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Court Overturns Japanese-American's 1942 Curfew Conviction

September 25, 1987|RONALD L. SOBLE | Times Staff Writer

Citing a suppressed government report providing evidence that Japanese-Americans were imprisoned during World War II for racial rather than military reasons, a federal appeals court Thursday overturned the conviction of a Japanese-American for resisting a wartime curfew order.

The ruling came in the case of Gordon Hirabayashi, who retired four years ago as a sociology professor at the University of Alberta in Edmonton, Canada.

Orders Tested

In 1942, at the age of 23 and while a student at the University of Washington in Seattle, Hirabayashi took it upon himself to violate wartime orders requiring all people of Japanese ancestry--U.S. citizens or not--to stay home between the hours of 8 p.m. and 6 a.m. The curfew and internment cases of World War II "have never occupied an honored place in our history," said a unanimous three-judge decision of the 9th U.S. Circuit Court of Appeals.

Writing for the court, Judge Mary M. Schroeder said documents uncovered since World War II demonstrate that curfew and internment convictions of Japanese-Americans "were unjust," adding:

"They demonstrate that there could have been no reasonable military assessment of an emergency at the time, that the orders were based upon racial stereotypes and that the orders caused needless suffering and shame for thousands of American citizens."

The Justice Department declined to comment on whether it will appeal the decision.

San Francisco attorney Donald K. Tamaki, one of a team of lawyers who have fought the curfew and internment violation convictions, said that Thursday's decision "is the first federal appellate case repudiating the military curfew orders."

'Besieged Minority'

Tamaki said that Hirabayashi, at a time when "the Japanese community was a besieged minority, took it upon himself to be his own test case," purposely walking the streets of Seattle during curfew hours until he was arrested.

Of more than 110,000 Japanese-Americans held in camps during World War II, only a handful were charged with violating curfew or other military orders, Tamaki said. Hirabayashi, he added, was one of only three Japanese-Americans to make constitutional challenges, which were rejected by the U.S. Supreme Court in 1943 and 1944.

The key document that revived the Hirabayashi case was uncovered by an archivist researcher in 1982 and disclosed a previously unknown original version of a 1942 report by the military commander on the West Coast, Lt. Gen. John DeWitt. DeWitt said all people of Japanese ancestry would have to be evacuated to detention centers for the war's duration because racial traits made it impossible to separate the loyal from the disloyal.

"It was not that there was insufficient time in which to make such a determination; it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the 'sheep from the goats' was unfeasible," DeWitt wrote.

Language Deleted

The government subsequently deleted this language and instead said the emergency military situation was required because "no ready means existed for determining the loyal and the disloyal with any degree of safety."

Last year, a federal court in Seattle overturned Hirabayashi's conviction for violating the order to report to a control center, but let his curfew conviction stand.

Hirabayashi called Thursday's decision "very good news." He said his case was an "attempt to prevent this sort of thing from happening again."

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