now part of the Illinois Municipal Code. In this connection, it should also be pointed out that certain specific sections of the Municipal Code were repealed by the Tort Immunity Act, but the mob violence statute was not included in the repealer.

It may be noted in passing that the new tort immunity statute has not yet been tested or interpreted by the courts. However, a majority of cases from other jurisdictions have sustained statutory exemptions from tort liability, although in a few cases such statutes have been held to be unconstitutional.10 An Illinois statute which purported to give immunity to park districts was recently unconstitutional in the case of Harvey v. Clyde Park District." The statute was declared void, however, because of an invalid classification of municipal corporations. The court pointed out that cities, villages, park districts, school districts and forest preserve districts all maintained similar recreational facilities and that if the plaintiff had been injured in a facility maintained by a school district or other governmental unit, recovery would have been permitted. Mr. Justice Schaefer, however, clearly left the door open to enact a valid tort immunity statute when he said: "From this decision it does not follow that no valid classifications for purposes of municipal tort liability are possible. On the contrary it is feasible, and it may be thought desirable, to classify in terms of types of municipal function, instead of classifying among different governmental agencies that perform the same function. Capacity to distribute some kinds of risks through insurance may be thought to be a relevant consideration. Under the Federal Tort Claims Act, which waives the sovereign immunity of the United States, there are numerous exceptions, perhaps the most important of which relates to discretionary acts. (28 U.S.C. § 2680.) The recent California legislation carves out numerous areas of nonliability, the most important of which also relates to discretionary acts. (See Cobey, The New California Tort Liability Statutes, 1 Harv. J. Legis. 16 (1964).) These illustrations do not exhaust the possibilities."

99 12

Thus, it may be concluded that the recent legislation which applies to all municipal corporations will probably be sustained against a constitutional attack, but it seems highly unlikely that it could be construed to, in effect, repeal the mob violence statute.

THE ILLINOIS EXPERIENCE

13

As indicated above, the original mob violence statute included in the old Criminal Code was sustained by the United States Supreme Court, as well as the Illinois Supreme Court, on several occasions. This statute, while permitting recovery for up to three-fourths of property damage sustained, was in the nature of an anti-lynching statute with respect to personal injury or death. As a result, in several Illinois cases, the court took a narrow view and held the city not liable for mob action when the rioters were not attempting to assume powers "lawfully authorized to other persons" or the victim had not been supposed to have committed a crime.

15

Thus, in the case of Anderson v. City of Chicago," the court held the city was not liable when the plaintiff was a mere bystander at the scene of a clash of police officers and strikers marching on a plant. In the case of Brannock v. City of Chicago, a Negro woman was hit by stones and rocks thrown by a group of 30 or 40 white men. Apparently several automobiles had been damaged and overturned in the same area and a number of similar incidents occurred. The court held, however, that the record failed to establish that the persons were congregated "for the purpose of exercising correctional powers over the plaintiff." The statute was regarded primarily as an anti-lynching or anti-vigilante enactment and, being in derogation of the common law, was strictly construed.

However, in the case of Slaton v. City of Chicago,16 arising out of the Fernwood housing project riots in 1947 where there was attempted integration in a previously all-white public housing project, the Appellate Court, speaking through Judge Robson, took a much more liberal and perhaps realistic view of the mob

Ill. Rev. Stat. 1965, Ch. 85, § 10-101.

10 Antieau, Municipal Corporation Law, § 13.00.

11 32 Ill. 2d 60; 203 N.E. 2d 573.

12 203 N.E. 2d 573, 577.

13 City of Chicago v. Sturges, 222 U.S. 313; City of Chicago v. Sturges, 237 Ill. 46; Dawson Soap Company v. City of Chicago, 234 Ill. 314; City of Chicago v. Manhattan Cement Company, 178 Ill. 372.

14 313 Ill. App. 616.

15 348 Ill. App. 484.

16 8 Ill. App. 2d 47.

violence statute. In a scholarly opinion, Judge Robson pointed out that "one of the objects of the statute is to impose sanctions against the citizens of the community when they participate in or allow the condition to arise that we find in the instant case."

