Petition — Molina v. Richardson

~ Supreme Gourk US

FILED

UCT 19 1978

IN THE

SUPREME COURT OF THE UNITED STATES.

October Term, 1978

No. q 8-669

DOMINGO ROQUE MOLINA,

Petitioner,

vs.

PAUL T. RICHARDSON, JOHN H.

GIBSON and THE CITY OF

LOS ANGELES,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL R. MITCHELL

10850 Wilshire Boulevard

Sixth Floor

Los Angeles, CA 90024

(213) 475-8564

Attorney for Petitioner

Ee

~

whe eld Lf tee om

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

|

DOMINGO ROQUE MOLINA,

Petitioner,

vs.

PAUL T. RICHARDSON, JOHN H.

GIBSON and THE CITY OF

LOS ANGELES,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL R. MITCHELL

10850 Wilshire Boulevard

Sixth Floor

Los Angeles, CA 90024

(213) 475-8564

Attorney for Petitioner

TOPICAL INDEX

Table of Authorities

INTRODUCTION

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL, STATUTORY, AND

RULES PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX A - OPINION

Court of Appeals

APPENDIX B - DISMISSAL ORDER

13

TABLE OF AUTHORITIES

Cases

Aldinger v. Howard (1976)

427 U.S. 1, 96 S.Ct. 2413,

49 L.Ed.2d 276

Amen v. City of Dearborn (6th Cir.

1976) 532 F.2d 554

Beard v. Robinson (7th Cir. 1977)

563 F.2d 331

Bethea v. Reid (3rd Cir. 1971)

445 F.2d 1163

Bivens v. Six Unknown Agents of

Federal Bureau of Narcotics

403 U.S. 388, 91 S.Ct. 1999

29 L.Ed.2d 619 (1971)

Brault v. Town of Milton

(2nd Cir. 1975) 527 F.2d 730

Calvin v. Conslick (7th Cir. 1975)

520 F.2d 1

City of Cleveland v. Albaugh

(6th Cir. 1978) 577 F.2d 740

No. 78-244, petn. for cert.

filed August 8, 1978

City of Kenosha v. Bruno (1973)

4i2 U.S. S07, 93 S.Ct. 2222

37 L.Ed.2d 109

Comtronics Inc. v. Puerto Rico

Tele. Co. (lst Cir. 1977)

553 F.2d 701 10,

ai.

10

ll

ll

ll

—r

tetietthid Chk, ae ~

IIa wince \e wo.

Cox v. Stanton, et al. (4th Cir.

1975) 529 F.2d 47

District of Columbia v. Carter

(D.C. Cir. 1973) 409 U.S.

418, 93 S.Ct. 602, 34 L.Ed.

2d 613

Fine v. City of New York (2nd

Cir. 1975) 529 F.2d 70

Fitzgerald v. Porter Memorial

Hospital (7th Cir. 1975)

523 F.2d 716, cert den. 425

0.8. 9i6, 96 8.Ct. i510

47 L.Ed.2d 768 (1976)

Gagliardi v. Flint (3rd Cir.

1977) 564 F.2d 112

Gentile v. Wallen (2nd Cir. 1977)

562 F.2d 193

Hanna v. Drobnick (6th Cir. 1977)

514 F.2d 393

Hostrop v. Board of Junior College

Dist. #515 (7th Cir. 1975)

523 F.2d 569

Jamison v. McCurrie (7th Cir.

1977) 565 F.2d 483

Kostka v. Hogg (lst Cir. 1977)

560 F.2d 37

Lewis v. D.C. Dept. of Corrections

(D.C. Cir. 1976) 533 F.2d 710

iii.

9, 10

10

10

Mahone v. Waddle (3rd Cir. 1975)

564 F.2d 1018

Matherson v. Long Island State

Park Commission (2nd Cir.

1971) 442 F.2d 566

McDonald v. State of Illinois

(7th Cir. 1977) 557 F.2d 596

McNally v. Pulitzer Pub. Co.

(8th Cir. 1976) 532 F.2d 69

Molina v. Richardson (1978)

578 F.2d 846 (Appendix A)

Muskegon Theatres, Inc. v. City

of Muskegon (6th Cir. 1974)

507 F.2d 199

Owen v. City of Independence, Mo.

