Title: U.S. v. Gordon Hirabayashi Amended Demurrer, June 1942, (denshopd-p72-00093)
Densho ID: denshopd-p72-00093

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, NORTHERN DIVISION

UNITED STATES OF AMERICA, Plaintiff

vs.

GORDON KIYOSHI HIRABAYASHI, Defendant

NO. 45738

AMENDED DEMURRER

Comes now Gordon Kiyoshi Hirabayashi, defendant above named and demurs to the Indictment herein upon the following grounds as to Count I:

1.

That said Count I of the Indictment fails to state facts sufficient to constitute a crime;

2.

That Public Law No. 503, 77th Congress, approved March 21, 1942 under and pursuant to which this action is brought is too indefinite and too uncertain to be a valid criminal statute, and said Public Law No. 503 is unconstitutional and void in that it fails to define any crime or course of conduct the violation of which will constitute a crime, and said Public Law fails to define with reasonable precision what act or acts it intends to prohibit.

3.

The Civilian Exclusion Order No. 57, dated May 10, 1942, is unconstitutional and void for the reason that J.L. DeWitt, Lieutenant General of the United States Army, the Military Commander who issued said Order was without any power or authority to add or create any class of persons subject to the provisions thereof and designated as "persons of Japanese ancestry".

4.

That said Order of the Military Commander above referred to is further unconstitutional and void for the reason that, if carried into effect, said order would deprive this defendant of his liberty and property without due process of law in violation of the Fifth Amendment to the Constitution of the United States of America.

5.

That said Order of the Military Commander above referred to is unconstitutional and void for the reason that, if carried into effect, it would deprive this defendant, an American citizen, of the privileges and immunities to which the citizens in the several states are entitled, in violation of and contrary to the provisions of Article IV, Section 2, Clause 1 of the Constitution of the United States of America.

6.

That said Order of the Military Commander hereinabove referred to was an is unauthorized and void for the reason that it was not authorized by the Executive Order No 9066 referred to in Count I of the indictment, nor by any other order of the President of the United States.

7.

That said Order of the Military Commander hereinabove referred to is and was unauthorized and void for the reason that said Executive Order No. 9066 referred to in Count I is unconstitutional and void insofar as it attempts to include in the class of persons who may be excluded any other persons than the alien enemies defined in section 21, title 50 of the United States Code pursuant to which said Executive Order was issued.

8.

That said Public Law No. 503 and said Executive Order and the Public Proclamations and Military Orders hereinabove and in Count I referred to, are unconstitutional and void for the reason that they violate the rights of this defendant to be free from unreasonable seizure of his person under the Fourth Amendment to the Constitution of the United States of America.

9.

That said Public Law No. 503 above referred to is unconstitutional and void for the reason that it fails to set up any standards for the regulations which the Military Commanders were permitted to promulgate and is therefore an unconstitutional delegation of the powers of the legislature.

INSTRUCTION NO. ___

You are instructed that under a statute enacted by the Congress of the United States, alien enemies are defined as the "natives, citizens, denizens or subjects of the hostile nation or government" which has been declared by the President to be at war with the United States.

You are further instructed that the law presumes that such an alien enemy as above defined will commit acts of espionage or sabotage against the United States, and on the basis of such presumption such an alien enemy can be temporarily restricted in his liberty of movement, or can be temporarily excluded from a military area, or can be temporarily compelled to obey curfew or other regulations relative to his movements and conduct; but that before such restriction of liberty, exclusion from a military area or obedience to such regulations could be made permanent, such alien enemy would first have to be charged with the commission of some act or acts of espionage or sabotage against the United States and have been granted a hearing before an impartial tribunal where he could defend himself against such charges, and must have been found guilty of the act or acts charged.

But you are further instructed that as to citizens of the United States of America no such presumption as above described exists either in law or in fact, and that before any citizen of the United States of America can be temporarily or permanently excluded from a military area or compelled to obey curfew or other regulations or have his liberty of movement restricted, he must first have been charged with some act or acts of espionage or sabotage against the United States, have been granted a hearing on such charges before an impartial tribunal, and have been found guilty of the acts charged.

That said Public Proclamation No. 3 referred to in Count II is and was unauthorized and void for the reason that it is not authorized by any valid legislative act or law of the Congress of the United States of America.

[Signed]

FRANK E. WALTERS

Attorney for the Defendant.