In the specific case, several thousand persons had assembled around the project in question between 9:00 and 11:00 p.m. Members of the mob stopped cars and opened their doors to find out whether there were any Negroes in them. The plaintiff was stopped at the intersection of 103rd and Halsted Street. The members of the crowd started throwing bricks at the car and its occupants. One of them struck the plaintiff on the right side of the skull and another struck a woman occupant of the automobile. The plaintiff was rendered unconscious and was bleeding profusely. The lower court had directed a verdict against the plaintiff apparently on the theory that the mob involved was not attempting to exercise correctional powers or regulative powers and that the victim was not supposed to have been guilty of a violation of the law. In words which seem strikingly prophetic, Judge Robson said:

"It is with this historical and legislative background that we consider the issue in this case. Involved is a social problem inherent in our system of society and far-reaching in importance. Our people are of varied religious, ethnic, economic and cultural backgrounds. We have assumed world leadership in the establishment of a system of government wherein the incidents of birth and life have not been permitted to determine the rights of citizens before the law. No group or segment of a community has the right to dictate by force or by other unlawful means who shall or shall not live within the community. The unlawful assembly of people gathered together in the instant case apparently believed that the duly constituted authorities in admitting colored tenants into the housing project were harming the community. Allowing these tenants to remain in the project. they believed, would be detrimental to the value of the community property and ultimately affect the way of life in the community. They therefore undertook to prevent the entrance of Negroes into their community. In so doing they were not acting to promote their individual interests but what they wrongfully assumed to be a collective or community interest. They thus supplanted the legally constituted officers of the community, and it was in the pursuit of this unlawful arrogation of authority that the plaintiff was injured. This we consider to be the distinguishing feature of this case.'

99 17

He rejected the narrow interpretation of the Anderson case which turned on the requirement that the mob must be arrogating to themselves the powers given to the state and its municipalities and went on to say:

"We believe, however, when we consider the historical and legislative background, that this interpretation is too narrow and restrictive and that for this court to adopt it would render the statute impotent. We believe a more logical interpretation of the statute would allow recovery under the Act in those cases where it is shown that the unlawful crowd of people was assembled for the purpose of carrying out what it believed was its collective or community interest, and in the execution of that purpose took over the powers lawfully delegated to and vested in the local authorities in order to exercise such powers correctionally and summarily over the plaintiff.""

It should, of course, be noted that the present statute does not require that the mob be assembled for the purpose of offering violence to the person or property of someone supposed to have been guilty of a violation of the law or for the purpose of exercising correctional powers or regulative powers by violence without lawful authority. Instead, as indicated, our present statute makes the municipality liable when a person is injured by the use of force or violence disturbing the public peace by a mob consisting of 20 or more persons acting together and without authority of law.

There have been no cases decided under the present mob violence statute, but it seems clear that the statute, particularly as bolstered by the reasoning of the Slaton case, makes the municipality absolutely liable for personal injury or property damage resulting from the use of force or violence disturbing the public peace by a group of 20 or more persons. Although the Harvey case makes possible an argument that the 5,000 population classification renders the statute invalid, this classification is at least reasonably related to the ability to provide police protection. It is thus likely that, when tested by our Supreme Court,

178 Ill. App. 2d 47, 55.

18 8 Ill. App. 2d 47, 58.

the statute will be sustained. In fact, an argument could well be made that since the doctrine of sovereign immunity no longer applies, absent statutory immunity, recovery for mob violence would be possible even without a statute, although in such instance, negligence or nonfeasance on the part of the municipality might be required.

CONCLUSION

Based on the foregoing, it must be concluded that at a time when mob violence has become too common an occurrence, the law in Illinois clearly makes the municipality liable for property damage and personal injury, regardless of the best efforts of the community to preserve peace and order. The argument that the community should assume the loss of the innocent individual who was the victim of mob action still remains compelling although the other reasons advanced in support of the mob violence statute may seem unrealistic. It is not likely that these statutes have deterred riot participation through fear of increased taxes nor does the record suggest that police protection would in any way be diminished if the municipality was not liable for riot damage. It is apparent that municipal officials, particularly in the smaller communities that lack large police forces, must give serious attention to the possibility that an unexpected riot or other mob action may produce liability well beyond the financial resources of the community.