(8th Cir. 1977) 560 F.2d 925

Payne v. Govt. of Dist. Columbia

(D.C. Cir. 1977) 559 F.2a 809

Roane v. Callisburg Ind. Sch. Dist.

(Sth Cir. 1975) 511 F.2d 633

Rotolo v. Borough of Charleroi

(3rd Cir. 1976) 532 F.2d 20

Weathers v. West Yuma Co. Sch.

Dist. R-J-l (D.Colo. 1974)

387 F.Supp. 552, aff'd 530

F.2d 1335 (10th Cir. 1976)

Williams v. Howard Univ. (D.C. Cir.

1976) 528 F.2d 658

iv.

10

10

10

ll

10

MB me

Statutes Page

248 U.8.C. § i1254(1) 2

a0-U.8.Cs @ 33an 2, BS» 9

42 U.8.C. § 1983 3, 4

Constitution

United States Constitution

Fourth Amendment a, ©

Fifth Amendment 4, 6

Eighth Amendment 4, 6

Fourteenth Amendment

Texts

"Of Rights and Remedies: The Consti-

tution as a Sword," 85 Harvard

Law Review 1532 12

"Damage Remedies Against Munici-

palities for Constitutional

Violations 89 Harvard Law

Review 922 12

+ oe

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

DOMINGA ROQUE MOLINA,

Petitioner,

vs.

PAUL T. RICHARDSON, JOHN H.

GIBSON and THE CITY OF

LOS ANGELES

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INTRODUCTION

The petitioner DOMINGO ROQUE MOLINA,

respectfully prays that a writ of certi-

Orari issue to review the judgment and

opinion of the United States Court of Ap-

peals for the Ninth Circuit, entered in

this proceeding on July 21, 1978, affirn-

ing the dismissal of the City of Los

Angeles by the United States District

Court for the Central District of

California.

OPINIONS BELOW

The opinion of the Court of Appeals'

is reported at 578 F.2d 846 and is appen-

ded hereto as Appendix A. No reported

opinion was rendered in the District Court

for the Central wistrict of California;

the order dismissing the City of Los

Angeles is set forth at Appendix B, infra.

JURISDICTION

The judgment of the Court of Appeals

respecting dismissal of the City of Los

Angeles was entered on July 21, 1978.

That portion of the judgment is final by

its terms. The jurisdiction of this

Court is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether 28 U.S.C. § 1331 provides

petitioner a cause of action for damages

against a municipality for violation of

his constitutional rights by its police

officers.

2. Whether the application of Bivens

to municipalities is constitutionally

mandated.

3. Whether Congress, by enacting 42

U.S.C. § 1983, has supplied the exclusive

remedy for constitutional violations com-

mitted under state authority.

4. Whether there were "special fac-

tors" in the instant case that precluded

the District Court from inferring a cause

of action directly from the Constitution

including:

(i) absence of affirmative entry

entry into the field by Congress;

(ii) federalism; or

(iii) the adequacy of the 42 U.S.C.

§ 1983 remedies.

5. Whether petitioner was required

expressly to allege that the police offi-

cers' illegal conduct represented the

municipality's official policy in order

to state a cause of action under 42

U.S.C. § 1983 in light of Monell.

CONSTITUTIONAL, STATUTORY, AND RULES

PROVISIONS INVOLVED

The Fourth Amendment to the Constitu-

tion of the United States provides in

pertinent part as follows:

De

>

"The right of the people to be

secure in their persons, ...

against unreasonable searches

and seizures shall not be vio-

lated."

The Fifth Amendment to the Constitu-

tion of the United States provides in

pertinent part as follows:

"No person shall ... be deprived

of life [or] liberty ... without

due process of law..."

The Fourteenth Amendment to the Con-

stitution of the United States provides

in pertinent part as follows:

"No State shall ... deprive any per-

son of life [or] liberty ... with-

out due process of law..."

The Eighth Amendment to the Consti-

tution of the United States provides in

pertinent part as follows:

"{(Neither] cruel [nor] unusual pun-

ishment shall be inflicted."

This case also involves 42 U.S.C.

