Opposition — City of Pittsburgh v. Mahone

Supreme Court, U. S.

FILED

EC 22 977

in THE | MICHAEL RODAK, N.

Supreme Court of the United States

October Term, 1977

No. 77-731

CITY OF PITTSBURGH,

Petitioner

vs.

GLENN R. MAHONE and

HARVEY L. MAHONE,

Respondents

On Petition for a Writ of Certiorari to

The United States Court of Appeals for

The Third Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

GILBERT J. HELWIG

REED SMITH SHAW & MCCLAY

P.O. Box 2009

Pittsburgh, Pennsylvania 15230

Attorney for Respondents

Of Counsel:

WENDELL G. FREELAND

GARLAND H. McApoo, Jr.

ROBERT L. BYER

SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219

TABLE OF CONTENTS

PAGE

Questions Presented for Revi 1

Reasons for Denying the Petition 2

A. There is no Conflict Between the Circuits 2

B. This Case is not “Ripe” for Review .............. 5

C. The Imposition of Liability And a Munici-

pal Corporation Under 42 U.S.C. §1981 is

Not Inconsistent with Monroe v. Pape 8

Conclusion

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ii

Table of Citations.

TABLE OF CITATIONS

CASES PAGE

Bennett v. Gravelle, 451 F.2d 1011 (4th Cir. 1971)

cert. dismissed 407 U.S. 917 (1972) ............00.... 2

Bennett v. Gravelle, 323 F.Supp. 203 (D. Md. 1971).. 3, 4

Campbell v. Gasden County District School Board,

534 F. ad 650 (Sth Cir. 19706) . 4

District of Columbia v. Carter, 409 U.S. 418 (1973).. 9

Jones v. Mayer Co., 392 U.S. 409 (19689) 7,9

Maybanks v. Ingraham, 378 F.Supp. 913 (E.D. Pa.

RABAT ROAST aS eink aS Raa eateeeeree 5

Monroe v. Pape, 365 U.S. 167 (1961 2, 3, 8

Raffety v. Prince George's County, 423 F.Supp. 1045

,,, AI 4, 5, 8

Runyon v. McCrary, 427 U.S. 160 (19769) 9

Sethy v. Almeda County Water District, 545 F. 2d

,, 1

United States v. City of Chicago, 549 F.2d 415 (7th

r - 4

OTHER AUTHORITIES:

, 2, 3, 4, 5, 6, 7, 8, 9

D ac ss ciiealadentinnsoninineinnia 8,9

DDs i ania pmeminabinanntaabie 6

Hart & Wechsler, The Federal Courts And The Fed-

. — 5

IN THE

Supreme Court of the United States

October Term, 1977

No. 77-731

CITY OF PITTSBURGH,

Petitioner

vs.

GLENN R. MAHONE and

HARVEY L. MAHONE,

Respondents

On Petition for a Writ of Certiorari to

The United States Court of Appeals for

The Third Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

QUESTIONS PRESENTED FOR REVIEW

1. Did Respondents state a claim for violation of

the “full and equal benefit of all laws and proceedings”

and the “like punishment, pains, penalties... exactions

of every kind” clauses of 42 U.S.C. §1981 by averments

(a) that they were denied rights guaranteed by the

Thirteenth and Fourteenth Amendments of the Con-

stitution of the United States by a racially-motivated

pattern of police misconduct in making arrests and

processing charges against black citizens, as a result

of which Respondents were physically assaulted and

subjected to false arrests; and (b) that the responsible

municipality failed to prevent such injustice by inade-

Reasons for Denying the Petition.

quately training, supervising, or disciplining said police

officers, despite its prior knowledge of the racial animus

and violent propensities of such police officers?

2. Is a municipal corporation exempt from liability

under 42 U.S.C. $1981?

