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

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UEP.2 2 1977

MHOHEL RODAK, JR, CLERK

Supreme Court of the United States

Ocromm Team, 1077

No, 77-401

IN THE

IWORGE W. LEWIS, et al,

Petitioners,

ow.

WILLIAM F, HYLAND, et al,

Respondents.

On Pererion ron Warr or Crrionan To THE

Unrren Staves Counr ov Avreata ron tae Tr Crmourr

BRIEF IN OPPOSITION

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WILLIAM F, HYLAND,

Attorney General of New Jersey,

Attorney for Respondents,

William F, Hyland, et al.,

State House Annex,

Trenton, New Jersey 08625

Sivepnin SKILLMAN

Assistant Attorney General

Of Counsel

Kaminie L, Coniey

Deputy Attorney General

On the Brief

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Ni, Appellate Printing Co. Ine, South Plainfield, New Jersey (201) 763.0200

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TABLE OF CONTENTS

Counter-Statement of Issues Involved ............. 1

Counter-Statement of the Case 6.06.66 3

ANGUMENT:

The Court should deny the Petition for Writ of Cer-

tiorari because the District Court and the Court

of Appeals correctly concluded that Federal Equit-

able Relief is not warranted under 42 U.S.C.

§1983 against the responsible state officials where

the sole proof of alleged police misconduct con-

sists, at the most, of 34 separate incidents occur:

ring over a period of three years, the last of which

occurred over five years ago at a time when the

present responsible state officials were not yet in

office, and where the Trial Court factually deter-

mined, and the Court of Appeals agreed, that

there was no deliberate pattern and practice of

unconstitutional police activity 600.06, 6

SE cB UREN GE cas cus 6b 66000 500 ctebeccceeds 13

Cases Crrep;

Berenyi v, District Directors, Immigration and

Naturalization Service,

Tos cs ice donecéss ececener 7

Crane v. American Standard, Inc.,

400 F.2d 392 (2nd Cir, 1973) ....., SOR PO ee ll

Lewis v. Kugler,

406 F.2d 1343 (3rd Cir, 1971) 66s, 8

Rizzo v, Goode,

2B. 0 |. | GaSe 1, 3, 6, 10, 12

Srarure Crrep:

SE ED cc ccccen ceeds cveecoscccecce 1,6, 12

Ne ee ee oe

IN THE

SUPREME COURT OF THE UNITED STATES

Octoser TERM, 1977

No. 77-301

GEORGE W. LEWIS, et al.,

Petitioners,

‘DS.

WILLIAM F. HYLAND, et al.,

Respondents.

On PETITION FOR WRriT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

COUNTER-STATEMENT OF ISSUES

INVOLVED

1. Is broad equitable relief against the New Jersey

State Police appropriate where, similar to the record in

Rizzo v. Goode, 423 U.S. 362 (1976), the sole proof of 42

U.S.C. §1983 liability at the most consists of 34 separate

incidents of illegal searches by individual State Troopers

occurring over a three year period from April 1969 to

February 1972 and where the responsible State officials

against whom the injunctive relief is sought were not in

office at the time of the alleged incidents and were not

shown to be responsible in any way for the alleged mis-

conduct?

2 Counter-Statement of Issues Involved

2. Was the award of damages against three defendant

troopers

te where, to the substantial prejudice of

defendants, the issue of damages was raised for the first

time

plaint and

end of the trial?

y six years after the filing of the com-

approximately three and a half years after the

COUNTER-STATEMENT OF THE CASE

This case involves an allegation by plaintiffs, that the

New Jersey State Police conducted a pattern and practice

of illegal searches and seizures of certain individuals travel-

ing on the New Jersey highways over a period of time

spanning three years, from 1969 to 1972, allegations similar

to those made by plaintiffs against Philadelphia officials

in this Court's recent decision of Rizzo v. Goode, 423 U.S.

362 (1976).

_ The complaint originally was filed in December 1970

seeking broad injunctive relief primarily against former

Attorney General George F. Kugler, Jr., and former Super-

intendent of State Police, David B. Kelly, and several in-

dividual troopers. After a hearing on plaintiffs’ motion

for preliminary injunction, the District Court denied the

request and dismissed the complaint primarily on grounds

of abstention. On appeal, the Court of Appeals for the

Third Circuit found abstention inappropriate for those

incidents which did not involve ongoing criminal proceed-

ings and remanded for a trial. Lewis v. Kugler, 466 F.2d

1343 (3rd Cir. 1971).

