Charles D. Long v. District of Columbia

J. SKELLY WRIGHT, Circuit Judge,

concurring:

I join parts I and IV of Judge Wilk-ey’s opinion. I also agree that Long’s request for an injunction should have been dismissed without an evidentiary hearing. Likewise, his request for interrogatories to uncover detailed information concerning current stop-and-frisk practices was properly denied. My agreement with the majority, however, should not be interpreted as a disinclination to authorize equitable relief against a clearly alleged and proven pattern of police illegality. Injunctive relief against Fourth Amendment violations is appropriate upon proof that such violations have occurred repeatedly and may well continue. See Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966); Gomez v. Wilson, 323 F.Supp. 87 (D.D.C.1971). The security of our citizens from official lawlessness, with its corrosive effect on private citizens’ self-discipline and respect for government, demands no less. But such relief must not be granted lightly, for unduly obtrusive or hasty judicial intervention can undermine the important values of police self-restraint and self-respect.

As I read it, however, the complaint for injunctive relief is insufficient to warrant further judicial action at this time. First, it lacks any specific suggestion that the police’s alleged refusal to conform its “stop and frisk” policy to the Fourth Amendment’s restraints is sufficiently pervasive to warrant relief. 1 Apart from the plaintiff’s own unrepeated encounter, no actual incidents of police illegality are alleged. Apart from his vague allegations, Long provides no specific facts suggesting that either he or anyone else has actually been victimized by police illegality in employing the stop and frisk practice since February, 1969. Additional detail as to actual incidents, suggesting that the plaintiff was repeatedly victimized 2 or that members of a class were victims of a pervasive pattern or practice, would obviously present a wholly different case.

The letter written by Police Chief Layton after the February 1969 incident and maintaining the propriety of the questioned police action 3 does not alter my conclusion. Assuming that the original stop and frisk was unlawful, it seems to me that the letter’s endorsement of the police action in question was superseded by regulations issued later the same year. 4 Those guidelines, as I read them, emphasize that the “reasonable suspicion” standard for an investigative stop must be based on “specific facts” 5 and can be read as disapproving police detention of any citizen upon merely the unelaborated “suspicion” of another citizen. Thus, I have difficulty believing that the plaintiff is realistically threatened by a repetition of the 1969 incident.

*935 This is not to intimate that the current guidelines, which the plaintiff challenges as a class representative, are immune from constitutional challenge. But such a challenge requires a specific allegation that they are actually being applied, or a specific indication that Long or members of his class are threatened by them. Long’s unfortunate encounter three years ago hardly indicates that the guidelines presently threaten him. Although the contours of Article Ill’s case and controversy requirement are hardly sharp, 6 unspecified allegations of harm and a resultant chilling effect without more suggest a claim that is insufficiently concrete to invoke the District Court’s jurisdiction. Relevant facts indicating a likelihood of past or impending unlawful action infringing on plaintiffs’ interests must be pleaded. 7 See Lion Mfg. Corp. v. Kennedy, 117 U. S.App.D.C. 367, 373, 330 F.2d 833, 839 (1964); Boyle v. Landry, 401 U.S. 77, 81 , 91 S.Ct. 758 , 27 L.Ed.2d 696 (1971); Lake Carriers’ Association v. MacMullan, 406 U.S. 498, 507, 508 , 92 S.Ct. 1749 , 32 L.Ed.2d 257 (1972). It was thus proper for the District Court to refuse to proceed with Long's request to serve interrogatories.

As both the District Court and Judge Wilkey note, Long is still free to maintain his individual complaint for damages in the Court of General Sessions. This action, as Judge Wilkey acknowledges, is anything but frivolous. Although the Supreme Court has failed to rule on the precise question, there is grave doubt whether a police officer may lawfully accost a citizen — the first step in a stop and frisk — on the basis of another citizen’s mere suspicion unelab-orated by any specific observations. Certainly, a telephone report of “suspicion,” without more, does not amount to “specific and articulable facts which, taken together with the rational inferences from the facts, reasonably warrant the intrusion.” Gomez v. Wilson, 323 F.Supp. 87, 92 (D.D.C.1971). Likewise, police must show more than a mere hunch that the subject of investigation might be dangerous to justify a pat-down frisk following the initial stop. See Terry v. Ohio, 392 U.S. 1, 27 , 88 S. Ct. 1868 , 20 L.Ed.2d 889 (1968).

As I read it, the Supreme Court’s recent ruling in Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972), does not liberalize these restraints on police conduct. Adams dealt merely with the question whether stop and frisk could be based on the word of an informer as well as on firsthand police observation. Compare Terry v. Ohio, swpra, 392 U.S. 5 -6, 88 S.Ct. 1868 (1968). Although Adams answered this question affirmatively, it also stressed the specificity of the informer’s tip and his prior contact with the police officer who subsequently carried out the stop and frisk with the informer apparently looking on. 40 U.S. L.Week at 4725. See also Williams v. Adams, 436 F.2d 30, 33 (2nd Cir. 1970). Thus, there is good reason to believe that the police’s encounter with Long may rest on too thin a reed.

. Compare Lankford v. Gelston, 364 F.2d 197, 201 (4th Cir. 1966) with Peek v. Mitchell, 419 F.2d 575, 579 (6th Cir. 1970) and Carter v. Chief of Police, 437 F.2d 413, 415 (3rd Cir. 1971) See generally, Note, The Federal Injunction as a Remedy for Unconstitutional Police Conduct, 78 Yale L.J. 143 , 151-52 n. 35 (1968).

. See, e. g., Gomez v. Layton, 129 U.S. App.D.C. 289, 291, 394 F.2d 794, 796 (1968).

. Joint Appendix at 11-12.

. Id. at 13-21. The guidelines were issued on August 27, 1969, two months after Long’s attorney received Chief of Police Layton’s letter.

. Id. at 15.

. See Davis v. Ichord, 143 U.S.App.D.C. 183, 196 , 442 F.2d 1207, 1220 (1970) (Leventhal, L, concurring).

. For example, Long might have alleged in his complaint specific evidence of unlawful police stop and frisk practice by pointing to recent decisions in this jurisdiction suppressing evidence.