Petition — Conlisk v. Calvin

. In THe

Supreme Court of the Gnited States

Ocroper Term, 1975

No. 25-006 |

JAMES B. CONLISK, JE., etc., et al,

Petitioners,

vs.

ARDALE CALVIN, et al,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH OIROUIT

WILLIAM R. QUINLAN

Corporation Counsel of the City of Chicago

511 City Hall, Chicago, Illinois 60602

Attorney for Petitioners

DANIEL PASCALE

Ricuarp F. FRIEDMAN

Assistant Corporation Counsel

Of Counsel

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

TABLE OF CONTENTS

PAGE

LEI TES aae SNE ee eee eD 2

ST SOO ORAS TS ENT 2

QUESTIONS PRESENTED 0oo..........cccscccs-cscscessceesseeeoes 2

iD Vale Bi ht \ { ; | 3

STATEMENT OF CASE — 4

REASONS FOR GRANTING THE WRIT:

I.

The Question Of Justiciability Of The Claim

Seeking Court-Imposed Standards For The Chi-

eago Police Department Disciplinary System Is

Identical To The Question Pending In This Court

In Risso v. Goode, No. 74-42 ....................cccceccececseseees

IL.

A Split In The Circuits Exists Concerning

Whether Courts Of Equity May Require Court-

Imposed Operating Procedures To Remedy Police

ee I WI ics ccsssnincsnsannscnascemnieioaliimeaisaciaiabia

III.

The Decision Below Creates A Dangerous Prec-

edent In Conflict With The Traditional Rule Of

Equity By Permitting Judicial Encroachment

Upon Other Branches Of Government ....................

ii

IV.

The Complaint Was Insufficient To Establish

Federal Question Jurisdiction Of The Claim

Against The City Of Chicago .............---.---:11e1- 17

V.

The Organizations Have No Standing Because

Neither They Nor Their Members Were Alleged

To Have Suffered Actual Injury ...........................--. 18

IID sicccacnicscnseninnencssctnscnnesennsnnnsccsiinpnnsntscsnvenitntenmntinete 19

APPENDICES:

A—Opinion of the United States Court of Appeals .... la

B—Order of the United States Court of Appeals Deny-

eet TEI icici ncterevnesesnesescnnesnesimneneenenemenncancensess 18a

LIST OF AUTHORITIES CITED

Cases

Allee v. Medrano, 414 U.S. 1020 (1974) —...................... 11 15

Baker v. Carr, 369 U.S. 186 (1962) ........................ 12, 13, 14

Breault v. Feigenholtz, 380 F.2d 91 (1967) cert. denied,

BU Wt. GUE ccccnecssnsnciiicibebssinciesiniinienensensenesctbetittibiaslvienidsnmtmesueis 17

City of Kenosha v. Bruno, 412 U.S. 514 (1973) -.............- 17

Dandridge v. Williams, 397 U.S. 471, 486 (1970) ......... 15

Gilligan v. Morgan, 413 U.S. 1 (1974) .................... 6, 12, 13

lil

Goldsmith v. Southerland, 426 F.2d 1395 (6th Cir.1970) 17

Goode v. Rizzo, 506 F.2d 542 (1974), certiorari granted

420 U.S. 902 2, 8, 9, 10

Kenosha v. Bruno, 412 U.S. 507 (1973)

Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) ..... 11,15

O’Shea v. Littleton, 414 U.S. 488 (1973) 16, 18

Peek v. Mitchell, 419 F.2d 575 (1970) 2,9

| Statutes

28 U.S.C. § 1292(b) 7

28 U.S.C. § 1331 3, 6, 7, 17

28 U.S.C. § 1443(3) 6

42 U.S.C. § 1983 3, 6, 9, 15, 17

we

In THE

Supreme Court of the United States

Octoper Term, 1975 -

No.

JAMES B. CONLISK, JE., etc., et al,

Petitioners,

vs.

ARDALE CALVIN, et al,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners, James B. Conlisk, Jr., Superintendent of

Police, et al., respectfully pray that a Writ of Certiorari

issue to review the judgment of the United States Court

of Appeals for the Seventh Circuit entered in this cause.

alien

OPINION BELOW

The opinion of the Court of Appeals was handed down

June 30, 1975 and is reported at 520 F.2d 1. The opinion

is reproduced in Appendix A to this petition.

JURISDICTION

The opinion of the Seventh Circuit Court of Appeals

was handed down June 30, 1975. The respondents filed a

petition for rehearing, which the court denied _on

September 3, 1975 (Appendix B). This petition is filed

within 90 days of denial of rehearing. Jurisdiction of

this court is invoked pursuant to 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the justiciability issue decided by the

Seventh Circuit herein is identical to the justiciability

issue decided by the Third Circuit in Goode v. Rizzo, 506

F.2d 542 (1974), certiorari granted 420 U.S. 920 (Rizzo

rv. Goode, No. 74-942, presently pending).

2. Whether the Seventh Circuit’s judgment that the

complaint presents a justiciable issue is in conflict with

the Sixth Circuit’s decision in Peek v. Mitchell, 410 F.2d

575 (1970).

3. Whether the allegation that the Chicago Police

Department does not “effectively” control police miscon-

duct presents a justiciable issue; whether numerous

alleged acts of police misconduct permit a district court

to enter an order requiring the police disciplinary

procedures to conform to standards imposed by the

court and to submit to periodic reporting to the court.

4. Whether mere recitation without further substan-

tiation that the amount in controversy exceeds $10,000

enliien

establishes federal question jurisdiction of the City of

Chicago under 28 U.S.C. § 1331.

5. Whether the organization respondents had stand-

ing to sue if they alleged that they received citizen com-

plaints concerning police misconduct and that some of

their members are also individual plaintiffs in the suit.

STATUTES INVOLVED

42 U.S.C. § 1983.

Every: person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any State

or Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress.

28 U.S.C. § 1331.

(a) The district courts shall have original

jurisdiction of all civil actions wherein the matter

in controversy exceeds the sum or value of $10,000,

exclusive of interest and costs, and arises under the

Constitution, laws, or treaties of the United States.

(b) Except when express provision therefor is

otherwise made in a statute of the United States,

where the plaintiff is finally adjudged to be entitled

to recover less than the sum or value of $10,000,

computed without regard to any setoff or

counterclaim to which the defendant may be ad-

judged to be entitled, and exclusive of interests and

costs, the district court may deny costs to the plain-

tiff and, in addition, may impose costs on the

plaintiff.

_

STATEMENT OF CASE

Respondents are seven individuals who brought suit

against the respondents, claiming to have been subject

to certain specified acts of police misconduct, and three

organizations. All also allege that there exists a pattern

of police misconduct.

The first organization, the Afro-American Patrolmen’s

League, Inc. is composed of members of the Chicago

Police Department. The A.A.P.L. claims to have as its

goals improvement of police services, including reduc-

tion of incidents of police misconduct. No harm to its

members was alleged. The other two organizations are

Concerned Citizens for Police Reform and the Chicago

Urban League, which claim to have established

machinery for citizens to report incidents of police mis-

conduct. Concerned Citizens for Police Reform alleged

that some of seven individual respondents are members

of that organization, but the Chicago Urban League is

silent as to its members, or whether they are harmed.

The suit claimed as defendants the Superintendent of

Police and the individual members of the civilian dis-

ciplinary body of the Police Department, the Police

Board of the City of Chicago. In addition, the complaint

was against twelve named Chicago police officers and 25

“John Doe” police officers.

