Petition — George W. Lewis v. William F. Hyland

r Supreme Court, U. & Qa

“a BILLED

59 \9TT

In THE

CHAEL RODAK, JR., CLERK

Supreme Court of the United

Ocroser Term, 1977

No. a - 3) 1

>

Grorcze W. Lewis, et al.,

Petitioners,

—vV.—

Wuium F. Hytanp, et al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO |

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

—_ CS dU —

Frank AsKIN

Constitutional Litigation

Clini

Rutgers Law School

180 University Avenue

Newark, New Jersey 07102

Bravos J. Ennis

Jozt M. Gora

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

Attorneys for Petitioners

oe

i

TABLE OF CONTENTS

Page

Table of Authorities .............. ii

Opinions Below no genes elle aga Seren

Jurisdiction ....eereeeeeeeeeeerees

Questions Presented *oeeneeeneeneeeneeeeee

> ww NY N

Statement of the CaSe ...eeeceevecs

Reasons for Granting the Writ ..... 12

1. Certiorari Should be Granted

to Clarify or Reconsider |

Rizzo Vv. in cedes'e 6 é 6 ée¢ 14

A. In the Circumstances of

This Case, Rizzo v. Goode

Does Not Preclude in-

junctive Relief ......... 14

B. If Rizzo Does Preclude

Injunctive Relief In The

Circumstances of This

Case, It is Inconsistent

With The Congressional

Intent in Enacting Section

1983, and Should Be

Reconsidered ....seeeseees 25

II. Certiorari Should Be Granted

to Resolve A Conflict Between

The Third and Second Circuits

Regarding the Award of Damages 28

Conclusion *eeeneeeaeeeneenstenwpensepeenseeneeeeeneee 30

ii

TABLES OF AUTHORITIES

Page

Cases

Allee v. Medrano, 416 U.S. 802

(1974) eeee3#eestc$<*#ee#e#e#see#ee#seene9e*4ne#*ee#e#e#e#e#e 24

Beacon Theatres, Inc. v, Westover, .

359 U.S. 500 (1959) eeeeseeeeeees 28,29

Burton v. Wilmington Parking

Authority, 365 U.S. 715 (1961). 18

Crane Co. v. American Standard,

Inc., 490 F. 2d 332 (1973) .... 14,29

Curtis v. Loether, 415 U.S.

189 (1974) eeeeeeeeneeeeeeeeeeenee 28,29

Dairy Queen v. Wood, 369 U.S.

469 (1962) eeeneeoeeev ea eevee eveeen ee © 28

Estelle v. Gamble U.S. P

50 L. Ed. 24 251 T1976) ....00 21,28

Hills v. Gautreaux, 425 U.S. 284

(1976) eeeeeeeveeeeveeeeeeeneee eee? 18

Louisiana v. United States, 380

U.S. 145 (1965) wcccccccscccvecs 18

Monroe v. Pape, 365 U.S. 167

(1961) eeeeeeeveeeveeeveeeeeeeee ee 25,27

Rizzo v. Goode, 423 U.S. 362

(1976) eeeervr eee eevee eeeaees eee eee ee passim

iii

Page

Shapiro v. Thompson, 394 U.S.

618, 642 (1969) eeeneeeeneeeeeee 24

Swann v. Charlotte-Mecklenburg

Board of Education, 402 U.S.

l, 15-16 (1971) eoeeeeeeeee eee 18

Trainor v. Hernandez, U.S.

, 52 L. Ed. 2d 786, 498

eeeeveeeaeoe een eeeeeeeaeeee ee 25

United States v. Carolene Products,

304 U.S. 144, 152-153 (1938)... 24

United States v. Guest, 383 U.S.

745, 757 (1966) eeeveveeeeee eee 24

Younger v. Harris, 401 U.S. 37,

44 TRO TEs ob ue bodes be bbn'ebe dock 25

Constitutional Provisions

Fourth: Amendment eeeeeeveeeeeeeeee 6,9,20

Fourteenth Amendment eeeeeeeceeee 9

Statutes

28 U.S.C, §§1254 (1) eeeeeeeeeeeee 2

28 U.S..C. §§1331 eeereeeeeeeeeees 5

28 U.S.C. §§1343 e@eeeeereseeeeeeee 5

42 U.S.C. 1983 cocccsccccccccceltOysrgal

iv

Other Authorities

Baker, Russell, New York Times,

September 14, MME GV cbb ede ree

"Developments in the Law: Section

1983 and Federalism,” 90 Harv.

L. Rev. 133 TET eh bo seb ebo oe bb c

"Note," "Rizzo v. Goode: Federal

Remedies for Police Misconduct,"

62 Va. L. Rev., p- 1259 eoeeeeer

"Section 1983 and the New Supreme

Court: Cutting the Civil

Rights Act Down to Size," 15

Duq. L. Rev. 49, ecoccecvcccoce

"The Supreme Court, 1975 Term",

90 Harv. L. Review l, coccce

Page

25,26

12

13

12

IN THE

-

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-

GEORGE W. LEWIS, et al.,

Petitioners,

Vv.