The matter was tried on December 6, 7, 9, 10, 14, 15,

16, 20, 22, 1971; March 7, 8, 9, 1972; April 4, 1972; June

27, 1972. The heart of plaintiffs’ case consisted of testi-

mony by 60 witnesses of varying appearances, primarily

“long-haired,” concerning 66 incidents of alleged illegal

searches conducted by New Jersey State Troopers over a

* The two pa defendants, Attorney General Kugler and Super-

intendent Kelly, have left public office. The present Attorney General, Wiil-

liam F. Hyland, who took office in 1974, had no official dealings with or

responsibility for the State Police during the period of time in which the

alleged incidents occurred, the last of which was in February 1972. The

nt Superintendent of the State Police, Clinton Pagano, took office in

1975. While prior to his appointment as Superintendent he was a member

of the supervisory staff of the State Police. there is no indication in the

record that he ever exercised line supervision over the individual troopers

found to have engaged in improper police conduct.

4 Counter-Statement of the Case

period of three years, from 1969 to 1972. The District

Court determined that there were at least 1,500,000 police

contacts with travelers in automobiles in New Jersey dur-

ing the three years plaintiffs had alleged the illegal searches

had occurred (Pet. App. p. 48a). Most importantly, the

District Court found:

ghts

Attorney General, the Super-

intendent, or State Police as a whole. Those instances

of illegality were no more than willful and random

acts on the

part of a minority of Troopers.

With respect to the 34 incidents of illegal activity,

only three involved named defendant troopers and named

plaintiffs. Thus, the District Court concluded that “the

nature of the present violation does not warrant large scale

~— relief” (Pet. App. p. 50) and further concluded

that it:

Injunctive relief against the individual troopers, therefore,

was found by the District Court to be inappropriate (Pet.

App. p. 30a). However, for the first time in the litigation,

the court injected the issue of damages by awarding dam-

ages against three troopers (Pet. App. p. 125a to 127a).

Counter-Statement of the Case 5

On appeal, the Court of Appeals for the Third Circuit

found “adequate and reasonable support” for the District

Court's factual determinations (Pet. App. p. 21a). Ac-

cordingly, it concluded:

“The district court's findings of random acts on the

part of a minority of Troopers, as well as its findings

of ‘no deliberate pattern and practice’ on the part of

New Jersey officials, bring this case wholly within

the doctrine of Rizzo [v. Goode, 423 U.S. 362 (1976)]

However, the Court of Appeals reversed the District Court's

award of damages made “after the case was, for all intents

and purposes, at a close . . . .” (Pet. App. p. 29a). Such

damages were inappropriate, the Court of Appeals deter-

mined, because “no damages had ever been contemplated

by the parties” (Pet. App. p. 29a), and because had such

damages been contemplated “appropriate pleadings and

ings, including discovery, would have been utilized”

and “a jury demand would probably have been made”

(Pet. App. pp. 30a to 31a). It is from these factual find-

ings and conclusions that plaintiffs now petition for writ

of certiorari.

ARGUMENT

The Court should deny the Petition for Writ of Cer-

tiorari because the District Court and the Court of

Appeals correctly concluded that Federal Equitable

Relief is not warranted under 42 U.S.C. §1983 against

the responsible state officials where the sole proof of

alleged police misconduct consists, at the most, of 34

separate incidents occurring over a period of three

years, the last of which occurred over five years ago

at a time when the present responsible state officials

were not yet in office, and where the Trial Court

factually determined, and the Court of Appeals

agreed, that there was no deliberate pattern and prac-

tice of unconstitutional police activity.

The sole issue before the District Couri and the Court

of Appeals in this case was whether the facts produced by

plaintiffs warranted, under the doctrine of Rizzo v. Goode,

423 U.S. 362 (1976), federal injunctive relief against the

New Jersey State Police, in particular against the Attorney

General of New Jersey and the Superintendent of the State

Police. Plaintiffs paraded before the trial court approxi-

mately 60 witnesses of various appearances during 28 days

of trial testifying to some 66 alleged incidents of illegal

searches and seizures. The incidents occurred during a

three year span of time from 1969 to 1972, the last of which

occurred five years ago in April 1972. The District Court,

however, found that the evidence produced by plaintiffs

did not demonstrate a deliberate pattern and practice of

unconstitutional police conduct and accepted the responsi-

ble State officials categorical denial of such pattern and

practice. These factual findings by the District Court, con-

curred in by the Court of Appeals, formed the basis of the

conclusion that federal injunctive relief was not warranted.

