[15]
Eventually Bill Kampf and I tried the case to the court without a jury. U.S. District Judge Philip Neville[16] conducted the trial and concluded that three of the policemen were liable to the 20 plaintiffs for $11,500 compensatory damages plus $7,500 punitive damages. As the court stated, these three policemen “instigated, planned, and directed the raid [with two of them] . . . actually effecting the arrests. They had first-hand knowledge of the true nature of the gathering . . . and were the only ones who effectively might have and should have prevented the raid. . . . Their decision . . . not only evidences bad judgment . . ., but more importantly displays a callous disregard for the constitutional rights of other who may have been of different political persuasion. Such activity . . . will not be tolerated. . . .”[17]
In concluding that the three policemen had violated the plaintiffs’ constitutional protection under the U.S. Constitution’s Fourth Amendment’s ban on unreasonable searches and seizures, the court stated, “the arrests . . . were improperly motivated, undertaken not in furtherance of good faith law enforcement but for the purpose of harassing those at the gathering because of their political beliefs.” Under all the circumstances, the “police could only have been motivated by a desire to harass the guests at the fundraiser, and/or attempt to set an example for others who might stage antiwar gatherings.” Important in that regard was the evidence of the lead Policeman’s immediately calling the FBI about the political documents that were seized.[18]
After the judgment was entered against the three policemen, the Minneapolis City Council voted to pay the judgment on behalf of the three, a decision that was upheld by the Minnesota Supreme Court in a taxpayer’s lawsuit.[19]
This case shows how the U.S. political passions of 1970 affected a city in the middle of the country. It also illustrates the importance of lawyers willing to defend civil liberties on a pro bono basis and of a strong, independent judiciary.
[1] Wikipedia, 1970, http://Wikipedia.org/wiki/1970.
[2] Lykken v. Vavreck, 366 F. Supp. 586, 588 (D. Minn. 1973. I found copyrighted photos of the large May 9th crowd in front of the Minnesota Capitol under the heading Minnesota State Capitol Demonstrations at http://www.flickr.com/photos/minnesotahistoricalsociety.
[3] Obituary, David Lykken, U of M psychology professor, StarTribune (Sept. 20, 2006).
[4]366 F. Supp at 587.
[5] Id. at 588.
[6] Id.
[7] Id. at 588-89.
[8] Id. at 589.
[9] Id.
[10] Id. at 590.
[11] Lerner, Attorney W. Kampf dies; was expert on bankruptcy, StarTribune (Sept. 18, 2005). As Bill and I worked on the case together, we became friends and often joked that we brought our different skills to make a good team. I was organized, methodical and persistent, and Bill was more instinctive and risk-taking.
[12] The Minnesota Civil Liberties Union was an affiliate of the American Civil Liberties Union and is now known as the American Civil Liberties Union of Minnesota, http://www.aclu-mn.org.
[13] 366 F. Supp. at 587, 590.
[14] See Post: Minnesota’s Federal Court (June 28, 2011).
[15] 366 F. Supp. at 590; Minnesota Historical Society, Socialist Workers Party: Minnesota Section (Box 2), http://www.mnhs.org/library/findaids/00632.xml; Minnesota Historical Society, Minnesota Civil Liberties Union (Box 23), http://www.mnhs.org/library/findaids/00497.xml.
[16] Judge Neville also was in charge of the consolidated pretrial proceedings in the private IBM antitrust cases. (See Post: The IBM Antitrust Litigation (July 30, 2011).)
[17] 366 F. Supp. at 599.
[18] Id. at 593.
[19] Douglas v. City of Minneapolis, 304 Minn. 259, 230 N.W.2d 577 (1975).