WILLIAM F. HYLAND, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Petitioners pray that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals for

the Third Circuit entered March 25, 1977.

2

OPINIONS BELOW

The opinion of the United States

District Court for the District of New

Jersey is unreported and is set out in a

separately bound appendix submitted here-

with, at pp. 38a-5la. The District

Court's supplemental letter-opinion dated

Dec. 29, 1975, also unreported, is set

out in the appendix at 122a-125a. The

opinion of the United States Court of

Appeals for the Third Circuit is reported

at 554 F. 2d 93 and is set out in the

appendix at pp. la-35a.

An earlier Court of Appeals opinion,

reversing the dismissal of the complaint

and remanding for further proceedings, is

reported at 446 F. 2d 1343, and is set

out in the appendix at 130a-155a. The

original District Court opinion is re-

ported at 324 F. Supp. 1220, and is set

out in the appendix at 159-168a.

JURISDICTION

The judgment of the Court of Appeals

was entered on March 25, 1977. (App. at

p. 36a.) A timely application for an

extension of time in which to file a

petition for a writ of certiorari was

granted by Mr. Justice Brennan on May

31, 1977, extending the time for filing

this petition to and including August

22, 1977. The jurisdiction of this

Court rests on 28 U.S.C. §1254 (1).

3

QUESTIONS PRESENTED ‘

1. Whether this Court's decision in

Rizzo-v. Goode, 423 U.S. 362 (1976), pro-

sa eral court from enjoining

state police supervisory officials, even

though the court found:

(a) that the defendant supervisory

officials demonstrated “official

indifference";

‘(b) in the face of “numerous viola-

tions of the constitutional

rights" of a discrete and

readily identifiable class of

long-haired interstate highway

travelers subjected solely

because of their personal

appearance to repeated and un-

constitutional searches;

(c) by their subordinates, defendant

state troopers, who had demon-

strated “callous indifference

for the rights of citizens";

and even though

(ad) the burdened class had no effec-

tive way to protect their con-

stitutional rights other than

to seek judicial relief?

2. Whether the District Court had

discretion to award monetary damages in

lieu of injunctive relief to victims of

flagrantly unconstitutional police

searches where the Complaint, although

not specifically including a prayer for

damages, included a prayer for such

other relief as the Court deemed just and

proper, and the court concluded after

final hearing that it could not grant

injunctive relief?

4

STATEMENT OF THE CASE

Almost zeven years ago, the

filed this suit can nba sece ome agmpmmagta

practice of the New Jersey State Police of

systematically stopping and searching

vehicles occupied by “long-haired travelers"

in the hope of finding marijuana or other

illicit drugs.

In December 1970, thirty-seven indi-

vidual plaintiffs filed a complaint in

the United Sates District Court for the

District of New Jersey, alleging in detail

that they and other members of a class of

"long-haired travelers"2 had been sub-

jected to arbitrary stops and unreasonable

searches of their persons and vehicies by

defendant New Jersey State Troopers solely

because of plaintiffs' non-conformist

personal appearance. The complaint further

I Columnist Russell Baker commented in

his New York Times Op-Ed page column of

September 17, 1577, that "{mJiddle class

whites caution their sons against driv-

—_ the New Jersey Turnpike with long

air."

2 The plaintiffs have used the term

"long-haired travelers" as a shorthand

expression for a class of persons con-

sisting of the named plaintiffs and all

other persons %f individualized appearance

who have occasion to use the highways and

toll roads of New Jersey, including

persons with long hair or beards, or

persons who in any other way manifest a

non-conformist appearance. ;

5

charged that these unlawful searches were

so numerous as to constitute a pattern or

practice of conduct by defendant Troopers,

and that this pattern violated plaintiffs'

rights to be free of unreasonable

searches, to due process, to equal pro-

tection of the laws, to freedom of asso-

ciation, to freedom of travel, and to

privacy in matters of personal appearance.

The Cistrict court had jurisdiction under

28 U.S.C. §§ 1331 and 1343.

Plaintiffs' complaint requested the

following relief: 1) a declaratory judg-

ment that defendants’ pattern and practice

of stopping and searching "long-haired

travelers" was unconstitutional; 2) in-

junctive relief against defendants who

engaged in such conduct directing them not

to stop or search persons solely because

of their personal appearance; 3) in-

junctive relief against superviscry per-

sonnel who were aware of such conduct

directing them to order their subordinates

not to stop or search persons solely be-

cause of their persenal appearance; and

4) such other relief as the court deemed

proper.