In addition to damages claimed by the seven named

individual respondents, the complaint sought equitable

relief in the form of imposition of respondent-devised

and court-imposed standards for disciplining errant

police officers. The thrust of the respondents’ claim is

that the present Chicago disciplinary system 1s not suf-

ficiently effective to halt the alleged pattern of police

misconduct. Respondents stated that police in-

vestigations of misconduct are _ not “thorough

eee. mE

—§—

(complaint, par. 24), and that the disciplinary system is

organized “in a highly subjective and discretionary

manner.” /bid. Respondents further stated that the

system does not take “appropriate disciplinary action”

(/bid., par. 25) and that petitioners have not taken action

to put into operation “appropriate reforms demanded of

many organizations over a period of years by various

persons and groups, including the Plaintiff

organizations. . . .” (Jbid., par. 27).

Specifically, the respondents sought to have the court

ultimately issue an injunction under the following terms

(/bid., Prayer for Relief, par. 2):

“2. Enter its Order granting a permanent in-

junction commanding defendants CONLISK, the

POLICE BOARD and the City oF CHICAGO, and their

agents and employees and those persons in active

concert or participation with them:

(a) To take all appropriate steps within their

power to prevent police officers from engaging in

unconstitutional misconduct and to discipline ap-

propriately and adequately officers who engage

in such misconduct; and,

(b) To effect the foregoing, to adopt and im-

plement an effective police dicipline system for

the receipt, investigation and disposition of com-

plaints for unconstitutional misconduct by

policemen, including among other provisions:

(i) Performance by non-police personnel of the

functions of receipt and investigation of such

complaints;

(ii) Opportunity for each complainant to be

fully informed concerning the procedures and ac-

tivities of the police discipline system in the

handling of his complaint;

—6—

(iii) Access for the public to information con-

cerning the procedures and performance of the

police discipline system, including the final

report on each complaint of unconstit..tional mis-

conduct;

(iv) Termination of any participation by the

police discipline system in the preparation of the

defense of pending or anticipated civil suits

against policemen; and

(v) Correction of the other deficiencies in the

organization and operation of the police discipline

system set forth in this Complaint or established

at trial.

“3. Retain jurisdiction and require defendants

CONLISK, the POLICE BOARD and the CITY OF

CHICAGO to report to the Court the steps they have

taken to implement and conform with the Court's

Order, such reports to be made at three month in-

tervals for at least three years.”

The district court, in a memorandum decision

reported at 367 F. Supp. 476 (N.D. Ill. 1974), dismissed

the claims for injunctive relief on the basis of this

Court’s recently handed down decision of Gilligan v.

Morgan, 413 U.S. 1 (1974).

The district court found that the issue of effectiveness

of police disciplinary system was not justiciable. The dis-

trict court further dismissed all claims against the City

of Chicago, holding that Kenosha v. Bruno, 412 U.S. 507

(1973) prohibited injunctive claims against the

municipality pursuant to 42 U.S.C. § 1983; jurisdiction

of the claims against the City of Chicago was not

available under 28 U.S.C. § 1343(3); the respondents had

not properly stated, in an amendment to their com-

plaint, the $10,000 jurisdictional amount for federal

question jurisdiction pursuant to 28 U.S.C. § 1331; and

that it declined to take pendant jurisdiction of the

==

claims against the City of Chicago. The organization

plaintiffs were dismissed because of lack of standing to

pursue the claim against the petitioners.

The respondents sought and were granted leave to

appeal to the Seventh Circuit Court of Appeals pursuant

to 28 U.S.C. § 1292(b). In its decision, the Seventh Cir-

cuit, although stating that the district court would “do

well” not to fashion its injunction too broadly, held that

the respondents’ claim for injunctive relief stated a

justiciable issue, and that if the district court found the

facts to be as the respondents alleged, court oversight of

the police disciplinary system was warranted. In addi-

tion, the court held that the respondents’ claim of $10,-

000 as the amount in controversy need be no more

specific than that to state a claim for federal question

jurisdiction against the City of Chicago pursuant to 28

U.S.C. § 1331. As to the standing of the organizations to

bring suit, the court confirmed the dismissal of the

Afro-American Patrolmen’s League for lack of standing,

hut stated that the demonstrated interest in community

affairs by the other two organizations and the fact that

they claimed harm to members was sufficient to confer

standing. In fact neither organization alleged any harm

to their members other than the individuals already

appearing as plaintiffs in the case.

=_=

REASONS FOR GRANTING THE WRIT

I.

Y OF THE

UESTION OF JUSTICIABILIT

cL SEEING SOR Oe LA

FOR THE CHI O THE QUES.

J Y SYSTEM IS IDENTICAL T

TION. PENDING IN THIS COURT IN R/ZZO v. GOODE,

NO. 74-942.

The facts and legal issues presented in Rizzo v. ee

No. 74-942, certiorari granted 420 U.S. 1003, vr t :

present case are identical. In both cases, the respon vs

had alleged a widespread pattern of police a we

In Rizzo, the individual and organization plaintif s ha

claimed that the Philadelphia Police Department's sia

nal disciplinary system was not capable of —_ wi

the problem. The court found the allegation to e mas

ported by the evidence. Therefore the district a

found. and the United States Court of Appeals for on

Third Circuit approved (Goode v. Ruzzo, 506 F.2d :

(1974) ) a court-imposed plan to “improve the compe ot

ciplinary system. The plan called for revision 0 $ e

departmental procedures, including . yore pond

limits for completing investigations adjudication y “"

partial bodies and requiring the use of certain methods

of proceeding. /bid. at 545.

It appears that the instant claim and —, =

modeled after that in Goode v. Rizzo. The respon on

here made allegations of numerous instances of po -

misconduct in violation of citizens’ rights, just as t -

Rizzo plaintiffs had claimed “a pattern of Wee ny be

the legal and constituticnal rights of citizens. - ;

at 544. Furthermore, the injunction sought by the ~

sent respondents is the same as that in Rizzo, revision :

the internal operating procedures of the police depart-

eoiiien

ment system of discipline so as to conform to the

respondents’ conception of an effective system. See

prayer for relief set out at pps. 5-6 of this petition. The

present respondents sought that relief for the same

reasons as did the Rizzo plaintiffs: “The existing police

procedures for processing and adjudicating citizens com-

plaints and for enforcing police discipline . .

. were

totally inadequate. . . .” Jbid. at 545.

Moreover in both Rizzo and the instant case the com-

plaints sought continuing court supervision and periodic

reports to the courts to insure that effectiveness is

achieved.

Accordingly, certiorari should be granted because of

the identity of the present issue with that of Rizzo v.

Goode.

Il.

A SPLIT IN THE CIRCUITS EXISTS CONCERNING

WHETHER COURTS OF EQUITY MAY REQUIRE

COURT-IMPOSED INTERNAL OPERATING

PROCEDURES TO REMEDY POLICE CIVIL RIGHTS

VIOLATIONS.

There is a split among several courts of appeals on the

question directly at issue in this cause. These courts

have taken directly irreconcilable points of view. Two

circuits of the United States Court of Appeals have held

that not only is the traditional § 1983 damage remedy

available in cases of police violation of civil rights, but if

complaints can show a pattern of unconstitutional police

behavior, complainants are entitled to seek, and the

court is entitled to order, that the police department

alter its internal disciplinary system to the Satisfaction

of the complainants. In both the decision below of the

Seventh Circuit, and in the Third Circuit’s opinion in

Goode v. Rizzo, 506 F.2d 542 (1974), the courts held that

complaints seeking such extraordinary remedies stated

causes of action.

-_—s

However, the Sixth Circuit is not in accord. In Peek v.

Mitchell, 419 F.2d 575 (1970), the court held that a com-

plaint failed to state a cause of action which sought to

have the district court establish fitness test to screen

applicants to the Detroit Police Department and to in-

itiate a program of human relations training to incum-

bent members of the police force. As in the instant case

and Goode. the Peek complaint alleged a “systematic

pattern’ of unconstitutional police behavior.