3. Do Respondents’ averments state claims against

Petitioner which are cognizable in federal courts under

28 U.S.C. $1331?

REASONS FOR DENYING THE PETITION

Petitioner urges three grounds for granting cer-

tiorari: It alleges 1) that there is a conflict between

circuits on whether a municipality is subject to claims

under 42 U.S.C. $1981, 2) that the court below has

decided a matter of first impression in holding that

Respondents’ Complaint asserted a cause of action within

the scope of 42 U.S.C. §1981, and 3) that the holding

below is inconsistent with Monroe v. Pape, 365 U.S.

167 (1961).

For reasons set forth below, Respondents submit

that the first and third of these assertions are incorrect

and that the second does not, in the circumstances of

this case, justify the grant of certiorari.

A. THERE Is No CONFLICT BETWEEN THE CIRCUITS

Petitioner incorrectly states that the decision below

“is in direct conflict with a decision of the Fourth Cir-

cuit...” (Petition, p. 8). The Fourth Circuit decision

is Bennett v. Gravelle, 451 F.2d 1011 (4th Cir. 1971),

cert. dismissed, 407 U.S. 917 (1972), which was an

action for racial discrimination in employment. The

Reasons for Denying the Petition.

Fourth Circuit affirmed a decision for the defendants

on the basis of the opinion by the district court, Bennett

v. Gravelle, 323 F.Supp. 203 (D. Md. 1971). The district

court’s decision involved two sets of plaintiffs: a group

of 29 black and white public employees who had been

discharged by defendants for engaging in an unlawful

walkout; and a group of 5 current employees of de-

fendants who intervened after the action had com-

menced. 323 F.Supp. at 205-06. The district court dis-

missed the claims of the group of discharged employees,

holding that 42 U.S.C. 51981 was not violated by dis-

charging public employees who engaged in a walkout

prohibited by state law, even though the claimed purpose

of the strike was to protest alleged racial discrimina-

tion. The district court specifically stated that because

of its holding, it “need not, as to these plaintiffs, answer

the defendants’ other contentions.“ 1 323 F.Supp. at 207

(emphasis added)

This was the only holding which came to the Court

of Appeals for review. It did not have before it the

claims of the current employees. The decision of the

Court of Appeals specifically states, “This appeal is

concerned only with the individual claims of the ap-

pealing plaintiffs” and identifies those plaintiffs as the

employees discharged for the illegal walkout. 451 F.2d

at 1012. Nowhere in its opinion does the court discuss

1. One of these “other contentions” was that a

municipality is not subject to liability under 42 U.S.C.

§1981. The district court did address this contention in

considering the claims of the current employees and con-

cluded that in light of Monroe v. Pape, 365 U.S. 167

(1961), a municipality was not subject to liability under

42 U.S.C. §1981 “unless there is a clear showing that the

government entity is susceptible to a state suit for dam-

ages.” 323 F. Supp. at 216.

Reasons for Denying the Petition.

the question of municipal liability under 42 U.S.C. $1981.

The Fourth Circuit, therefore, in affirming on the basis

of the district court opinion, decided only that firing

public employees who engage in a walkout prohibited

by state law does not violate 42 U.S.C. 51981 even

though the purpose of the walkout was to protest racial

discrimination.

It is clear, therefore, that in Bennett the Fourth

Circuit did not, as claimed by Petitioner, rule on the

issue of municipal liability under 42 U.S.C. §1981.2

Petitioner does not cite and Respondents are not

aware of any Court of Appeals decision not subsequently

overruled which is in conflict with the decision below.*

The Fifth, Seventh and Ninth Circuits have held

that municipalities are liable under 42 U.S.C. $1981 in

actions for racial discrimination in employment. Camp-

bell v. Gasden County District School Board, 534 F.2d

650 (5th Cir. 1976); United States v. City of Chicago,

549 F.2d 415 (7th Cir. 1977); Sethy v. Almeda County

Water District, 545 F.2d 1157 (9th Cir. 1976) (en banc).