The District Court dismissed the

complaint (324 F. Supp. 1220; 159a.). The

Third Circuit reversed and remanded

(466 F. 2d 1343; 130a. at 145a.):

If the plaintiffs can establish

that they are subjected to a

deliberate pattern and practice

of constitutional violations by

the New Jersey State Troopers,

we believe that they are entitled

6

to relief, and it can no longer

be seriously contended that an

action for money damages will |

serve adequately to remedy un-

constitutional searches and

seizures,

Following remand, the District Court

resumed an evidentiary hearing that had

been held in connection with an earlier

motion for preliminary injunction. )

Plaintiffs presented 80 witnesses who

testified to 66 separate highway incidents

in which State Troopers stopped vehicles

containing "long-haired travelers” and,

in most instances, searched the occupants

and/or the vehicles.

In addition to evidence of specific

instances of illegal police searches,

plaintiffs offered proof (through wit-

nesses to incidents, expert witnesses and

several members of the state police sub-

poenaed as hostile witnesses) that those

specific incidents were merely examples

of a general pattern and practice of

police activity directed at long-haired

travelers in the hope of finding marijuana

or narcotics, without concern for: the

restricticns of the Fourth Amendment. 3

3 Some troopers boasted about the prac-

tice. E.G., T. 1326-30; T373-7; T. 142

("2. " refers to the transcript of the

hearing). Several plaintiffs were victim-

ized on more than one occasion. See find-

ings as to Greenblatt, 75a, 76a, 77a, and

(FN 3 Continued on Next Page)

7

Plaintiffg produced further evidence that

this general pattern and practice was

known to, condoned, and even encouraged,

by the supervisory officials of the State

Police, including the Attorney General and

the Superintendent of State Police. The

supervisory officials failed and refused

to control the lawless behavior of the

troopers, refused to discipline troopers

whose lawless acts pursuant to this

pattern and practice were specifically

called to their attention, and instead

encouraged such acts by rewarding troopers

whose unconstitutional acts resulted in

discovery of marijuana or narcotics.

There is also evidence in the record

that because of this unconstitutional

pattern and practice, members of the

plaintiff class were compelled to revise

their travel habits, thus interfering

with the fundamental right of interstate

travel.

The case was not finally decided on

(FN 3 Continued)

118a; Hergenhan, 54a, 55a, 83a; Warsager,

60a, 6la; Fogel, 52a, 115a; Lewis, 89a,

115a; and Porter, 82a, 1l6a.

4 TT. 145; T.146-47; T.195; T,206; T.212;

T.270-73; T.366; T.377; T.377-78; T.387;

T.411; 7.473; T.496; 7.524; T.573-79;

T.742; T.773; T.806; T.875; T.890; 7.895.

the merits until November 1975.5 It was

decided by District Judge Meanor, on the

basis of transcripts of the evidence

heard by a different judge three years

earlier, as supplemented by depositions

taken in January 1974.

5 The reason tor the delay is that the

District Judge to whom the case was ini-

tially assigned and who presided at the

trial died before deciding the case, as

did the judge to whom it was thereafter

reassigned. A third judge retired before

entering a decision.

6 Plaintiffs and defendants stipulated

that the court was to decide the case based

on the record already completed. Plaintiffs

were not permitted to update the record.

The court below notedgthat the district

court had found no "substantial threat” of

future violations by state troopers since

"the passage of time, a general acceptance

of diverse life-stypes and appearances and

the threat of litigation were all accorded

a beneficial effect." 9a-l0a, That find-

ing was improper both because of the

stipulations of the parties concerning the

record, and because plaintiffs had made an

offer of proof to the trial court alleg-

ing continuation of the police practice,

and had specifically sought an evidentiary

hearing on that issue in their Motion

for Reconsideration following the issuance

of the trial court's findings. Rather than

permit a hearing as to the continuing nature

of the police patterns or practice, the

(FN 6 Continued on Next Page)

9

Judge Meanor attached to his opinion

an Appendix with specific findings about

the 66 separate highway incidents about

which plaintiffs produced evidence. 52a,

He found that of the 66 incidents, "35

have been found to involve clear viola-

tions of Fourth and Fourteenth Amendment

rights" and turther found "that a rela-

tively small number of those whose rights

were violated were represented before the

court.” 47a. Despite these findings,

Judge Meanor refused to grant plaintiffs

any injunctive relief, either against

individual troopers or against supervisory

personnel. Instead, he ruled that plain-

tiffs whose rights were violated could

apply to the court within 30 days for

hearings to assess money damages “where

legally possible.” S5Sla. Solely because

he denied injunctive relief to the named

plaintiffs, Judge Meanor held that the

TFN 6 Continued)

trial judge abandoned his reliance on the

alleged discontinuance of the practice as

a rationale for denying relief and in the

Order and Final Judgment specifically

stated that "even if such matters [of dis-

continuance of the practice]: were incor-

rectly noticed, it is specifically held

that such error would have no effect upon

the ruling by this Court on plaintiffs'

demand for relief." 126a. If the Court of

Appeals intended, in upholding the trial

court, to place any reliance on the alleged

finding of discontinuance of the practice,

it overlooked the trial court's own dis-

avowal of such reliance,

10 11

and Judgment on March 25, 1977 (Lewis_v.

class action motion was moot.’ Hyland, 554 F. 2d 93; la; 36a), a rming

| the denial of injunctive relief and

The District Court's denial of in- reversing the award of damages.

junctive relief against supervisory defen-

dants was apparently based on the court's

belief that such relief could not be

granted unless the supervisory defendants

"deliberately" and intentionally directed

the unconstitutional acts. 47a.