Nevertheless the Sixth Circuit stated that whatever

other relief might be available, the doctrine of separa-

tion of powers and justiciability prohibited the court

from meddling in internal police affairs:

“The Mayor and Commissioner of Police of

Detroit contend that the federal courts should not

supervise or review their exercise of discretion in

the area of police recruitment, screening of

applicants, training and discipline as well as the

method of police investigations, since this would be

a patent violation of the historic doctrine of separa-

tion of powers. The District Court denied the relief

requested against these defendants on the basis of

separation of powers since the granting of such

relief would cause the federal district courts to

become an ‘administrative arm of local govern-

ment.’

“We agree with the District Court's conclus.on

that the federal courts should not supervise the

maintenance and operation of the Detroit Police

Department. On this basis, that part of the plain-

tiffs’ complaint fails to state a cause of action.” 419

F.2d at 579.

Accordingly, the opposing views taken by the Seventh

«nd Third. and Sixth Circuits makes it important that

the question of whether the equitable relief sought by

the respondents is available in federal courts be settled

in a consistent manner. For this reason certiorari should

be granted.

ES

III.

THE DECISION BELOW IS IN CON

DANGEROUS PRECEDENT IN CONFLICT WITH THE

TRADITIONAL RULE OF EQUITY BY PERMITTING

JUDICIAL ENCROACHMENT UPON OTHER

BRANCHES OF GOVERNMENT.

In its decision, the Seventh Circuit held that the dis-

trict court might grant an injunction requiring the

petitioners to change internal workings of the Chicago

Police Department to conform to standards proposed by

the respondents and approved by the court. The

respondents’ complaint alleged that a pattern of police

misconduct existed; police discipline was not effective in

stopping it; and that the court should require the adop-

tion of five specific changes proposed by the respondents

which would cure the deficiency and presumably stop

misconduct.

The petitioners do not maintain that an injunction

may not be entered if violations of civil rights are found

to have occurred. But such injunctions may only be aim-

ed at prohibiting illegal conduct. Allee v. Medrano, 414

U.S. 1020 (1974); Lankford v. Gelston, 364 F.2d 197 (4th

Cir. 1966). In these two cases, the courts ordered police

to halt specific acts of conduct found to be violative of

civil rights. In contrast, equitable power is not available

to dictate to another branch of government detailed

plans of internal administrative operating procedure

which a party or the court, in its own independent judg-

ment, believes is appropriate to alleviate the problem.

This judicial policy has been expressed through the

use of such various terms as “a political question,” “non-

justiciability,” or the traditional restraints of a court of

equity. Whatever its appellation, the prayer for relief

“presents an ‘[inappropriate] ... subject matter for

enti

judicial consideration,’ for [plaintiffs] are asking the dis-

trict court, in fashioning that prospective relief, ‘to enter

upon policy determinations for which judicially

manageable standards are lacking.’ Baker v. Carr, 369

U.S. 186, 198, 226 (1962).” Gilligan v. Morgan, 413 U.S.

1, 14 (1974) (concurring opinion of Mr. Justice

Blackmun).

The Gilligan case is dispositive of the question; the

Seventh Circuit was in error in not following it. The

Gilligan plaintiffs asked that the court grant almost the

same relief as the present respondents pray. They

sought to have the court enter orders which would re-

quire the Governor of Ohio and its National Guard to

promulgate administrative rules governing the training

of the Guard. As do the present respondents, the

Gilligan plaintiffs also sought to have the district court

(1) evaluate the appropriateness of the training,

weaponry and orders of the Ohio National Guard; (2)

have the district court establish standards for training

and orders: and (3) have the court assume continuing

judicial surveillance over the National Guard to assure

compliance with the injunction. Gilligan, 413 U.S. at 6-

-

This Court stated expressly that such an order, in-

terfering with the procedures of another branch of

government, was an inappropriate one for the court:

“It would be difficult to think of a clearer exam-

ple of the type of governmental action that was in-

tended by the Constitution to be left to the political

branches, directly responsible—as the Judicial

Branch is not—to the elective process. Moreover, it

is difficult to conceive of an area of governmental

activity in which the courts have less competence.

The complex, subtle, and professional decisions as

to the composition, training, equipping, and con-

trol of a military force are essentially professional

—13—

military judgments, subject always to civilian con-

trol of the Legislative and Executive Branches. The

ultimate responsibility for these decisions is ap-

propriately vested in branches of the government

which are periodically subject to electoral accoun-

tability. It is this power of oversight and control of

military force by elected representatives and of-

ficials which underlies our entire constitutional

system.” 413 U.S. at 10.

In addition to the commitment of such policy decisions

to another branch of government, there is a further

reason why such a remedy is inappropriate, that of the

competence of a court to fashion such a remedy. The

Court stated: “Trained professionals, subject to the day-

to-day control of the responsible civilian authority,

necessarily must make comparative judgments on the

merits as to evolving methods of training, equipping and

controlling military forces with respect to their duties

under the Constitution. It would be inappropriate for a

district judge to undertake this responsibility in the un-

likely event that he possessed requisite technical com-

petence to do so.” 413 U.S. at 8.

The standards a court should consider in determining

whether a question is justiciable or not are described in

Baker v. Carr, 369 U.S. 186 (1962) as any of the follow-

ing:

a)

. . a textually demonstrable constitutional com-

mitment of the issue to a coordinate political

department; or a lack of judicially discoverable and

manageable standards for resolving it; or the im-

possibility of deciding without an initial policy

determination of a kind clearly for non-judicial dis-

cretion; or the impossibility of a court’s undertaking

independent resolution without expressing lack of

the respect due coordinate branches of government:

or an unusual need for unquestioning adherence to

a political decision already made; or the potentiality

an Sitiets

tifarious

of embarrassment. from mul

pronouncements by various departments on one

question.” 369 U.S. 169, 217.

In the present case internal police operating

procedures are demonstrably commited to the executive

branch of government and are truly inappropriate for

and unmanageable by a court. There is no doubt that a

court might properly find, upon convincing evidence,

that a pattern of police misconduct exists. But finding

the appropriate sociological and political solution is not

the role of a court. The respondents, for example, believe

that a more effective disciplinary system will halt police

misconduct. Effective discipline . is a method of

respondents’ choosing, but surely it is not the only possi-

ble solution to the alleged problem. Several other alter-

natives might be equally effective to prevent alleged

misconduct: aa

‘isory police personnel might be sen

wn ae “Field. to avec anedl officers’ closer

adherence to the law.

Police salaries might be increased to attract

better educated or better motivated persons.

More intensive recruit training in civil rights

might be instituted.

Psychological screening to remove potential

behavior problems might be instituted in recruiting

or throughout the incumbent force.

In-service training might be given to patrol of-

ficers in the field.

The extent to whether any of the above reforms might

stop the problem, and whether local governments have

the resources to put the solutions into effect, is se

that is properly one for local governmental officials. It

—15—

cannot seriously be proposed that a district court can

call together experts in municipal finance, police ad-

ministration, criminal justice, sociology and _ political

science and fashion a decree adopting one or more of the

possible remedies and then require local government to

finance it. What the court would be doing, in effect, is

holding a one-man legislative hearing.

These are questions of social policies, and whether

given the name “political questions” or “non-justiciable”

issues, they are not appropriate for a federal district

court. As this Court noted, policy questions such as these

are not ones for the courts: “. . . the 14th Amendment

gives the federal court no power to impose upon states

their views of what consiitutes wise economic or social

policies... . The constitution does not empower this

court to second guess state officials charged with the

responsibility for allocating limited public welfare

funds. .. .” Dandridge v. Williams, 397 US. 471, 486,

487, (1970).

Petitioners do not maintain that unconstitutional

behavior should go unpunished. Of course. a pattern of

conduct may be enjoined, such as the warrantless house-

by-house search conducted in Lankford v. Gelston. supra,

the pattern of police acts interfering with union orga-

nizing activities in Allee v. Medrano, supra. And, cer-

tainly Congress has created what it deems to be an ap-

propriate remedy by requiring miscreant officials

violating constitutional rights under color of state law to

pay damages. 42 U.S.C. § 1983.

