Duncan v. Kirby

Duncan v. Kirby was a state court case decided in March of 1958 arising out of the 1957 Little Rock Crisis. The moving party in this case, one Vernon Duncan, a pro-segregation protestor, was arrested in front of Central High School on 3 October 1957 for “Disturbing the Peace” and for “Refusing to Obey a Lawful Order of an Officer of the U.S. Army.”  Although the Little Rock Municipal Court acquitted Mr. Duncan of the disturbing the peace charge, it convicted him of the refusing to obey charge. Mr Duncan then appealed his conviction to a State Circuit Court, arguing that his conviction should be dismissed because President Eisenhower had exceeded his legal authority to send U.S. troops into Little Rock in the first place. After the Circuit Court denied his appeal, Mr Duncan took his case up to the Arkansas Supreme Court, seeking a petition for a writ of prohibition to prevent the Circuit Court from punishing him on the refusing to obey charge. The Arkansas Supreme Court ruled 4 to 3 in favor of Mr Duncan (the dissenting justices would have denied Mr Duncan’s petition out of hand), but the majority did not pass judgment on the legality of President Eisenhower’s use of military force in Little Rock. Instead, the majority of the justices decided this case on more narrow grounds: that at the time of Mr Duncan’s arrest it was not a crime in Arkansas to refuse to obey a federal military order.

Although Duncan v. Kirby avoided the fundamental constitutional question regarding the legality of President Eisenhower’s military action in Little Rock, this obscure case is still worth mentioning, for it symbolizes the overall deferential and lenient treatment that pro-segregation protestors received during the troubles in Little Rock in the fall of 1957. According to one historian of the Little Rock Crisis (Scheips, 2012, pp. 62-63), by the end of October of 1957 “some fifty-six persons had been arrested on various State law charges connected with disorders at the school, but the local police court had deferred the cases,” and of these 56 protestors, only seven received a fine, and six of the seven had their fines suspended. Moreover, not a single federal prosecution was brought against any of the protestors! In any case (pun intended), Duncan v. Kirby was not the only case to challenge the legality of President Eisenhower’s use of force in Little Rock. We will review our third Little Rock case, Jackson v. Kuhn, in our next post. (Source cited (pictured below): Paul J. Scheips, The role of federal military forces in domestic disorders, 1945-1992, Center of Military History, U.S. Army, 2012.)

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