§ 1983 which provides as follows:

"Every person who, under color of

any statute, ordinance, regulation,

custom, or usage, of any State or

territory, subjects, or causes to

be subjected, any citizen of the

United States or other person within

the jurisdiction thereof to the

4.

deprivation of any rights, privi-

leges, or immunities secured by

the Constitution and laws, shall

be liable to the party injured in

an action at law, suit in equity,

or other proper proceeding for

redress."

This case also involves 28 U.S.C.

§ 1331 which provides, in pertinent

part as follows:

"The district courts shall have

Original jurisdiction of all civil

actions wherein the matter in con-

troversy exceeds the sum or value

of $10,000, exclusive of interest

and costs, and arises under the

Constitution, laws, or treaties

of the United States."

STATEMENT OF THE CASE

On July 1, 1973, the petitioner was

stopped by two policemen while driving

his automobile in Los Angeles. The of-

ficers had noticed that the rear of pe-

titioner's car was damaged and that a cur-

rent registration tab was not attached

to the rear license plate. Petitioner

complied with their request to produce

the registration tab which he had inside

the car explaining that he intended to

attach it to the license plate after the

S.

1

damage to his vehicle was repaired. The

officers then asked to see his driver's

license. The petitioner then held up his

wallet displaying his license through a

clear plastic container, but he declined

to hand it over until his registration tab

was returned to him. Under California

law, the petitioner had the duty to dis-

play but not to deliver physical posses-

sion of the license. The police officers

thereupon forcibly removed petitioner

from his car, slugged him, karate chopped

him, handcuffed him and took him to the

police station where he was booked for re-

Sisting arrest. The prosecutor later re-

jected this booking and refused to file

any charges against petitioner. Peti-

tioner thereupon commenced this action in

the District Court seeking damages for

violation by the officers of his Fourth

Amendment right to be free from arrest

unless based upon probable cause, his

guarantee under the Fifth and Fourteenth

Amendments against deprivation of liberty

without due process of law, and his right

to be free from cruel and unusual punish-

ment under the Eighth Amendment. He also

asked for damages against the City of

6.

Los Angeles (the city), the officers’ em-

ployer. The city successfully moved to

dismiss the claim against it for failure

to state a cause of action. The case

against the officers proceeded to trial,

and a jury awarded petitioner $65.75 com-

pensatory damages against each of them.

The District Judge entered judgment on

the verdict. Petitioner sought review in

the Court of Appeals for the Ninth Cir-

cuit of, inter alia, dismissal of the city

from the action. The case was argued and

submitted, and on July 21, 1978 the Court

of Appeals affirmed (2-1) the dismissal

of the claim against the city.

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEALS HAS DECIDED

ON IMPORTANT QUESTIONS OF FEDERAL

LAW WHICH HAVE NOT BEEN BUT

SHOULD BE SETTLED BY THIS COURT

With this decision, all of the

Circuit Courts have now ruled on § 1331

jurisdiction: eight circuits have implied

a cause of action and three circuits have

refused to entertain such actions. Since

the Circuit Courts are in disarray, the

Ve

issue is ripe for clarification by this

Court.

The instant decision by the Court of

Appeals for the Ninth Circuit is in con-

flict with the decisions of the following

Courts of Appeal on the same matter:

Second Circuit:

Brault v. Town of Milton (2nd Cir.

1975) 527 F.2d 730, 734, rev'd.en banc

on other grounds 527 F.2d 736. See

also Fine v. City of New York (2nd

Cir. 1975) 529 F.2d 70; Gentile v.

Wallen (2nd Cir. 1977) 562 F.2d 193

(school board). Cf. Matherson v.

Long Island State Park Commission (2nd

Cir. 1971) 442 F.2d 566.

Third Circuit:

Bethea v. Reid (3rd Cir. 1971)

445 F.2d 1163, 1164-65. Cf. Rotolo v.

Borough of Charleroi (3rd Cir. 1976)

532 F.2d 920. Gagliardi v. Flint (3rd

Cir. 1977) 564 F.2d 112 (death case).

But see Mahone v. Waddle (3rd Cir.

1977) 564 F.2d 1018.

Fourth Circuit:

Cox v. Stanton, et al. (4th Cir.

P

net's

1975) 529 F.2d 47 (citing Brault

supra).

Fifth Circuit:

Roane v. Callisburg Independent

School District (5th Cir. 1975) 511

F.2d 633.