Not only is the substance of the decree sought by the

respondents inappropriate for a federal court. the

manner of that decree’s enforcement is just as inap-

alii:

propriate. The respondents wished to establish a three-

year supervisory period with quarterly reporting inter-

vals. The Seventh Circuit, in its opinion below,

suggested restraint in court supervision, but did not in-

dicate that court supervision of internal administration

is improper. But this Court has held such supervision

improper. In a similar situation in which federal court

oversight of the state judiciary was sought, O'Shea v.

Littleton, 414 U.S. 488 (1973), this court, on equitable

grounds, refused to permit the district court to sit as the

supervisor of state criminal proceedings. To do so

“would require for its enforcement the continuous

supervision by the federal court over the conduct of

the petitioners in the course of future criminal trial

proceedings involving any of the members of the

respondents’ broadly defined class. The Court of

Appeals disclaimed any intention of requiring the

District Court to sit in constant day-to-day supervi-

sion of these judicial officers, but the ‘periodic

reporting’ system it thought might be warranted

would constitute a form of monitoring of the opera-

tion of state court functions that is antipathetic to

established principles of comity.” 414 U.S. at 501.

If federal courts may issue injunctions reaching inter-

nal police administrations in order to solve the alleged

problem of police misbehavior, the precedent will be far-

reaching and dangerous. Many persons may believe that

not only in police disciplinary systems but also perhaps

other internal workings of state government may be in-

effective. Will plaintiffs now be able to flood the federal

courts seeking implementation of their suggestions for

changing local administrative practices to cure such

problems as ineffective garbage pick-up, inadequate fire

code inspection, overcrowded classrooms or any of the

problems of local government any person might believe

denies constitutional rights and cculd be improved by

2s

changing administrative methods of operation? The deci-

sion of the Seventh Circuit opens the doors of federal

courts to suits seeking such remedies. The decision

should be reversed.

IV.

THE COMPLAINT WAS INSUFFICIENT TO ES-

TABLISH FEDERAL QUESTION JURISDICTION OF

THE CLAIM AGAINST THE CITY OF CHICAGO.

Following the decision of City of Kenosha v. Bruno,

412 U.S. 514 (1973) in which it was held that injunctions

against municipalities are impermissible under 42

U.S.C. § 1983, the respondents amended the instant

claim in an attempt to retain jurisdiction of the City of

Chicago under the “federal question” statute, 28 U.S.C.

§ 1331. This they did by adding a pro forma allegation,

without further substantiation, that “as to each plaintiff

and in the aggregate, the amount in controversy exceeds

the sum of $10,000.” The remainder of the complaint,

however, was unchanged. No facts are contained in the

complaint which support the claim or show how it was

determined.

The naked allegation is not sufficient to bring the

complaint within the jurisdictional requirement of

§ 1331. As the court pointed out in Breault v.

Feigenholtz, 380 F.2d 91, 93 (7th Cir. 1967) cert. denied,

389 U.S. 1041, “mere averment of the amount claimed to

be in controversy is not enough to confer jurisdiction.”

See also Goldsmith v. Southerland, 426 F.2d 1395, 1397

(6th Cir. 1970).

The jurisdictional predicate of the organizations is less

clear. They do not seek damages against the City of

Chicago, opinion of the Seventh Circuit, Appendix, p.

lla. The organizations, unlike individuals cannot prove

(nor have they alleged) personal injuries, medical ex-

= =

penses, pain and suffering which might bring into con-

troversy an amount of $10,000. Indeed, what is “in con-

troversy” is injunctive relief, not an amount of damages.

28 U.S.C. § 1331 has no application.

The Seventh Circuit’s decision below upholding

jurisdiction of the City of Chicago under federal ques-

tion jurisdiction should be reversed.

V.

THE ORGANIZATIONS HAVE NO STANDING

BECAUSE NEITHER THEY NOR THEIR MEMBERS

WERE ALLEGED TO HAVE SUFFERED ACTUAL IN-

JURY.

The United States Supreme Court in O'Shea v.

Littleton, supra, in dismissing for lack of standing,

summed up the requirements an organization must

allege in order to have a sufficient interest in the case,

and to have suffered sufficient harm. to have standing:

“The complaint failed to satisfy the threshold re-

quirement imposed by Art. III of the Constitution

that those who seek to invoke the power of federal

courts must allege an actual case or controversy.

Flast v. Cohen, 392 U.S. 83, 94-101 (1968): Jenkins

'. McKeithen, 395 U.S. 411, 421-425 (1969) (opinion

of Marshall, J.). Plaintiffs in the federal courts

must allege some threatened or actual injury

resulting from the putatively illegal action before a

federal court may assume jurisdiction.’ Linda R.S.

'. Richard, 410 U.S. 614, 617 (1973). There must be

a ‘personal stake in the outcome’ such as to ‘assure

that concrete adverseness which sharpens the

presentation of issues upon which the court so

largely depends for illumination of difficult cen-

stitutional questions.’ Baker v. Carr, 369 U.S. 186,

204 (1962)... . Abstract injury is not enough. It

must be alleged that the plaintiff ‘has sustained or

is immediately in danger of sustaining some direct

—19—

injury’ e result of the challenged statute of of-

ficial. p> A Massachusetts v. Mellon, 262 U.S.

447, 488 (1923). The injury or threat or injury must

be both ‘real and immediate,’ not ‘conjectural! 2

‘hypothetical.’ Golden v. Zwickler, 394 US. ong ;

110 (1969); Maryland Casualty Co. v. Pacifie Coa

& Oil Co., 312 U.S. 270, 273 (1941); United Public

Workers v. Mitchell, 330 U.S. 75, 89-91 (1947).

O'Shea v. Littleton, 414 U.S. 488 at 493-4.

Here, the Seventh Circuit held that “by reason of the

injury to the organizations themselves, their clients and

their members,” the organization have standing, Appen-

dix, p. 16a. But injury must be to members, Sierra Club

v. Morton, 405 U.S. 727, or at least to persons the

organizations actually represent, O'Shea v. Littleton, 414

U.S. 488. But only abstract injury to the respondent

organizations, themselves is alleged. The Concerned

Citizens for Police Reform and the Chicago Urban

League are “injured” only in that they have established

machinery to receive citizens’ complaints of police mis-

behavior. The Urban League complaint does not men-

tion its members. The Concerned Citizens For Police

Reform complained that some of its members are also

individual plaintiffs in the present suit. Those plaintiffs

are presently before the Court, on their own behalf. It

would be novel, indeed, to permit an organization stand-

ing for its representation of a person already repre-

sented. Such allegations are insufficient to demonstrate

that these organizations have sufficiently suffered such a

direct injury to present an actual controversy. The opin-

ion below improperly reversed the district court's dis-

missal of these organizations for lack of standing.

CONCLUSION

EEE ee

For these reasons a writ of certiorari to U.S. Court of

Appeals for the Seventh Circuit should be issued, and

the judgment of that court should be reversed.

Respectfully submitted,

WILLIAM R. QUINLAN

Corporation Counsel of the City of Chicago

511 City Hall, Chicago, Illinois 60602

Attorney for Petitioners

DANIEL PASCALE

Ricnarp F. FrRiepMAN

Assistant Corporation Counsel

Of Counsel

October 21, 1975

APPENDIX A

3n the

Gnited States Court of Appeals

For the Seventh Circuit

No. 74-1289

ARDALE CALVIN, et al.,

Plaintiffs-A ppellants,

v.

JAMES B. CONLISK, JR., Ete., et al.,

| Defendants-A ppellees.

Appeal from the United States District Court for the Northern

District of Illinois, Eastern Division — No. 72 C 3230

Joseph Sam Perry, Judge.

