# Opposition — George W. Lewis v. William F. Hyland > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2433%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 931 ## Text TTee hk 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 — ee aoe = ere A A a ae —_—_ a re ee es ee eee 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 lll Ni, Appellate Printing Co. Ine, South Plainfield, New Jersey (201) 763.0200 — a a 3 re , f - 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2433%3A3. Public record. Not legal advice.