Sixth Circuit:

Hanna v. Drobnick (6th Cir. 1975)

514 F.2d 393; Muskegon Theatres, Inc.

v. City of Muskegon (6th Cir. 1974)

507 F.2d 199; Amen v. City of Dearborn

(6th Cir. 1976) 532 F.2d 554; City of

Cleveland v. Albaugh, No. 78-224, (6th

Cir. 1978) 577 F.2d 740, petition for

cert. filed August 8, 1978.

Seventh Circuit:

Calvin v. Conslick (7th Cir. 1975)

520 F.2d 1, 8-10; Hostrop v. Board of

Junior College District #515 (7th Cir.

1975) 523 F.2d 569. But see McDonald

v. State of Illinois (7th Cir. 1977)

557 F.2d 596 and Jamison v. McCurrie

(7th Cir. 197 ) 565 F.2d 483. See

also Fitzgerald v. Porter Memorial

Hospital (7th Cir. 1975) 523 F.2d 716,

cert den. 425 U.S. 916, 96 S.Ct. 1518,

9.

47 L.Ed.2d 768 (1976); Beard v. Rob-

inson (7th Cir. 1977) 563 F.2d 331

(death case).

Eighth Circuit:

See McNally v. Pulitzer Publish-

ing Company (8th Cir. 1976) 532 F.2d

69; Owen v. City of Independence,

Missouri (8th Cir. 1977) 560 F.2d

925 (but see note 9 at page 933).

District of Columbia:

District of Columbia v. Carter

(D.C. Cir. 1973) 409 U.S. 418, 433,

93 S.Ct. 602, 34 L.Ed.2d 613;

Williams v. Howard University (D.C.

Cir. 1976) 528 F.2d 658; Lewis v.

D.C. Department of Corrections (D.C.

Cir. 1976) 533 F.2d 710; Payne v.

Government of District of Columbia

D.C. Cir. 1977) 559 F.2d 809.

The instant decision is in accord

with only the decision of two circuits,

to wit:

First Circuit:

Kostka v. Hogg (lst Cir. 1977)

560 F.2d 37 and Comtronics Inc. v.

10.

Puerto Rico Tele. Co. (lst Cir. 1977)

553 F.2@ 761.

Tenth Circuit

Weathers v. West Yuma County

School District. R-J-l (D. Colo. 1974)

387 F.Supp. 552, aff'd 530 F.2d 1335

(10th Cir. 1976).

The time is ripe for this Court to

provide guidance to the appellate and

district courts and to litigants about

these important questions.

In Bivens v. Six Unknown Agents of

Federal Bureau of Narcotics 403 U.S. 388,

91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)

this Court inferred a remedy against fed-

eral officers directly under the Fourth

Amendment. Whether such a remedy existed

against municipalities has been recog-

nized by this Court as an important ques-

tion not yet presented to the Court.

Aldinger v. Howard 96 S.Ct. 2413, 2415

n. 3, 427 U.S. 1, 49 L.Ed.2€ 276 (1976)

But this Court has strongly implied that

such a remedy exists.

In City of Kenosha v. Bruno 412 U.S.

507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973)

liquor licenses had been denied renewals

il.

of their licenses apparently because of

nude dancing in their establishments. 93

They claimed they were denied their

Fourteenth Amendment due process rights

because they were not granted the required

adversary type hearing prior to denial of

their renewals. 93 S.Ct. at 2225. Ini-

tially, only two municipalities were de-

fendants. This Court remanded the § 1331

jurisdictional question to determine

whether there was at least $10,000 in

controversy. 93 S.Ct. at 2228.

The concurring opinion flatly states:

"If appellees can prove their alle-

gation that at least $10,000 is in

controversy, the § 1331 jurisdic-

tion is available. Bell v. Hood

327 U.S. 678, 66 S.Ct. 773, 90 L.Ed.

939 (1946); cf. Bivens v, Six Un-

known Agents of Federal Bureau of

Narcotics [supra] and [sic] they are

clearly antitted to relief." 93

S.Ct. at 2228. (emphasis added).

See "Of Rights and Remedies: The Con-

stitution as a Sword," 85 Harvard Law

Review 1532 et seq.; "Damage Remedies

Against Municipalities for Constitutional

Violations 89 Harvard Law Review 922et seq..