HEARD FEBRUARY 21, 1975 — DECIDED JUNE 30, 1975

Before CUMMINGS, PELL and TONE, Circuit Judges.

CUMMINGS, Circuit Judge. This action was brought un-

der the Civil Rights Act, 42 U.S.C. § 1983, to redress

alleged deprivations under color of law of rights,

privileges and immunities secured by the First, Fourth,

Fifth, Sixth and Fourteenth Amendments.' The plain-

tiffs are seven individuals, the Afro-American

Patrolmen’s League, Inc., the Concerned Citizens for

| Jurisdiction was originally predicated upon 28 U.S.C.

§§ 1343(3), 1343(4), 2201 and 2202. By amendment of July 19,

1973, and substituted amendment of July 20, 1973, the plain-

tiffs added 28 U.S.C. § 1331, asserting that the amount in con-

troversy exceeded $10,000 as to each plaintiff and in the

aggregate and that no jurisdictional amount was required as

to all defendants other than the Cit of Chicago “because the

action arises under § 1343.” 367 F.Supp. at 482.

—2a—

Police Reform, and the Chicago Urban League. All of

the organizational plaintiffs are Illinois not-for-profit

corporations. The defendants were twelve named police

officers,? the Chicago Superintendent of Police,* the five

members of the Police Board, and the City of Chicago.

Besides detailing incidents in which the constitutional

rights of the individual plaintiffs were supposedly

violated by the named policemen and unknown John Doe

policemen, the plaintiffs alleged that those incidents of

police misconduct “are representative and exemplary of

many similar occurrences of misconduct by Chicago

policemen against civilians recurring over the course of

many years, each of which involves the common element

of excessive or unwarranted use of physical force.” The

complaint further states that unless defendants are en-

joined, plaintiffs’ and other persons’ rights to be free

from “excessive or unwarranted physical force by

policemen * * *; unlawful arrest without a warrant or

probable cause * * *; illegal search and seizure and

other arbitrary and abusive police practices” will con-

tinue to be violated. Plaintiffs also allege that the

Superintendent of Police, the Police Board members,

and the City of Chicago

“have the duty to prevent such misconduct and to

discipline police officers who engage in it. However,

they have failed to fulfill this duty, and have in-

stead followed a course of conduct that condones,

and in effect encourages such abusive misconduct.

Their course of conduct is manifested particularly

in the operation by these defendants of a police dis-

cipline system that, as a pattern or practice, does

not make thorough investigations of such abusive

misconduct and does not take appropriate dis-

ciplinary action against police officers who engage

in it.”

* The complaint was also brought against 25 John Doe police

officers.

* James B->€ontisk, Jr. was then Superintendent of Police

and therefore named as a defendant. He has been replaced by

James Rochford, who should be substituted below as

Superintendent Conlisk’s successor pursuant to Rule 25(d 1)

of the Federal Rules of Civil Procedure.

oo anew at - Sasemennames

—Ja—

laintiffs further alleged that civil damage suits were

_ peo ther remedy because they lack ny co

effect. The plaintiffs complained that policemen vam

neither the costs of such litigation nor of the —_

damage judgment, if any, and that scones A is-

ciplinary action is not taken by the Department “ ow-

ing a successful civil suit. Plaintiffs therefore — t an

injunction against the City and the official defen pow

ordering them to take all appropriate steps within their

power to prevent police officers from engaging In -

constitutional misconduct and to discipline o_—-* )

engage in such misconduct. In that regard, plaintiffs at-

tacked the adequacy of the present internal ey

machinery and requested that the court order t . in-

stitution of an effective police discipline system I an-

dle complaints of unconstitutional police on -_

Damages were asserted against the defendant po ice of-

ficers for violation of the individual plaintiffs’ —_.

stitutional rights. Counterclaims were filed by ye a

the defendant police officers seeking damages for _ ily

pain and mental anguish caused by the individual plain-

tiffs.

a memorandum opinion® relying primarily upon

Gilligan v. Morgan, 413 U.S. 1, the a —_

granted the motion of the City and the official de a”

dants to dismiss the cause of action against them on t le

ground that the claim for declaratory and eo

relief presented a non-justiciable controversy. 367 F.

Supp. at 479-481, 484.

nowledging the possibility that its justiciability

PR neo 2 might be reversed on appeal, the —

court went on to rule that the complaint failed to ee

jurisdiction upon the court over the City of oe b- J

F.Supp. at 482-484. In rejecting allegations 0 _ -

tion under 28 U.S.C. § 1343. the court relied on City ©,

“offici 3” $ defendants

' The term “official defendants” refers to the

within the Department's hierarchy, the Superintendent and

Police Board members, rather than the individual policeman

defendants. =

Calvin v. Conlisk, 367 F.Supp. 476 (N.D. Ill. 1973).

—4a—

Kenosha +. Bruno, 412 U.S. 507. The district judge also

ruled that there was no federal question jurisdiction

over the City under 28 U.S.C. § 1331 because

“[t]his court cannot see that the equitable claim

here against the City is so capable of evaluation in

monetary terms as to satisfy the jurisdictional

amount requirement * * *. It does not see that

plaintiffs have a proper basis on which to allege an

amount in controversy as to the City exceeding the

$10,000 jurisdictional minimum. individually, or in

the aggregate, either ad damnum. or by way of in-

junctive relief.” 367 F.Supp at 484.

Finally, the court refused-to exercise pendent jurisdic-

tion. 367 F.Supp. at 483.

At defendants’ request, the district court dismissed

the three plaintiff organizations as parties.*° The court

also dismissed the 25 John Doe defendants for lack of

jurisdiction because they had not been served and no

It is not clear upon what the district court relied in dis-

missing the organizational plaintiffs. The district court stated:

“Defendants in their motions to dismiss have asked the

courts to dismiss plaintiffs Afro-American Patrolmen’s

League, Concerned Citizens for Police Reform and

Chicago Urban League as parties plaintiff upon the

ground that they lack standing to join in this suit. The

court in its reconsideration is of the opinion that they

should be dismissed. They do not plead specific injury

from alleged acts of misconduct as do the individual plain-

tiffs. They allege a common concern for an improved dis-

ciplinary system within the Chicago Police Department

and state they have received hundreds of complaints of

police misconduct. They claim they have a sufficient stake

in the controversy to obtain judicial resolution of it. But

the Judicial resolution they seek is through this court's in-

tervention to review and continue judicial surveillance and

that is not a justiciable controversy. The organization

plaintiffs are not necessary parties here to protect the

rights of the individual plaintiffs in their suits for

amages against the individual policemen. The individual

plaintiffs are legally competent and are represented by

well-qualified and competent counsel.” (Emphasis added.

367 F.Supp. at 485.)

(Footnote continued on following page)

ta

ee ee

we a hn ee EN ot Na a eee

iat ails sabe aires

eee eee

—)5a—

tered for them.’ 367 F.Supp. at 486.

i oon cael © grant plaintiffs’ motion to ves yn

the nine counterclaims of defendant a -

tified this interlocutory appeal pursuant to the se

§ 1292(b). 367 F.Supp. at 486. Only the coun on

and the seven individual damage actions gy es

the case after the district court’s November 8,

decision.