Each of these Circuits, in accord with the Third Circuit

2. This has been recognized, at least by implica-

tion, even by the District Court which had decided Ben-

nett. In a later case, it held that a municipality could be

held liable under 42 U.S.C. § 1981 for racially-motivated

police brutality: Raffety v. Prince George’s County, 423

F. Supp. 1045, 1058-62 (D. Md. 1976).

3. Every Court of Appeals decision 1

hold —~y > liable under 42 U.S.C. $1981 has been

overruled. Sethy v. Almeda County Water District,

545 F.2d 1157 (9th Cir. 1976) (en banc) (overruling one

prior decision) ; United States v. City of Chicago, 549

F.2d — 425 (7th Cir. 1977) (overruling two prior de-

cisions).

Reasons for Denying the Petition.

iu the case at bar, rejects the arguments regarding

municipal immunity advanced by Petitioner.

B. THIS CASE Is Not “Ripe” For REVIEW.

Petitioner also seeks to justify review on certiorari

by asserting that the issues involved in the present

case are “essentially one of first impression.” (Petition

p. 16) .4

Where a lower court has decided an important

question of federal law which has not been settled by

the Supreme Court, certiorari is normally granted only

(1) if the question is unlikely to be clarified by further

litigation in lower federal courts or (2) if an immediate

consideration of the question by the Supreme Court

is necessary in the public interest. See Hart & Wechsler,

The Federal Courts And The Federal System (2d Ed.)

p. 1628. The paucity of decisions of lower federal courts

or any by this Court exploring the scope and purpose

of the “full and equal benefits” and “like punishment”

clauses of 42 U.S.C. $1981 is a reason for deferring the

examination of the issue in this Court until the matter

can be explored in the lower federal court system.

One possible effect of the decision of the court

below will be to stimulate analysis of the question in

other cases now pending or which may be filed in other

federal courts. This Court’s certiorari policy suggests

that, in these circumstances, the better course is to

wait until the lower federal courts have had the op-

portunity fully to explore all relevant considerations.

4. Actually, there have been two district court

holdings that similar allegations do state claims under

42 U.S.C. 81981. Raffety v. Prince —— 4 County, 423

F. ra" 1045 (D. Md. 1976); Maybanks v. Ingraham,

378 F. Supp. 913 (E. D. Pa. 1974).

Reasons for Denying the Petition.

A further reason for denying review at this time

is the procedural posture of the present case. The case

against Petitioner came before the Court of Appeals

only because of the entry of final judgment in favor of

the city under F.R.C.P. 54(b). Even the Court of Ap-

peals did not determine all the issues involved in the

case. In reversing the district court’s dismissal and

remandiug the proceedings to the district court for

trial, the Court of Appeals decided only the issues

presented by Respondents’ 42 U.S.C. §1981 claims. It

did not decide whether Respondents’ state law claims

against Petitioner are within the pendent jurisdiction

of the federal court, leaving this issue to be decided

by the district court on remand. In addition, the Court

of Appeals concluded that it was not necessary for it

to decide whether Respondents’ claims were within the

jurisdiction of the federal courts under 28 U.S.C. 1331.

The procedural posture of this case, therefore, is

that the case must go back to the district court for

trial of the 81981 claim and, possibly the state law

claims against Petitioner, as well as for trial of all

claims against the individual defendants. Even if this

Court were to grant certiorari and reverse the decision

below, it is likely that the Court of Appeals (and indeed

perhaps this Court) would ultimately be asked to de-

termine whether Respondents have stated claims against

Petitioner under the Thirteenth and Fourteenth Amend-

ments which are cognizable under 28 U.S.C. 81331. Re-

view of these varied but related issues, if ever a proper

matter to be brought before this Court in this case,

should be deferred until final determination of this

case on the merits by the lower federal courts. Such

determination, if made on the pendent state law grounds,

for example, could make unnecessary a determination

Reasons for Denying the Petition.

by this Court of the 42 U.S.C. 81981 questions now

tendered by Petitioner.