The Court acknowledged that plaintiffs

had "substantiated (and, indeed, augmented)

their initial allegations." 29a. It held

that "The district court's extensive find-

ings of fact reveal what can only be

described as callous indifference by the

New Jersey State Police for the rights of

citizens using New Jersey roads." 29a,

And the Court observed:

Nine plaintiffs alleged that they

could identify the individual troopers who

violated their constitutional rights, and

requested damages against those defen-

dants.8 By a supplemental letter-opinion Were it not for the Supreme Court's

122a., Judge Meanor awarded damages rang- opinion in Rizzo v. Goode, 423 U.S.

ing from $100 to $250 in favor of four 362, 46 S. Ct. 590, 46 L. Ed. 2d

plaintiffs and against three defendants. | 561 (1976), which was announced

On January 14, 1976, the court entefed an after the district court proceedings

Order and Final Judgment (125a.) had been concluded, our, original

mandate in this case, see 446 F. 2d

The plaintiffs appealed from that at 1350, supra, would have required

portion of the judgment which denied in- | that we reverse the district court's

junctive relief and the defendants cross- denial of injunctive relief in light

appealed from the award of monetary damages. | of plaintiffs' demonstration of

The Court of Appeals issued its decision numerous violations of their consti-

tutional rights. (2a-3a. footnote

deleted).

7 Earlier, the court had indicated that

class action status would otherwise have The court concluded, however, that this

been appropriate. In fact, the court had Court's opinion in Rizzo "has changed

|

stated: "If you win, you have a class." | the operative standards”, 17a, as they had

Transcript, October 29, 1974 hearing, p. 10. | pee fb at the €ime of the Circuit's .

original opini 1971.

8 Many of the plaintiff class could not ginal opinion in

identify the individuals who violated aiid a et ie oa,

their constitutional rights, and for that | award of damages on the sole ground that

reason did not even apply for damages. | the prayer for relief in the original

complaint did not specifically request

12

monetary damages, and that the thrust of

the case was a request for injunctive

relief.

REASONS FOR GRANTING THE WRIT

This case presents an excellent

opportunity, on a well-developed factual

record, to clarify the meaning and scope

of this Court's decision in Rizzo v.

Goode, 423 U.S. 362 (1976). That decision

has puzzled both courts and commentators?

and has caused considerable confusion

5 The farvard Law Review, for example,

noted that it was possible to read the

sweeping language of Rizzo in such a way

that it “would render nugatory the role

of the federal judiciary as a guarantor

of basic federal rights against state

abuse." The Supreme Court, 1975 Term, 90

Harv. L. Rev. 1, 246. That is precisely

how the court below read Rizzo. But the

Harvard commentary went on to observe

that it was quite possible that the sweeping

language "was merely an unfortunate

rhetorical flourish." Ibid.

A note in the Virginia Law Review,

which called the result in Rizzo "sound,"

went on to comment: "What is disturbing

about the case is that, in its haste to

reject the relief granted by the lower

court in kizzo, the Court has erected a

barrier to far less intrusive remedies."

"Note," Rizzo v. Goode: Federal Remedies

for Police Misconduct,” 62 Va. L. Rev.

(FN 9 Continued on Next Page)

13

among federal appellate courts, as the

decision below so clearly indicates.

Thousands of hours of legal and judicial

time have been spent in an effort--to

date futile--to understand and apply the

Rizzo standards in a coherent and con-

Sistent manner. By clarifying Rizzo,

this Court would eliminate the inconsis-

tent standards now applied in different

circuits, and would free badly needed

legal and judicial resources.

TFN 5 Continued)

1259, 1283 (1976):

"The Court spoke of equitable restraint

and federalism in sweeping terms,

leaving to future discussion a deline-

ation of the permissible scope of federal

injunctive relief against state officials.

In the absence of limits rooted in the

language of the decision, lower courts

have been forced to surmise what kinds

of discretionary relief remains for

them to grant."

Simiarly, a comment in the Duquesne Law

Review stated:

"Whether Rizzo is read narrowly or

broadly by the lower courts will

largely determine its impact on future

section 1983 litigation in the federal

courts." "Section 1983 and the New

Supreme Court: Cutting the Civil

Rights Act Down to Size," 15 Duq. L.

Rev. 49, 63.

14

Certiorari should also be granted

because the opinion of the Court of Appeals

is inconsistent with and undermines the

histcric role of the federal courts in pro-

tecting the fundamental rights of discrete

and readiiy identifiable minorities from

abuse by state officers.