It may well be that the existence of the mob violence statute in its present form will cause municipal officials to be extremely reluctant about permitting protest marches, parades and other types of controversial public demonstrations which may trigger violence. It would be ironic indeed if the mob violence statute, which has now been amended and construed to produce municipal liability without fault, in an effort to protect the innocent victim of mob violence, should become the excuse for municipal reluctance to sanction public demonstrations and other gatherings intended to promote individual rights. Yet anyone familiar with the fact that most of our suburban communities at least are woefully undermanned and under-equipped as far as police departments are concerned must recognize that the mob violence statute can produce terrific burdens and cause even sympathetic public officials to go slow in granting permits for parades or the use of public facilities for controversial activities. It would also seem that some governmental unit of greater financial resources should be required to stand behind the municipality if liability for mob violence is to be continued in its present form. Perhaps the ultimate liability should lie with the State of Illinois with some sort of contribution from local government if there is to be full recovery for damages sustained through mob violence.

Many municipalities have liability insurance to protect them against claims of all kinds. In fact, the Tort Immunity Act" specifically provides that a local public entity may contract for insurance against any loss or liability which may be imposed upon it under this Act. Most general liability insurance policies presently do include coverage against liability for mob damage. Yet it is highly likely that in view of the present conditions, many insurance carriers will be unwilling to write such insurance. This will be particularly true if there should be a flurry of lawsuits resulting from recent mob damage in Chicago. At the very least, the State should share the liability if the local government is unable to secure insurance.

On balance, however, it seems inconsistent that the legislature has seen fit to grant a wide range of tort immunity to local governments, while at the same time imposing the possibility of extensive liability through the mob violence statute. Recognizing that there may well be an overriding public interest in the maintenance of some form of municipal liability for mob damage, it would seem that the statute should at least be amended to impose liability on the municipality only if there was negligence or nonfeasance on the part of the municipality in providing police protection.

For those of us who represent municipalities, a realistic view of the present status of the law in this field would suggest steps which should be taken in order to protect the municipality against such liability and to mitigate such damages as may accrue. They would include the following:

1. Make certain that the police departments are specifically trained to deal with mob violence and riot control. The problem of police training is always an im

19 Ill. Rev. Stat. 1965, Ch. 85, § 9-103.

portant one. The legislature through the Police Training Act of 1965 has taken the first step toward providing a uniform educational program for the training of our police officers. This program should include effective riot control training and the individual departments should be adequately trained to anticipate and prevent the kind of outbreaks which have unfortunately occurred. There should also be a program of intercommunity cooperation developed so that riot situations can be handled promptly and with maximum manpower available.

2. Make certain that insurance coverage is adequate.-Many of the smaller communities have extensive liability insurance programs. It is incumbent upon the municipal attorney to make certain that this area is adequately covered. It is to be hoped that the insurance companies do not attempt to eliminate such coverage from municipal policies.

3. Seek appropriate statutory amendments.-Such amendment could involve setting up defenses for municipalities when the plaintiffs were guilty of contributory negligence or failed to exercise due care for their own safety. Again liability might be precluded if the municipality was not negligent and had made reasonable efforts to prevent mob violence. Finally the possibility of requiring the State of Illinois or the county to share in the liability should be examined. 4. Prompt enforcement of criminal sanctions against violators.-Article 25 of the Criminal Code 20 provides substantial penalties for participants in mob action. It would appear that the imposition of these strict penalties and proper circumstances might deter rioters in the future. Certainly token penalties or booking offenders on lesser charges can only contribute to a disrespect for the law and encourage further violations. As noted, the municipality does have a lien in the amount of moneys recovered by plaintiffs against persons participating in mob action. In practice these lien rights may be valueless.