Respondents do feel, however, that the court below

correctly held that the averments in Respondents’

Amended Complaint were sufficient to state a claim

under 42 U.S.C. 81981. Originally enacted by Congress

in 1866 to fulfill the promise of the Thirteenth Amend-

ment, this Act is a remedial statute of broad spectrum,

designed to obliterate forever all badges and incidents

of slavery. ones v. Mayer Co., 392 U.S. 409 (1968). In

Jones, Mr. Justice Stewart, in the opinion of the court,

pointed out that the Congress, in enacting the Civil

Rights Act of 1866, was moved by the objective of

giving real content to the freedom guaranteed by the

Thirteenth Amendment, citing, with approval, the fol-

lowing remarks of Representative Thayer of Pennsyl-

vania in the course of the congressional debates:

“The bill which now engages the attention of

the House has for its object to carry out and guar-

anty the reality of ... (the Thirteenth Amendment).

. . It is to give to it practical effect and force. It

is to prevent that great measure from remaining

a dead letter upon the constitutional page of this

country.. The practical question now to be de-

cided is whether they shall be in fact freemen. It

is whether they shall have the benefit of this great

charter of liberty given to them by the American

people.” (Emphasis by the court.)

Surely for a municipality to ignore a pattern of

racially-motivated police misconduct which resulted in

physical assaults and false arrests of black citizens

would have been considered even in 1866 as a denial to

the black citizens of such community of “the full and

Reasons for Denying the Petition.

equal benefit of all laws and proceedings for the security

of persons and property” and to subject such black citi-

zens to “punishment, pains, penalties . .. and exactions”’

unlike those faced by white citizens of the community.

As stated in Raffety v. Prince George’s County,

supra, at 423 F. Supp. page 1062:

„ . . Notwithstanding a lack of judicial prece-

dent, this court believes that one’s rights under this

section are violated by a racially motivated deten-

tion, interrogation, and investigation by police offi-

cers. A contrary holding would relegate the above

language... (of §1981) ...to meaningless phrase-

ology... .”

C. TRE IMPOSITION OF LIABILITY AGAINST A MUNICI-

PAL CORPORATION UNDER 42 U.S.C. §1981 1s Nor

INCONSISTENT WITH MONROE V. PAPE.

Petitioner also contends that the ruling below is in-

consistent with this Court’s holding in Monroe v. Pape,

365 U.S. 167 (1961). This contention cannot stand

analysis of the legislative history and constitutional un-

derpinnings of 42 U.S.C. §1981.

Monroe v. Pape held that liability could not be im-

posed upon a municipality under 42 U.S.C. §1983. The

Court studied the legislative history of $1983, which is

derived from the Civil Rights Act of 1871, and concluded

that Congress intended that municipal corporations not

be included within the scope of the word “person.” 42

U.S.C. §1981, however, is derived from the Civil Rights

Act of 1866. It is intended to enforce and assure the

guaranty of the Thirteenth Amendment. This Court has

recognized that this distinct legislative history and con-

stitutional basis requires that §1981 not be subject to

Reasons for Denying the Petition.

the same limitations as under 42 U.S.C. $1983. See eg.

Runyon v. McCrary, 427 U.S. 160 (1976) ; Cf. District of

Columbia v. Carter, 409 U.S. 418 (1973).

There is nothing in the legislative history nor in the

language of 42 U.S.C. §1981 to justify excluding Peti-

tioner from its scope. Such an exclusion would frustrate

the mandate of the Thirteenth Amendment and the in-

tent of Congress to obliterate forever all badges and

incidents of slavery. Jones v. Alfred H. Mayer Co., 392

U.S. 409, 439-43 (1968).

10

Conclusion.

CONCLUSION

For the above reasons, the Petition for a Writ of

Certiorari should be denied.

Respondents suggest, however, that if certiorari is

granted, a fair adjudication of the case and a proper

resolution of the legal issues it involves for the guidance

of lower federal courts would require that this Court

also consider the 28 U.S.C. 1331 issue which was not

decided by the Court of Appeals.

Respectfully submitted,

GILBERT J. HELWIG

REED SMITH SHAW & MCCLAY

Attorney for Respondents

Of Counsel:

WENDELL G. FREELAND

FREELAND & KRONZ

GARLAND H. McApoo, JR.

TUCKER ARENSBERG & FERGUSON

ROBERT L. BYER