Moreover, the Circuit's reversal of

the District Court's grant of monetary |

damages to several of the named plaintiffs

against the State Troopers who violated

their rights is in direct conflict with

the decision of the Second Circuit in

Crane Co. v. American Standard, Inc., 490

: . Tis Court should

resolve that conflict over the power of a

federal equity court to award monetary

damages where it finds injunctive relief

inappropriate or unavilable.

I. CERTIORARI SHOULD BE GRANTED TO

CLARIFY OR RECONSIDER ;

GOODE.

A. In the Circumstances of This Case,

ZZO V. Goode Does Not Preclude

Injunctive Relier.

In its first opinion, the Third

Circuit ruled that "the complaint set

forth facts which, if proved, would justify

a federal equitable remedy" (2a). In its

second opinion, the Third Circuit acknow-

ledged that “Plaintiffs have now sub-

stantiated (and, indeed augmented) their

initial allegations" (2a). Nevertheless,

the court felt compelled to deny relief

15

because of the intervening decision in

Rizzo v. Goode:

Were it not for the Supreme Court's

opinion in Rizzo v. Goode... which

was announced after the district

court proceedings had been concluded,

our original mandate in this case,

see 446 F, 2d at 1350, supra,would

Rave required that we reverse the

district court's denial of injunc-

tive relief in light of plaintiffs’

demonstration of numerous violations

of their constitutional rights.

Because of its view that “the Rizzo

Court has changed the operative standards"

17a, the Circuit's opinion concluded that

"the record of law enforcement abuses as

it appears in this case--dismaying as it

is--will not support federal injunctive

relief." 3a.

The Third Circuit ruled that Rizzo

precludes injunctive relief agains

supervisory officials absent proof of

their “participation...in a planor

scheme to suppress constitutional rights,"

of proof that they “adopted and enforced"

an “unconstitutional policy or plan." 14a.

Under that standard, injunctive relief

would not lie against a supervisory

official who a) had knowledge of specific

and repeated unconstitutional acts by

subordinates, b) had the authority to

control such acts and c) did nothing to

control such acts. In fact, the Third

Circuit believed that Rizzo precluded in-

junctive relief even though the "evidence

16

here demonstrated...insensitivity on the

part of responsible officials toward.

reports of abuses by individual Troopers,"

and even though their "apparent obli-

viousness to citizens' complaints rein-

forces an impression of official indif-

ference." 22a-23a. That is an unneces-

sary and overbroad reading of Rizzo which,

if upheld, would effectively. nullify the

ability of federal equity courts to en-

force the Civil Rights Act, 42 U.S.C.

1983, and to control invasions of consti-

tutional rights by state officials.

As we will document infra, the facts

of this case are substantially different

from the facts in Rizzo in at least five

important respects:

1. In Rizzo, the individuals who

actually committed the unconstitutional

acts were not defendants. Here, the

court found that named defendants committed

unconstitutional acts.

2. In Rizzo, the unconstitutional

acts were random acts of violence, and

were not directed at any identifiable

Class of persons. Here, there was sub-

stantial evidence, including admissions

by individual defendants, that cars were

stopped and searched not at random, but

solely because their occupants were

readily identifiable as “long-haired

travelers."

3. In Rizzo, the possibility of

future harm to the named plaintiffs was

entirely speculative. Here, several

plaintiffs were stopped and searched on

more than one occasion and there was

17

reason to believe, since they continued to

wear long hair and continued to use the

highways, that they might be stopped again.

4. In Rizzo, there was no evidence

that supervisory officials had actual

knowledge of specific unconstitutional

acts by their subordinates; at most, they

were aware of a “statistical pattern” of

abuse. Here, there was substantial evi-

dence that supervisory officials either

had actual knowledge of specific uncon-

stitutional acts, or were "indifferent"

and “oblivous" to such acts, and further

evidence that they condoned or encouraged

such acts by’ commending subordinates who

committed them.

5. In Rizzo, the court had issued a

broad injunction that would have required

the defendants to devise new complaint

procedures and to restructure their

operations. Here, the court could have

issued a narrow injunction simply direct-

ing Troopers not to stop or search cars

solely because of the personal appearance

of their occupants, and directing super-

visory officials to order their subordi-

nates not to stop or search cars solely

because of the personal appearance of

their occupants. That injunction, had it

issued, would not have unduly interfered

with the operation of the State volice

Department.

Given these substantial differences,

the Third Circuit's belief that Rizzo

precluded injunctive relief was unwarranted.

18

1. Unlike Rizzo, in which the police

officials who actually committed unconsti-

tutional acts were not named as defendants,

the unconstitutional acts found in this

case were all committed by state troopers

who were either named as defendants or

identified in the complaint as John Doe's.

In Rizzo, plaintiffs could show no viola-

tions of their constitutional rights by

any party to the proceeding. . But this

case presents a far different question:

the reach of a federal court's equity

power to shape an effective remedy when

specific constitutional violations have

been proven against named defendants. Cf.,

Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, 15-16 oT; and

Hills v. Gautreaux, 425 U.S. 284, (1976).