It is, of course, possible that the Local Governmental and Governmental Employees Tort Immunity Act could be amended to specifically grant immunity to a municipality from claims arising out of mob action. The conflicting policy decisions involved in seeking such amendments, however, deserve careful consideration and the possibility of outright immunity or repeal of Section 1-4-8 of the Illinois Municipal Code seems unlikely. Thus it may be concluded that this is another problem that already overburdened municipal officials will have to assume, at least until the threat of mob violence is vitiated.

The only real answer to the problem must lie in the re-establishment of peace and security in our community. The mob violence statute is a recognition that respect for the law is not always prevalent. As lawyers we all have a basic responsibility to promote that respect for law and order which will render such statutes unnecessary.

Mr. WHITENER. Thank you very much, Mr. Friedel.

Are there any questions? Mr. McMillan?

Mr. MCMILLAN. I assure you that our committee will do everything possible to expedite action on this bill.

Mr. FRIEDEL. Thank you.

Mr. MCMILLAN. Thank you for taking your time to appear before us. Mr. WHITENER. I notice on page two of your statement that you say: "But since the District government is responsible for maintaining law and order and for preventing and suppressing riots, looting and burning, then it seems only fair and reasonable to me that the District government should bear the cost of removing the resultant debris."

This is in line with the thinking of some of the citizens whose articles I have read in the papers, who are preparing law suits against the District government for not exercising due diligence in maintaining law and order and in the suppression of the rioting, as I understand it.

Mr. FRIEDEL. Mine does not go that far. This is as to the cost of removing the debris. I do not want to cast any reflections on the police department or the military. I think that they did a wonderful job.

20 Ill. Rev. Stat. 1965, Ch. 38, § 25-1.

Mr. WHITENER. Thank you very much, Mr. Friedel.

Mr. FRIEDEL. There are quite a few other people who want to be heard on this bill, and I want to thank you very much for this opportunity.

Mr. WHITENER. At this point we have Congressman Fountain, of North Carolina, who is a cosponsor of H.R. 16941, to present his testimony.

We are delighted to have you with us, Mr. Fountain. I believe this is the first time I have had the privilege of having my colleague before this subcommittee. He and I do a lot of talking every day on other matters and maybe on this, too. We will be delighted to hear from

you now.

STATEMENT OF HON. L. H. FOUNTAIN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA

Mr. FOUNTAIN. Thank you, Mr. Chairman and members of the committee. I would like to say that I have not had occasion to come before this subcommittee, because I felt that our interests have been well protected by my colleague who has just spoken, Mr. Whitener, from North Carolina.

First, let me thank the committee for meeting and taking testimony. There have been times when we were wondering whether any of our committees had the courage to sit down and listen to this subject and to take some action.

I am here this morning to join my colleagues in urging that your subcommittee favorably report a bill which would place appropriate restrictions on the uncontrolled use of public areas in the District of Columbia. I have joined Congressman Abbitt in a bill which leaves this matter in the discretion of the authorities as to whether or not they will permit parades or demonstrations. Frankly, the bill is too weak. I think that the committee can write appropriate legislation.

I introduced another bill which had been referred, I think, to the House Interior Committee, which provides, in effect, that the Secretary of the Interior shall not permit any person to camp upon or otherwise occupy overnight any land within the District of Columbia under his jurisdiction within the areas bounded on the east by 11th Street, S.E. and N.E., on the north by M Street, N.E. and S.E., and on the west and south of the Potomac and the Anacostia Rivers, including East Potomac Park which includes the central part of the District of Columbia.

As a sponsor of legislation which I think could be helpful I am gravely concerned that without some restriction the announced plans of those who are already marching on Washington will lead to disorder and disruption of the orderly functioning of our federal government. First, I think we should consider that public grounds are set aside for the general use and enjoyment of all of the people of this country, and to permit one group to erect tents or huts or other structures for an extended period of time denies all others the use of the property intended for all.

And let me emphasize this point: Such a practice may well plague Washington as the seat of government for years to come.