4

Argument 7

Plaintiffs have not , much less demonstrated,

that the factual findings made by the District Court and

concurred in by the Court of Appeals were obviously

erroneous. Thus, the petition for writ of certiorari, which

Pp seeks to have this Court review the factual record

below, fails to state any meritorious grounds for such re-

view. Berenyi v. District Director, Immigration and Na-

turalization Service, 385 U.S. 680 (1967). That the Dis-

trict Court and the Court of Appeals properly denied in-

junctive relief on the basis of the record in this case is clear.

In Rizzo v. Goode, plaintiffs alleged a pattern and

practice of misconduct by police officers directed against

minority citizens in particular and against all Philadelphia

residents in general which violated the Fourth Amend-

ment. The responsible city officials, the Mayor, the City

Managing Director and the Police Commissioner, were

charged with express authorization and encouragement of

the alleged mistreatment and with failure to act in a

manner so as to assure that it would not recur in the future.

The sole relief sought was equitable in nature, consisting of

a mandatory injunction imposing a remedial program vnon

the City Police Department. During 21 days of trial, 250

witnesses testified with respect to approximately 40 alleged

incidents of misconduct. Approximately 20 of the incidents

were found to involve illegal activity on the part of the

police officers.

That activity was found by the District Court (see 357

F. Supp. 1289, 1292-1316) to include not only illegal

arrests but also violent, unwarranted assaults by the City

police with blackjacks and nightsticks, resulting in serious

injuries being inflicted upon members of the public. The

police officers were also found to have made such deroga-

tory and provocative comments as “[h]ighway patrolmen

are known to be rough and tough, and I am a highway

patrolman, and I am proud of it” following a severe head

beating given by the patrolman who made the statement,

4 Argument

and such racial slurs as age you now nigger” as well as

referring to citizens as “black pigs” and “Jew bastards,”

The District Court also found the existing procedures for

handling civilian complaints and for enforcement of police

discipline to be “totally inadequate,” The policy of the

police d nt, the District Court found, was to dis-

courage the filing of complaints, to avoid or minimize the

consequences of proven misconduct and to resist disclosure

of the disposition of such complaints, Nonetheless the Dis-

trict Court in Riszo did not find any evidence of an overall

policy on the part of the responsible officials to violate the

constitutional rights of citizens, but did find that uncon.

stitutional activity ocurred with such frequency that it

could not be dismissed as rare or isolated { 357 F, Supp.

at 1319),

Despite these findings, this Court determined that im-

position of §1983 liability justifying federal injunctive relief

was not warranted, Rather, nothing less than proof of

deliberate and pervasive patterns end practices on the part

of the responsible state officials was required,

The District Court and the Court of Appeals properly

found, the facts in this case similarly do not demonstrate

$1983 liability, As in Rizzo, while the District Court found

several instances of illegal activity on the part of individual

police officers, it found no pattern and practice of such

misconduct and no policy on the part of the responsible

officials to foster such misconduct, As in Risse, plaintiffs’

case was based primarily upon an attempt to demonstrate

a large number of instances of misconduct without demon-

strating any causal relationship between those instances and

the responsible officials. Indeed, the evidence in Rizzo of

the violent unwarranted assaults upon citizens and numer-

ous derogatory, provocative racial slurs was, if anything,

far more serious than the 34 instances here of what were

generally technical violations of the Fourth Amendment

proscription against unreasonable searches. Only three of

Argument )

these instances were found by the District Court to war-

rant an award of damages (Pet, App. pp, L2la to 124a),"

And, unlike this case, the Police Department of the City

of Philadelphia was found by the District Court to foster

a policy of discouraging citizen complaints and minimis:

ing or avoiding altogether the consequences of proven

misconduct,

Surely, 4 federal injunctive reliet was found inap-

propriate in Risso, a fortiori, it is inappropriate here,

Thus, while the opinion of the Court of Appeals, auth-

ored by a member of the Court reversed in Risse, unques-

tionably reflects some sympathy for plaintiffs and rejects

anything other than a narrow reading of Riszo (Pet, App.

p. 13a), it nonetheless finds the specific facts of this case

controlled thereby,

In light of the District Court's determination, and the

Court of Appeals’ concurrence, that plaintiffs did not prove

a deliberate pattern and practice of police misconduct and

that the categorical denial by the responsible State officials

of fostering such a pattern and practice was supported by

the record, plaintiffs’ petition for writ of certiorari is clearly

specious, It completely ignores these factual findings and

fails utterly to demonstrate that such findings are clearly

erroneous, much less even questionable, Indeed, the peti-

tion is totally devoid of any mention at all of these findings,

Rather, it improperly focuses upon allegations plaintiffs

sought, but failed, to demonstrate below, and recites those

illegations as if actually found as facts by the District

Court, The entire petition is permeated with assertions

that there was “sufficient credible evidence” of a deliberate

pattern and practice of misconduct without any discussion

or recognition of the findings by the District Court. For

instance, in their Statement of the Case. plaintiffs assert:

* The insubstantial amounts of those damages, $100, $150, $250 re-

spectively, plainly rctlects the District Court's assessment of the seriousness

of the constitutional violations involved.