12.

CONCLUSION

It is respectfully submitted that

the petition for writ of certiorari

should be granted.

Respectfully submitted,

MICHAEL R. MITCHELL

Attorney for Petitioner

13.

APPENDIX A

Domingo Roque MOLINA,

Plaintiff-Appellant,

Vv.

Paul T. RICHARDSON and the

City of Los Angeles,

Defendant-Appellee.

No. 76-2810

United States Court of Appeals

Ninth Circuit.

July 21, 1978.

A civil rights action was instituted

against the city of Los Angeles and two

Los Angeles policemen. The United States

District Court for the Central District

of California, Malcolm M. Lucas, J.,

dismissed the claim against the city and

denied plaintiff attorney fees for his

successful action against the policemen,

and plaintiff appealed. The Court of

Appeals, Wallace, Circuit Judge, held

that: (1) dismissal of the claim against

the city was proper, and (2) the trial

judge had discretion to award attorney

fees.

Affirmed in part, vacated and re-

manded in part.

A-l.

Grant, District Judge, sitting by

designation, dissented and filed opinion.

1. CIVIL RIGHTS 13.8(3)

Where plaintiff, in his action against

city under Civil Rights Act of 1871, did

not argue that allegedly illegal conduct

of police officers could fairly be said

to represent city's official policy, city

was immune from suit. 42 U.S.C.A. § 1983.

2. FEDERAL COURTS 181

Federal district court had federal

question jurisdiction over suit against

city by individual who claimed that his

constitutional rights were violated dur-

ing his arrest by city police officers,

and fact that plaintiff recovered only

$65.75 compensatory damages against

each officer did not demonstrate to legal

certainty that $10,000 jurisdictional

amount could not have been recovered as

against officers' employer. 28 U.S.C.A.

§ 1331.

3. CIVIL RIGHTS 13.4(3)

Recognition of cause of action against

municipality under Fourteenth Amendment

and federal’ question statute on behalf of

person who was allegedly illegally ar-

rested by city policeman was not consti-

tutionally mandated, and prudential

considerations required that such cause

of action not be recognized. 42 U.S.C.A.

§ 19833; 28 U.8.C.A. § 13313 U.8.C.A.

Const. Amends. 4, 14, § 5; Civil Rights

Act of 1964, §§ 701 et seq., 70l(a,b) as

amended 42 U.S.C.A. §§ 2000e et seq.,

2000e(a,b).

4. CIVIL RIGHTS 13.17

Trial court had discretion, in civil

rights suit against city policemen for

alleged illegal arrest of plaintiff, to

award plaintiff attorney fees at both

trial and appellate level. 42 U.S.C.A.

§ 1988.

Michael R. Mitchell (argued), Los

Angeles, Cal., for plaintiff-appellant.

A-3.

Michael K. Fox, Deputy City Atty.

(argued), Los Angeles, Cal., for

defendant-appellee.

Appeal from the United States District

Court for the Central District of

California.

Before WRIGHT and WALLACE, Circuit

Judges, and GRANT,* District Judge

WALLACE, Circuit Judge:

Molina appeals from the judgment of

the district court dismissing his civil-

rights claim against the City of Los

Angeles for failure to state a claim upon

which relief can be granted and denying

him attorney's fees for his successful

action against two policemen employed by

the city. We affirm the dismissal of

the claim against the city and vacate and

remand the judgment with respect to the

denial of attorney's fees.

* Honorable Robert A. Grant, United

States District Judge, Northern Dis-

trict of Indiana, sitting by designation.

A-4.

I. THE FACTS

On July 1, 1973, Molina was stopped

by two policemen while driving his

automobile in Los Angeles. The officers

had noticed that the rear of Molina's

car was damaged and that a current re-

gistration tab was not attached to the

rear license plate. Molina complied

with their request to produce the re-

gistration tab which he had inside the

car, explaining that he intended to

attach it to the license plate after

the damage to his vehicle was repaired.

The officers then asked to see his

driver's license. Molina held up his

wallet, displaying his license through

a clear plastic container, cut he re-

fused to hand it over as directed. The

parties disagree as to whether the of-

ficers then told Molina to get out of

his car, but it is agreed that they

eventually removed him by force and,

after a struggle, handcuffed him and

took him to the police station where he

was booked for resisting arrest. The

prosecutor later refused to file any

charges against Molina.

