# Petition — Conlisk v. Calvin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1227%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 424 U.S. 902 ## Text . 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1227%3A1. Public record. Not legal advice.