Justiciability of Police Discipline Issues

igi istri ied defendants’ motion

Originally the district court denied

to janie the complaint * vy 4 as.

ht from the City. However, on Jul ’ , th

iientente requested the court to ener cry oe hag —

that the complaint — to ng age ® eg . ee

just released decision in Gilly ns,

rye " As seen, the district court accepted ba

argument. We do not deem Gilligan to be controlling

and therefore reverse.

li inti Kent State

Gilligan, plaintiffs were students at

vanaaie Ohio. There the court of -——_ a

equitable relief would be a 4. Pn Be

a :

pattern of training in weaponry poe Relig pen

National Guard favoring the use 0 Me - on.

ivilian disorders where nonlethal force

fice. Morgan r. Rhodes, 456 F.2d 608 (6th Cir. 1972). In

6 Continued , wey ae li

ppieaek ane of the quuty Giecussien is in wee Sa

° : sis, its decision

to conventional standing analysis, Iti ‘ e been bas-

eames eT yD timately to have been

organizational plaintiffs appears v Band hich was

. ty determination, w \

ed upon its earlier non Justicia l . q has no direct bearing

made in light of the remedy sought an | plaintiffs. However,

on the standing of the organizationa di uestion both in

in ndants properly raised the standing q Bing ons eg

ae ond on appeal and since both sides a ——

ed the issue in this Court, we discuss it infra, — nied

certainty of the basis for the district courts ruling.

S : hat portion

Si llants do not ask for the reversal of t

of rome Foe a ns ryote Paty d emis Pe Sn tine ten one

; we do not consider the propriety ,

ni ( “ity of Chicago, 407 F.2d 1084, 1086 (7th Cir. 1969).

—6§a—

a five-to-four opinion,” the Supreme Court held that no

justiciable controversy was presented where the plain-

tiffs were calling on judicial power to assume continuing

regulatory jurisdiction over the activities of the Ohio

National Guard. In conflict with Article I, Section 8.

Clause 16 of the Constitution with respect to the militia,

such injunctive relief would embrace “critical areas of

responsibility vested by the Constitution in the

Legislative and Executive Branches of the Government.”

413 U.S. at 7. The Chief Justice’s opinion for the Court

observed that this type of governmental action was in-

tended to be left to the political branches, directly

responsible to the elective process. However, the Court

concluded that its opinion should not be read to “hold or

imply that the conduct of the National Guard is always

beyond judicial review or that there may not be ac-

countability in a judicial forum for violations of law or

for specific unlawful conduct by military personnel,

whether by way of damages or injunctive relief.” 413

U.S. at 11-12.

In Gilligan, the Court appeared to rely principally on

the political question doctrine advanced by Judge

Celebrezze in his dissent to the opinion of the Sixth Cir-

cuit. 413 U.S. at 7-12. Traditionally, this doctrine has

been invoked to restrain the entrance by the federal

courts into areas which are assigned by the Constitution

to the control of the Legislative and Executive Branches

of the federal Government. See Flust +. Cohen, 392 U.S.

83. There is no provision of the Constitution analogous to

Article I, Section 8, Clause 16 (relied upon in Gilligan),

that would be applicable to this case, which involves an

area within the control of a municipal agency, rather

than a co-equal branch of the federal Government.

Furthermore, the cases have noted a strong reluctance

of federal courts to issue injunctions of the type sought

Four of the members of the Court dissented on the grounds

that new “use of force” rules adopted by the Ohio National

Guard and other changes in circumstances had rendered the

case moot. 413 U.S. at 12. Consequently, we do not have the

views of the dissenters on the justiciability question.

—-7a—

here, unless based upon a continuing course of conduct,

rather than a single incident or isolated series of in-

cidents. See Allee v. Medrano, 416 U.S. 302, 815-816,

and cases cited therein, especially note 9. Gilligan

stemmed from a single incident of the Ohio National

Guard’s use of force, while plaintiffs here allege a per-

sistent course of unconstitutional police conduct ap-

parently extending over a period of years.

Less than a year after Gilligan was decided and some

six months after the district court rendered its

memorandum opinion in this case, the Supreme Court

decided Allee +. Medrano, supra. Like the instant case,

plaintiffs there sought injunctive relief against the

police under the Civil Rights Act. The Court held the

district court’s injunction against intimidation of the

plaintiffs to be appropriate, stating that where “there is

a persistent pattern of police misconduct, injunctive

relief is appropriate.” 416 U.S. at 815, citing Hague R

Committee for Industrial Organization, 307 U.S. 496.

Chief Justice Berger, the author of Gilligan, dissented in

Allee and, while not actually reaching the merits of the

injunction issue, indicated that he would have reversed

if the merits were properly before the Court. 416 U.S. at

848. However, the Chief Justice’s dissent makes it clear

that in his opinion injunctions may be addressed to the

police in serious cases, provided the utmost care is taken

to avoid unnecessary intrusions into police affairs. 416

U.S. at 838, 859-860. Furthermore, even the dissent fails

to cite Gilligan, so that the entire Court obviously con-

sidered that National Guard case not to be controlling in

a police misconduct situation. In accord with the Allee

rule, various courts of appeals have approved injunctive

relief where warranted by a pattern of police miscon-

duct. Guode v. Rizzo, 506 F.2d 542 (3d_ Cir. 1974), cer-

tiorari granted, 43 LW 3527:° Build of Buffalo, Inc. v.

* For a similar Third Circuit decision, see Lewis v. Kugler,

446 F.2d 1343, 1350-1352 (3d Cir. 1971); see also cases cited in

Comment, The Federal Injunction as a Remedy for Un-

constitutional Police Conduct, 78 Yale L.J. 143, 146, n. 17

(1968).

—8a—

Sedita, 441 F.2d 284 (2d Cir. 1971); Schnell v. City of

Chicago, 407 F.2d 1084 (7th Cir. 1969); Lankford ¢

Gelston, 364 F.2d 197 (4th Cir. 1966) (en bane). .

To hold that suits seeking injunctions against police

are non-justiciable would erect a permanent bar to

relief, no matter how egregious and persistent the

violations of the constitutional rights of citizens.'? Such a

bar would not be wise public policy, especially where

less absolute restrictions will serve to protect the police

from undue court interference. Unnecessary _ in-

terference with the daily operations of the police can be

avoided by the refusal of federal courts to issue injunc-

tions except where clearly necessary to prevent persis-

tent and serious violations of constitutional rights and by

drawing as narrowly as possible those injunctions which

are required. As the preceding discussion indicates, both

the case law and public policy call for a reversal of the

district court's non-justiciability ruling in this case.

_ While holding that plaintiffs’ claim for equitable relief

is justiciable, we cannot intelligently pass on the type of

decree that should be entered in the absence of a trial.

In this case the Second Circuit s

wail af mere: . « ircuit stated the follow ‘

suit very much like the instant one: me chow 2

“The question of the propriety of remedies p r

plaintiffs, however, is not the issue on thie ctpeal The

question here is whether plaintiffs might conceivably have

some remedy, whether or not suggested by them, and on

the face of this complaint we cannot say ‘to a certainty’

that they will not be able to make out a case against [the

uffalo mayor and police chief] calling for at least part of

the equitable relief they request. or some other ap-

propriate relief.” 441 F.2d at 288. 4

Lankford was cited with ah 3 _

supra at 816. n. 9. approval in Allee +. Medrano,

‘ The facts leading to the injunction in Lankford. whi

were sufficient to persuade even the Allee — ‘aon

injunction was proper in that case (416 U.S. at 859), provide

reason to prevent the imposition of an absolute bar to injunce-

tions against police. In Lankford, 300 ghetto houses were

searched in a 20-day period almost exclusively on the basis of

anonymous tips and, therefore, without probable cause pur-

Suant to police procedures approved by high police officials.

1]

odin

Assuming that plaintiffs can prove their allegations,

they will be entitled to appropriate relief.'* We are con-

fident that the district court will not interfere un-

necessarily with the running of the Police Department

but will, if required by the proof at trial, enter as

narrow a decree as possible to prevent violation of con-

stitutional rights. In this respect,

“The court ought to avoid unnecessarily dampening

the vigor of a police department by becoming too

deeply involved in the department's daily

operations. At the same time, the court should not

shrink from making constitutional guarantees effec-

tive. * * * The court might also require specific

changes in the departmental disciplinary ma-

chinery to make punishment a more concrete threat

to erring policemen.” Comment, The Federal In-

junction as a Remedy for Unconstitutional Police

Conduct, supra, at 149,150.