The decision below is inconsistent with

many historic decisions of this Court

requiring injunctive relief to run against

the only parties capable of providing full

relief in the face of proven constitutional

violations by persons in a subordinate or

agency relationship. See, e.g., Burton v.

Wilmington Parking Authority, 363 U.S. 715

TISél} CE. Lousiana v. Gnites States,

380 U.S, 145 (1565) (affirming injunctive

relief against members of the State Board

of Registration and the Director-Secretary

of the Board of Registration although the

actual violations of rights were caused

by the parish voting registrars). This

Court should clarify whether Rizzo pre-

cludes equitable relief when the consti-

tutional violations proved against named

defendants can only be effectively re-

dressed by fashioning an injunction

against supervisory officials...

2. In Rizzo, the plaintiffs had

19

proved 16 instances of violations of con-

stitutional rights by Philadelphia police

over a period of a year. There was no

particular pattern or character to those

violations. Any citizen could have been

a victim. This record, on the contrary,

shows a very specific pattern of uncon-

stitutional vehicular searches focused

on "discrete classes of travelers" 2a.

Here, the District Court found 35 specific

instances of unconstitutional searches

which fit that pattern, and found further

that “a relatively small number of those

whose rights were violated were repre-

sented before the court" 47a.

Here, individual Troopers admitted

that they single out long-haired travelers

for searches, based apparently upon their

belief that long-haired travelers, as a

class, would be more likely to possess

marijuana or narcotics than would short-

haired travelers. For example, one Trooper

admitted he had stopped a plaintiff "be-

cause he had long hair..." 56a. Another

Trooper justified a search by saying to a

driver, "You know as well as I that a lot

of people who look like you do things

that are wrong” 77a. Another Trooper,

when asked why he had stopped the car,

replied "Well, we do these things, espec-

ially when you have somebody with long

hair sitting in the car." 116a. Another

Trooper not only stopped and searched

travelers because of their personal appear-

ance, but even ordered them "not to come

back here again" because he "didn't like

the way [they] looked” 70a.

Individual Troopers also admitted

that they would search long-haired tra-

velers even if such searches were uncon-

stitutional. One Trooper, for example,

20

said "It is much more important to us

that we stop crime than that we observe

the Fourth Amendment” 52a. Another

Trooper, embarrassed when a law student

questioned the constitutionality of a

search, "mumbled something to the effect

that it was, after all, his job to

harass people” 64a.

3. Unlike the Rizzo plaintiffs, who

could make only attenuated and specula-

tive allegations of threatened future

harm, members of the plaintiff class are

under constant threat of being victimized

again by the defendants' illegal prac-

tices, both because of the widespread

nature of defendants’ activities and

because of the narrowness and readily

identifiable nature of the plaintiff class.

Thus, Ronald Greenblatt, whose unusually

long hair and distinctive beard won him

a role as Jesus Christ in a television

network documentary (T1606), was stopped

by six different Troopers on five dif-

ferent occasions, in little more than a

year. On one day, he was stopped by two

different Troopers. 76a. The trial

judge found that these stops involved

three illegal searches and a fourth

“unconsummated" search. 118a. Plaintiff

Hergenhan was stopped three times (54a,

55a-83a), plaintiff Warsager was stopped

twice (60a, 6la), as was plaintiff Porter

(82a, and 1l6a), plaintiff Fogel (52a.

and 115a), and plaintiff Lewis (89a and

155a). This record indicates that

plaintiffs' concern about future searches

is reasonable, and is not based on mere

speculation. This case thus poses, as

Rizzo did not, the question of federal

21

court power f° enjoin future constitutional

violations.+

' 4. =%In Rizzo, the sole allegation

against the superior officers was their

inaction in the face of a series of random

police assaults on citizens, This case

presents a far different situation. The

record in this case shows a deliberate

pattern of police behavior, pursuant to

official state policy (to curb narcotics

traffic), to focus on a particular group

of readily identifiable highway travelers

in the hope of finding marijuana or

narcotics. Rather than demonstrating

mere inaction by supervisors, this record

contains evidence of supervisory conduct

that can fairly be described as active

encouragement of the troopers’ unconsti-

tutional behavior, or at the least,

"deliberate indifference,’ As the Court

of Appeals acknowledged,

This insensitivity extended in sev-

eral instances to departmental

awards being conferred upon indivi-

dual Troopers, named as defendants

here, for their performance during

the very time in which they insti-

le flagrantly illegal searches.

a.

