The District police department's handling of a decade worth of political protests here withstood another court test yesterday, but only after an unusual appellate ruling that at the sametime seemed critical of the manner in which the police handled those demonstrations.
Five of the nine members of the U.S. Court of Appeals indicated in opinion yesterday that they disagreed with an earlier three-judge appellate ruling that had endorsed the police handling of those protests. However, the five judges still refused to consider rehearsing the case or setting aside the earlier ruling, saying they felt a new atmosphere in the police department probably would prevent such problems in the future.
The court's action was prompted by the presence of a new police chief who follows a "low-key approach" to handling of demonstrations, and what U.S. Circuit Chief Judge David L. Bazelon said was a "disinclination . . . to engage the court's energy" in clarifying the earlier ruling.
" . . . It makes sense on prudential grounds to let the smoke clear," added U.S. Circuit Judge Harold H. Leventhal for Bazelon and three other circuit judges in refusing the request by the American Civil Liberties Union that the full nine-member court rehear the case.
The ruling yesterday was the third in the seven-year-old lawsuit that alleged massive illegalities by police and questioned the handling by the Metropolitan Police Department of every major demonstration here over the past decade.
In 1975, U.S. District Judge Joseph C. Waddy found the police had illegally used clubs, tear gas, stampede tactics, mass arrests and violated the civil rights of participants in those demonstrations.
In April of this year, however, the three-judges federal appelate panel reversed Waddy and unequivocally endorsed the police handling of the demonstrations. That opinion, written by U.S. Circuit Judge Roger Robb, said the police department did only what was necessary to keep the streets clear of demonstrators and that any police misconduct was minimal and isolated.
The ACLU, which filed the suit on behalf of the Washington Mobilization Committee that coordinated many of the massive antiwar demonstrations here in the late 1960s and early 1970s, then asked all nine members of the appeals court here to hear the case.
The U.S. Court of Appeals here has the reputation of being split along liberal-conservative lines, with Robb and one of the other judges who agreed with him in the three-judges ruling being staunchly in the conservative camp. None of the court's so-called "liberal" members participated in the original ruling. The third judge was an out-of-state jurist who was sitting temporarily here.
Only a few of the hundreds of cases filed in the appeals court yearly are heard by all nine judges sitting "enbanc," a time consuming process that often results in a clear view of the liberal-conservative lines of the body.
Bazelon, known as one of the most liberal members of the court, said in his opinion released yesterday that he would "ordinarily" vote to rehear the case. He said, however, that he felt the opinion written by Leventhal yesterday "narrowly confine(d) the precedential value" of the earler ruling and that "recurrent problems" concerning police handling of demonstrations are not likely to occur.
Laventhal, known as one of the two "swing" votes on the court, said in his opinion that he wanted to "remind all concerned" that refusing to deny a rehearing "does not necessarily connote agreement with the decision as rendered."
Since the demonstrations in question occured, "a new police chief has had the benefit of reflection concerning what was done in the past and what the courts have said about those incidents," Leventhal added.
The demonstrations at issue mostly occured while Jerry V. Wilson was chief of police. Wilson, who personally directed the handling of demonstrations on numerous occasions, has since been replaced by Maurice J. Cullinance, whose administration has not had to cope with protests the size of those confronted by Wilson.
Agreeing with Leventhal on his reasoning for denying the rehearing were another so-called "swing" vote judge, U.S. Circuit Judge Carl McGowan, and the two judges usually placed with Bazelon in the court's liberal wing - U.S. Circuit Judges J. Skelly Wright and Spottswood Robinson III.