Assuming that plaintiffs can prove the bulk of their

allegations and thereby become entitled to appropriate

relief. this relief need not necessarily be an injunction

against the police. Mandatory affirmative injunctions

are extraordinary remedies and the plaintiffs must

demonstrate that they are entitled to such a remedy by

satisfying the traditional criteria for the issuance of

mandatory relief. For example, plaintiffs must show the

inadequacy of the various actions at law that are

available to protect constitutional rights and they must

show the irreparable harm that will occur if the injunc-

tion is not issued. These hurdles, in addition to those

already discussed, serve to safeguard the police from un-

necessary federal court interference.

‘S In Peek v. Mitchell, 419 F.2d 575, 579 (6th Cir. 1970), on

which defendants rely, the Sixth Circuit based its affirmance

of the district court’s dismissal on plaintiffs’ failure to make

more than conclusory allegations in their complaint. The court

did acknowledge that equitable relief would be appropriate

where government officials “have notice of the uncon-

stitutional conduct of their subordinates and fail to prevent a

recurrence of such misconduct,” quoting approvingly from

Schnell v. City of Chicago, supra.

—10a—

Doubtless, any decree that might be entered will take

into account any changes in the lice disciplinary

system inaugurated since the filing of this lawsuit. Thus

at the oral argument, we were advised that independent

civilians now look into complaints of police misconduct.

Instead of requiring defendants to report ameliorative

steps at 3-month intervals for three years, as prayed by

plaintiffs, the district court might well find it necessary

only to retain jurisdiction to assure compliance with its

orders. Without interfering with police discretion in

their normal routines, the district court could, if ap-

propriate, formulate relief that would establish

procedures to assure proper processing of citizen com-

plaints concerning police misconduct. Thus such a

decree should be designed to stop deprivations of con-

stitutional rights without unnecessary encroachment

upon local government functions. In sum, if liability is

established at trial, the framing of equitable relief will

be a delicate and difficult process, doubtless differing

from the provisions requested by plaintiffs. See Com-

ment, The Federal Injunction as a Remedy for Un-

constitutional Police Conduct, supra. Plaintiffs would be

well advised to be conservative in any decretal

proposals.

Jurisdiction Over the City of Chicago

The district judge foresaw the possibility that this

Court would reverse his non-justiciability determination

and therefore decided the City of Chicago's (“City”) mo-

tion to dismiss it as a party defendant for lack of

jurisdiction. Plaintiffs contended below, as they do on

appeal, that jurisdiction over the City is supportable un-

der 28 U.S.C. § 1331, 28 U.S.C. § 1343(3), or through

pendent jurisdiction.'' The district court ruled that

‘ Plaintiffs originally sought to secure jurisdiction over the

City under 42 U.S.C. § 1983 in conjunction with 28 U.S.C.

1343. After the decision in City of Kenosha v. Bruno, 412

1S. 507, it was clear that jurisdiction under Section 1983

would not lie. Plaintiffs therefore twice amended their com-

plaint to add Section 1331 and an allegation of the jurisdic-

tional amount as to each plaintiff. See 367 F.Supp. at 482.

—lla—

plaintiffs had not established jurisdiction over the City

and also refused to exercise pendent jurisdiction.'> 337

F.Supp. at 482-484.

In City of Kenosha v. Bruno, 412 U.S. 507,

municipalities were held to be beyond the scope of 42

U.S.C. § 1983 for purposes of equitable as well as

monetary relief. See Monroe v. Pape, 365 U.S. 167.

However, the Bruno case was remanded to determine

whether the jurisdictional amount under 28 U.S.C.

§ 1331 had been met, thus indicating jurisdiction over a

city could be established under that provision. 412 U.S.

at 514: see also 412 U.S. at 516 (concurring opinion of

Justices Brennan and Marshall).

Since the plaintiffs have not pressed a damage claim

against the City in this Court, their assertion of jurisdic-

tion under Section 1331 must fail unless their injunction

- claim is found to put into controversy an amount greater

than $10,000. See 28 U.S.C. § 1331. The district court,

relying on our decision in Giancana v. Johnson, 335 F.2d

366 (7th Cir. 1964), certiorari denied, 379 U.S. 1001,

held that plaintiffs’ complaint failed to establish that the

amount in controversy exceeded the requisite $10,000.

337 F.Supp. at 482-484.

The question of the monetary worth, for purposes of

establishing the jurisdictional amount under Section

1331, of an action seeking an injunction against alleged-

ly unconstitutional conduct is much discussed in the

cases and among the commentators.'' This Circuit, in

the Giancana case, was among the first to announce a

position. The Court there stated:

'* An earlier ruling by the trial court which struck from the

complaint plaintiffs’ request for damages from the City has

not n appealed.

See also Gautreaur vr. Romney, 448 F.2d 731, 734 (7th Cir.

1971).

' For a thorough review of the cases and commentary on

this issue, see Gomez rv. Wilson, 477 F.2d 411, 419-421 (D.C.

Cir. 1973), especially n. 56. Two cases not discussed in Gomez

are McGaw rv. Farrow, 472 F.2d 952 (4th Cir. 1973), and

Burnett v. Tolson, 474 F.2d 877 (4th Cir. 1973).

—12a—

“Courts may not treat as a mere technicality the

jurisdictional amount essential to the ‘federal ques-

tion’ jurisdiction, even in this case where there is an

allegedly unwarranted invasion of plaintiff's

privacy. The showing of that essential is not a mere

matter of form, but is a necessary element.

x* * * * *

Here the complaint makes no express allegation of

the essential jurisdictional sum or value. Plaintiff

argues, however, that the jurisdictional sum or

value should be inferred from the allega ons, sup-

ported by unimpeached affidavits. But there are no

facts from which that necessary element can be in-

ferred. If, as plaintiff contends, the sum or value

cannot be alleged because of the priceless rights in-

volved, how can this court infer that essential

element? And there is no finding of the essential

sum or value and no evidence on which to base a

finding.

* * * * *

{I]t is no answer to failure to bring his claim within

the jurisdictional prerequisite that the value is in-

estimable.

St ££ ek S .

|Pjlaintiff failed to allege, or otherwise show, his

damage accordingly. or to allege, or otherwise show

facts from which that essential jurisdictional ele-

ment may be inferred.” 355 F.2d at 368-369.

The vitality of Giancana in this Circuit is called into

question by the decision in Gautreaur vr. Romney, supra.

There we indicated our agreement with the district

court's determination (No. 66 C 1460, 9/1/70, N.D. IIL.)

that Count I of the complaint sufficiently alleged the

jurisdictional amount. 448 F.2d at 735, n. 6. The com-

plaint in Gautreaus sought declaratory and injunctive

relief against the Secretary of Health, Education and

Welfare to prevent federal aid to the Chicago Housing

Authority because of the Authority’s alleged racially dis-

criminatory application of the funds. The constitutional

right sought to be protected there was, as here, difficult

to price for jurisdictional purposes. In finding the plain-

tiffs’ allegation sufficient, the district court had stated:

“The rule governing dismissal for want of jurisdic-

tional amount is that, unless the law gives a

different rule, the sum claimed by the plaintiff in

good faith at the time of filing controls. 1 Moore's

Fed. Prac. § 0.91, pp. 825-828. Cf. Giancana +.

Johnson, 335 F.2d 366 (7th Cir. 1964) cert. den. 379

U.S. 1001. A monetary value is difficult to assess in

cases where the violation of fundamental con-

stitutional rights is alleged, and it does not appear

that the allegation is not made in good faith.”

The affirmance by this Court can be seen as a departure

from the “tough” approach to the valuation of con-

stitutional rights taken in Giancana. It should also be

noted that the plaintiff in Giancana failed to allege even

generally an amount in controversy, so that the

Gautreaur panel could have viewed Giancana as con-

fined to its facts. As the discussion below indicates, we

need not reconcile the two cases in order to support our

holding that the complaint herein satisfies the jurisdic-

tional amount requirement, thus conferring jurisdiction

over the City upon the district court.