10 Tt is possible to read Rizzo as based

on the absence of a justiciable case or

controversy. Under that reading, parts

II B and C of the opinion would be dicta,

with no precedential value.

ll See Estelle v. Gamble, U.S. 9

50 L. Ed. 24 251 (1976).

22

For example, the State Police exonerated

defendant Trooper Kowal after investi-

gation of a citizen's complaint about an

illegal search, on the ground that Kowal

had been very successful in uncovering

narcotics in the course of motor vehicle

searches. Ignoring overwhelming evidence

of his illegal behavior (which Judge

Meanor found was unconstitutional, 100a-

102a), the State Police dismissed the

complaint against Kowal because of an

investigator's report that:

Trooper Kowal has been very active in

narcotic violation enforcement...

as a result of vehicle checks...He

apparently does know what to look for,

and further, recognizes same when

_ a “igagees it. (Exhibit P32, p.

, 410.

As the District Court found, "Trooper

Kowal received no reprimand ..Instead, he

received a commendation tor his law

enforcement activity during May and June

1971." 10la. That was the same period

during which Trooper Kowal engaged in at

least two unconstitutional searches. See

100a-102a, and llla-ll2a,.

Immediately after being searched by

a Trooper, one plaintiff described the

incident to a supervisory official,

Colonel Kelly, and asked if it was “policy”

to "systematically stop and search people

with long hair..." 66a. Although denying

such a policy, Col. Kelly indicated he

was aware that Troopers were hostile and

"antagonistic" to "students" and other

23

long-haired travelers, and thought it .

“only natural" for Troopers to search such

people. 66a.

Other specific constitutional viola-

tions were brought to the attention of

supervisory officials (see 70a-7la, and

89a, for example), but those officials did

absolutely nothing to prevent or dis-

courage such violations.

5. Rizzo was based in large part on

the Court’s reluctance to approve broad

interference with police department

operations. An appropriate injunction in

this case, however, would not have re-

quired broad interference with the oper-

ations of the New Jersey State Police. A

simple notification from superiors to

subordinates that they could not consti-

tutionally stop and search vehicles solely

because of the personal appearance of

the occupants would not unduly tie the

hands of the State Police.

Furthermore, insofar as the Court's

reluctance to approve injunctive relief

against police officials was based on more

general notions of federalism and comity,

those notions should carry far less

weight in this case than in Rizzo, because

the acts complained of in this case

directly affect the “fundamental” right of

interstate travel.

Unlike Rizzo, this case involved

citizens who have been deprived not only

of their Due Process right to be free from

illegal searches and seizures, but also

of their fundamental right to travel

24

freely from state to state. United States

v. Guest, 383 U.S. 745, 757 (1966). And

because many travelers are not citizens

of New Jersey, they have no recourse other

than the judicial process. In Rizzo,

the plaintiff class was coextensive with

the electorate of the city of Philadelphia.

Because the electorate has at least theo-

retical control over the activities of

their duly elected officials, deference

by a federal court to the independent

and democratic workings of local electoral

processes may, in some cases, be warranted.

But where the’ federal rights of a dis-

crete and readily identifiable minority

class are transgressed, and where many of

the class are interstate travelers who

cannot participate in the electoral P -

cess in New Jersey, such deference i5

inappropriate. See Allee v. Medrano, 416

U.S. 802 (1974). Cf., United States v.

This case is thus different from

Rizzo because one of the rights being

violated is the right of interstate travel,

a right which it is the special responsi-

bility of the federal courts to protect

since, unlike most rights protected by

the Due Process Clause of the 14th Amend-

ment, its source is in “the nature of the

federal union” itself. Shapiro v.

Thompson, 394 U.S. 618, 642 (1565). Thus,

considerations of comity, which were

central to the Rizzo holding, are far

more attenuated here. Since it is clear

that "both federal and state interests

(must be] taken into account" in the

25

comity calculus, Trainor v. Hernandez,

U.S. , 52 L. Bd. 2d 486, 458

(1977). (Blackmun, J., concurring), and

since the concept requires “sensitivity

to the legitimate interests of both State

and National Governments," Younger v.

Harris, 401 U.S. 37, 44 (1971) this Court

should review the decision of the court

below in order to safequard the legitimate

a@eterests of the federal system.

B, If Rizzo Does Preclude Injunctive

Relief In the Circumstances of This

Case, 1t is Inconsistent With The

Congressional intent in Enacting

Section 1983, And Should Be

Reconsidered.

The legislative history of Section

1983 is described in detail.in "Develop-

ments in the Law: Section 1983 and

Federalism,” 90 Harv. L. Rev. 1333 (1977)

(hereafter "Developments"), particularly

at pp. 1137-1156, and in Monroe v. Pape,

365 U.S. 167 (1961), and will not be

repeated here. It is sufficient for

present purposes to note that the central

purpose of the Civil Rights Act of 1871

was to provide a federal remedy against

state officials because of their "in-

action” or "toleration of private law-

lessness”: ©

"Atrocities committed by the Ku

Klux Klan, however, led Congress in

the Act of 1871 to provide civil

rights protection against official

inaction and the toleration of

private lawlessness." Developments,

supra, at 1153.