10 Argument

".. The ot failed and refused to

control the lawless vior of the troopers, refused

to discipline troopers whose lawless acts pursuant to

this pattern and practice were called to

their attention, and instead encouraged such acts

by hose unconstitutional acts

arijuna or narcotics,” (Pet,

t

‘

Not only did the District Court not make such findings,

but the findings it did make are clearly to the contrary.

Notwithstanding plaintiffs’ efforts to fashion factual

findings to their liking, quite simply they failed in this case

to demonstrate direct participation by the responsible State

officials in the alleged misconduct, and they failed to demon-

strate anything even approaching a pervasive and deliberate

pattern and practice of conducting illegal searches and

seizures of “long-haired travelers.”

Furthermore, even if they had demonstrated causal

responsibility on the part of the then responsible officials,

Attorney General Kugler and Superintendent Kelly, for a

pervasive, deliberate pattern snd puastiee of unconstitu-

tional police conduct, clearly it would be inappropriate

for the federal court to exercise its extraordinary equitable

power against the present Attorney General and Super-

intendent, As this Court has recently observed;

“Where there have been prior patterns of diserim-

ination by the occupant of a state executive office but

an intervening change in administration, the issuance

of prospective coercive relief against the successor to

the office must rest, at a minimum, on supplemental

findings of facts indicating that the new officer will

continue the practice of his predecessor.” Mayor v.

Educational Equality League, 415 U.S. 605, 94 S. Ct.

1323, 39 L.Ed.2d 630, 645-646 (1974).

Argument ll

In urging that this case nonetheless ts an im.

nt question of federal law which needs to be settled

y this Court, the petition for writ of certiorari suggests a

conflict between the Court of Appeals’ decision in this

case reversing the award of damages and the Court of Ap-

peals’ decision in Crane 0, American Standard, Ine,, 490

F.2d 392 (2nd Cir, 1973) authorizing an award of dam-

ages. The short answer to this contention is that no con-

flict exists as the Court of A s perceived, The deci-

sion in Crane rests upon wholly distinct facts, That case

involved federal securities law and was based primarily

upon the court's determination that no right to a jury trial

on the damage issue arose in the context, Further the

court clearly recognized that the possibility of damages in

that suit had been contemplated throughout much of the

proceedings by all parties, including the courts involved.

490 F.2d at p. 340, footnote 11, Here, the Court of Ap-

peals canna determined that the issue of damages had

not been injected into the case until it was at a close, It

further properly determined that defendants were sub-

stantially prejudiced thereby, because ry! would have

had a right to a [ury trial on the issue of damages which

right they probably would have asserted, These deter:

minations by the Court of Appeals are not only clearly

correct, but they have not been challenged by plaintiffs,

But beyond this, the determination concerning dam-

ages reached by the Court of Appeals in this case and in

Crane, are purely factual in nature and are different only

because the facts in each case are different, Thus, the

important question of federal law asserted by appellants

is not one of inconsistent decisions concerning issues of

statutory construction or constitutional law affecting broad,

fundamental legal principles. Rather, they suggest that

this Court’s review is essential based on nothing more than

different decisions in cases with factually distinct records

12 Argument

which, not surprisingly, have resulted in the distinct deci-

sions, Cleary, a welt of certiorari to review this type of

“conflict” is not warranted,

In any event, plaintifis have never been the - -

bit interested in an award of damages in this case,

had, they would have brought capienets $1983 phe

against the individual Troopers, Their only interest is in

convincing this Court to reconsider Rizzo v, Goode be-

cause they think it incorrectly decided, Since there exists

no compelling reason for soth reconsideration and since

clearly there is no reason for this Court to review the

np be eo the petition for writ of certtorart should

led,

18

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for writ of certiorari should be denied.

Respectfully submitted,

WILLIAM F, HYLAND

Attorney General of New Jersey

Attorney for Aespondents

STEPHEN SKILLMAN

Assistant Attorney General

Of Counsel

Enminie L,, Conny

Deputy Attorney General

On the Brief