Plaintiffs’ complaint asserts seven instances of police

misconduct of the type that they seek to prevent through

this suit. In each, the plaintiffs assert that the un-

constitutional acts of the police resulted in physical in-

jury requiring medical treatment. While plaintiffs list

the dollar value of some of the elements of damages,

these claims are not exclusive, so that the suits are es-

sentially unliquidated damage claims apparently in-

volving pain and suffering, as well as other intangibles.

Some complain of false imprisonment, Fourth Amend-

ment violations, lost wages or legal fees, incurred as a

result of the misconduct. Given the liberal standards by

which courts judge assertions of the jurisdictional

—l4a—

amount,’* and the assertion in the complaint as to each

plaintiff that in excess of $10,000 is in controversy. the

district court could not have properly ruled these

allegations insufficient as to jurisdictional amount had

the plaintiffs pressed their damage claims against the

City under Section 1331. See n. 15, supra; ef. Bell +.

Hood, 327 U.S. 678, and Bivens +. Six Unknown and

Named Agents, 403 U.S. 388. Since the complaint alleges

that the plight of the seven named plaintiffs is ex-

einplary of the type of invasion of constitutional rights

that the relief sought here seeks to prevent, it follows

that the constitutional rights which the plaintiffs allege

would be protected by the success of this suit have been

satisfactorily shown to be worth $10,000. Thus this case

differs from Giancona where there was neither an

allegation as to the amount in controversy nor

allegations of facts from which the Court could

reasonably infer that the rights which plaintiff sought to

protect were worth more than $10,000. Accordingly, we

reverse the district court on this issue.!”

Dismissal of Plaintiff Organizations

The district court dismissed the three plaintiff

organizations from the suit. apparently on the erroneous

ground that there was not a justiciable controversy.’ On

appeal, defendants urge that the organizations have no

standing, citing O'Shea +. Littleton, 414 U.S. 488. We

first examine the contact with this suit that the

organizational plaintiffs allege in the complaint.

The test is one of “good faith.” See St. Pa, Cur .

de mnity Co. v. Red Cab Co., 303 US. 283. aue-4an yA

Preferred Life Assurance Society, 320 U.S. 238, 243. ,

‘’ Because of our decision that the district court has jurisdic-

tion over the claims against the City under 28 U.S.C. § 1331,

It IS unnecessary to consider plaintiffs’ additional arguments

that there is also jurisdiction over the City under 28 U.S.C

§ 1343(3) and under the doctrine of pendent jurisdiction.

*» See n. 6, supra.

—1l5a—

All three of the organizational plaintiffs operate ser-

vices that receive complaints from persons aggrieved by

police misconduct and seek to obtain redress for these

clients. The three organizations allege that they would

be able to reduce their efforts in processing such com-

plaints if defendants were required to fulfill their con-

stitutional obligations. It is also alleged that, in one form

or another, each of these plaintiffs has as a purpose of

its organization the protection of its members and

clients from unconstitutional police activity. Plaintiffs

Concerned Citizens for Police Reform (“CCPR”) and

Chicago Urban League (“Urban League”) allege that

their members have been subject to the police miscon-

duct that this suit seeks to remedy in the past and con-

tinue to be in danger of such misconduct. Further, some

of the named individual plaintiffs in this suit are alleged

to be members of CCPR.

Standing is a concept with which the courts have long

struggled. Such rules as do exist have been set forth in a

series of Supreme Court opinions.”! The allegations of

CCPR and the Urban League satisfy the “injury in fact”

to the organization or its members that was found ab-

sent in Sierra Club v. Morton, supra. In that ease, the

Court recognized that an organization could assert the

standing of its members, citing NAACP v. Button, 371

U.S. 415.2 This Circuit has recognized that an organiza-

tion is especially well suited to represent its injured

“1 See, vy. Baker v. Carr, 369 U.S. 196, 204; Flast v. Cohen,

393 U.S. 83. 101; Sierra Club v. Morton, 405 U.S. 727; United

States v. SCRAP, 412 U.S. 669.

“2 Relying upon some of these same Supreme Court decisions,

a district court recently held:

“(Bloth organizations are specifically and actively concern-

ed with the location and provision of low income housing

in the County. Among the officers or members or clients

of both organizations are persons who have sought or who

are seeking this housing in the County. The allegations of

the complaint go right to the heart of the work, not mere-

ly the interest, of these organizations and the rights of

persons associated with them. Therefore, they both have

standing to sue.” Planning for People Coalition v. County

of DuPage, (No. 71 © 587, 9/21/72, N.D. IIL).

ha

members when representation of the interests is, as

here, a primary reason of the organization’s existence.

United States +. Board of School Commissioners of In-

dianapolis, 466 F.2d 573, 576-577 (7th Cir. 1972), cer-

tiorari denied, 410 U.S. 909. Thus by reason of the in-

jury to the organizations themselves, their clients and

their members, CCPR and the Urban League have

standing in this case.

The Afro-American Patrolmen’s League (“AAPL”),

however, is in a somewhat different position. While it

has clients whose rights would be protected by a victory

in this suit and one of its stated purposes is alleged to be

“to preserve and protect the rights of residents of

Chicago against abusive and arbitrary police conduct,”

its members are also members of the Chicago Police

Department, the very persons whom this suit seeks to

restrain from certain conduct. Assuming that any

remedy is ever issued as a result of this suit, the

members of the AAPL would likely be directly affected.

The increased vigor in disciplinary proceedings against

police misconduct, which this suit seeks to initiate, could

result in AAPL members who now escape disciplinary

sanctions becoming subject thereto. A clear potential

conflict of interest exists so long as we assume, as we do,

that AAPL members, as well as other policemen could

be adversely affected under a remedy entered at some

future time in this suit. This should not be taken to

mean that this Court has any reason to suspect AAPL

members of unconstitutional conduct; rather our ruling

stems from the fact that the remedy sought in the com-

plaint may directly affect members of the AAPL, thus

creating an apparent conflict of interest. The AAPL was

therefore properly dismissed as a plaintiff.

Dismissal of Counterclaims

As noted in the opinion below, plaintiffs moved to dis-

miss the counterclaims of nine police officers. These

police officers have admitted that they entered into

agreements with the Corporation Counsel of the City of

Chicago providing for the officers to turn over to the

City any monies obtained through judgments on the

—17a—

counterclaims. Apparently they have not assigned their

interests to the City. Therefore, they are still real parties

in interest under Rule 17(a) of the Federal Rules of Civil

Procedure. See 3A Moore’s Federal Practice, § 17.08 at

p. 262: § 17.09[1.-1], § 17.13]1]. The district court cor-

rectly permitted the counterclaimants to proceed.

The order of the district court is affirmed insofar as it

denied the motion to dismiss the counterclaims, insofar

as it dismissed all John Doe defendants, and insofar as it

dismissed the AAPL as a plaintiff. In its other respects

the order is reversed and the cause is remanded for

further proceedings not inconsistent herewith, with costs

to plaintiffs.

APPENDIX 8B

—18a—

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

September 3 19 75

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. WILBUR F. PELL, JR., Circuit Judge

Hon. PHILIP W. TONE, Circuit Judge

ARDALE CALVIN, et al.,

Plaintiffs-Appellants, Appeal from the United

States District Court

No. 74-1289 vB. for the Northern District

of Illinois, Eastern Divsn.

JAMES B. CONLISK, JR., et al.,

Defendants-Appellees. (72 C 3230)

On consideration of the petition for rehearing filed in

the above-entitled cause,

IT IS HEREBY ORDERED that the petition for rehearing in

the above-entitled appeal be, and the same is hereby, DENIED.

rr .or—6.7 73. 208 684