26

RRAARARARAAERARAAAEAE

"Moreover, most Congressmen viewed

the situation in the South as exacer-

bated by the inaction of the state

and local governments. A full reading

of the debates compels the conclusion

that the Act was aimed at least as

much at the abdication of law enforce-

ment responsibilities by Southern

officials as it was at the Klan'‘s

outrages. Thus, Representative, later

President, Garfield of Ohio asserted

that the problem in the South was not

unequal laws, ‘but that even where

the laws are just and equal on their

face, yet, by a systematic malad-

ministration of them, or a neglect

or refusal to enforce their provisions,

a portion of the people are denied

equal protection...’ " Developments,

supra, at 1154 [footnote omitted].

If Congress intended to provide a

remedy against state officials who do

nothing to prevent unconstitutional acts

by private persons (the Klan), it must

foltow that Congress intended to provide

a remedy against state officials who do

nothing to prevent unconstitutional acts

by their own subordinates. To the extent

Rizzo would preclude such relief, it is-

inconsistent with Congressional intent,

and should be reconsidered:

"While the issuance of broad

structural relief in 1983 actions

is a relatively modern phenomenon,

the concern for breakdowns in state

governmental systems is one that

27

traces back to the Civil Rights Act .

of 1871. It was not simply affirma-

tive state action in support of the

activity and conduct of the Ku Klux

Klan that motivated the enactment of

section 1983 in its original form but

also the specter of state systems

unwilling or unable to act in the

face of massive violations of consti-

tutional rights. The Court's sugges-

tions in Rizzo v. Goode, that a

finding of Iiability is inappropriate

when supervisory officials do not

affirmatively implement an unconsti-

tutional policy, however, has the

potential to undermine section 1983's

effectiveness as a means of dealing

with systemic breakdowns. Given

the governmental immunity established

by Monroe and City of Kenosha,

system-wide injunctive relief, to be

effective, must generally be

directed at individuals at a high

level of the governmental organi-

zation. A requirement of proof of

deliberate and calculated infringe-

ment on the part of these officials

may well be difficult to meet, but

it is hard to see why this should

matter. In the context of damage:

actions, proof of the individual's

blameworthiness is relevant be-

cause of a concern for the effec-

tiveness and fairness of imposing

on him an obligation to pay damages

to the plaintiff. Where the

remedy sought is injunctive relief

to prevent future deprivations or

to undo the effects of past ones,

however, the individual defendant

28

is essentially a representative of

the system. The real issue in such

cases is the functioning of the

system as a whole, not the actions of

any particular official. Moreover,

if personal fault were considered

determinative, the legislative his-

tory of section 1983 as well as the

‘deliberate indifference’ standard

established in Estelle v. Gamble,

which was decided after Rizzo, would

seem to support a finding that a

responsible official who ignores a

pattern of injuries--even if only

negligently inflicted and certainly

if done intentionally--is himself

fairly deemed ‘at fault.'" Develop-

ments, supra, at 1229 [footnotes

omitted].

II, CERTIORARI SHOULD BE GRANTED TO

RESOLVE A

THIRD AND SECOND CIRCUITS RE-~

GARDING THE AWARD OF DAMAGES.

When the District Court decided that

it could not fashion injunctive relief to

redress the clear and flagrant constitu-

tional violations it found had been

committed, it decided to award monetary

damages to several of the search victims.

The Court of Appeals reversed that deter-

mination, relying on a recent series of

decisions of this Court to the effect that

"legal" relief may not be awarded by a

federal court "incidental" to an equitable

action. Curtis v. Loether, 415 U.S. 189

(1974); Dai een v. Wood, 369 U.S.

469 (1962); n Theatres, Inc. v.

29

Westover, 359 U.S. 500 (1959).

Although the cases cited do support

that. proposition, all of them involved

plaintiffs who initially sought both legal

and equitable relief. This Court has

never decided whether a federal equity

court, following a hearing, may award

money damages in lieu of an injunction

when it determines that it cannot properly

fashion injunction relief.

On that issue, the opinion of the

Second Circuit in Crane Co. v. American

Standard, Inc., is directly contrary

to the conclusion of the Third Circuit

in this case. In Crane, the Second

Circuit declined to read the

Beacon line of cases as "requiring a.

judge to relinquish to a jury the shaping

of relief in an action that was properly

begun and tried solely as a suit in equity

for injunctive relief simply because sub-

sequent events may have put a whiff of

money in the air. 490 F. 2d at 345. In

Curtis v. Loether, supra, this Court ob-

served that it would not "go so far as to

Say that any award of monetary relief

must necessarily be ‘legal' relief." 415

U.S. at 196,

This Court should grant certiorari

to review and resolve the conflict be-

tween the Second and Third Circuits on

this issue of the Court’s power to award

money damages in an equitable action.

30

CONCLUSION.

The Petition for Certiorari Should

Be Granted.

Frank Askin

Constitutional Litigation

Clinic

Rutgers University Law

School

180 University Avenue

Newark, New Jersey 07102

Bruce J. Ennis

Joel M. Gora

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

August 1977 Attorneys for Petitioners