A-5.

Molina, claiming physical injuries

resulted from the incident, commenced this

action in the district court seeking com-

pensatory and punitive damages for the

alleged violation by the officers of his

Fourth Amendment right to be free from

arrest unless based upon probable cause,

his guarantee under the Fifth and Four-

teenth Amendments against deprivation of

liberty without due process of law, and

his right to be free from cruel and un-

usual punishment under the Eighth Amen-

ment. He also asked for damages against

the City of Los Angeles (the city), the

officers’ employer, under the principle

of respondeat superior. The city success-

fully moved to dismiss the claim against

it for failure to state a cause of action.

The case against the officers proceeded

to trial, and a jury awarded Molina $65.75

compensatory damages against each of them.

The district judge entered judgment on

the verdict, but denied Molina's petition

for attorney's fees. Molina appeals from

the dismissal of the city from the action

and from the refusal to award him

attorney's fees.

~

II. THE DISMISSAL OF THE CITY

[1] The primary issue on appeal is

whether the district judge properly dis-

missed the city from this action. Al-

though his cause of action against the

individual officers was based, in part,

on 42 U.S.C. § 1983,2/ Molina conceded

on appeal that this statute gives him

no right of action against the city

because of the holding in Monroe v. Pape,

365 U.S. 167, 187-92, 81 S.Ct. 473, 5

L.Ed.2d 492 (1961), that a municipality

is not a "person" within the meaning of

section 1983. In spite of the interven-

ing decision in Monell v. Department of

Social Services, U.S. _, 98 S.Ct. 2018,

56 L.Ed.2d 611 (1978), which overruled

Monroe in part, this concession by Molina

is still appropriate.

1/ Section 1983 provides:

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory,

subjects, or causes to be subjected, any

citizen of the United States or other

person within the jurisdiction thereof to

the deprivation of any rights, privileges,

or immunities secured by the Constitution

and laws, shall be liable to the party in-

jured in an action at law, suit in equity,

or other proper proceeding for redress.

A-7.

Monell disapproved of the broad hold- Molina's complaint sought recovery

ing Monroe that "local governments are against the city solely "by virtue of

wholly immune from suit under § 1983,"

id. U.S. at_, 98 S.Ct. at 2022 (foot-

note omitted), as inconsistent with the

{the employment] relationship" between

the city and the police officers. Al-

though it is conceded that the officers

intent of Congress when it enacted that were acting in their official capacities

statute. But Monell reaffirmed Monroe

to the extent it decided

that a municipality cannot be

when they stopped Molina and questioned

him, Molina did not argue before the

district court that the allegedly illegal

held liable solely because it conduct of the officers "may fairly be

employs a tortfeasor--or, in said to represent [the city's] official

other words, a municipality policy." Thus, Monell does not give

cannot be held liable under Molina a section 1983 cause of action

§ 1983 on a respondeat

against the city.

superior theory.

Molina asserts, however, that juris-

. . . , ; diction over the city exists under 28

U.S.C. § 1331,2/ the general "federal

question" jurisdiction statute, and that

. - - Instead, it is when exe-

cution of a government's policy

or custom, whether made by its a cause of action for vicarious liability

lawmakers or by those whose against the city may be inferred directly

edicts or acts may fairly be from the text of the Fourteenth Amendment.

said to represent official policy,

inflicts the injury that the 2/ Section 1331 provides, in part:

government as an entity is res- The district courts shall have origi-

: nal jurisdiction of all civil actions

ponsible under § 1983. wherein the matter in controversy exceeds

Id. at ° , 98 S.Ct. at 2036, 2038 the sum or value of $10,000, exclusive of

La cay interest and costs, and arises under the

Constitution, laws, or treaties of the

United States.

(emphasis in original).

A-8. A-9.

We are thus called upon to decide a ques-

tion on which the federal courts are

divided: whether the decision in Bivens

v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388, 91

S.Ct. 1999, 29 L.Ed.2d 619 (1971), should

be extended to provide a cause of action

for damages against a municipality for

the violation of a citizen's constitu-

tional rights by police officers.2/

In Bivens, the plaintiff had been the

victim of police misconduct not dissimi-

lar to that alleged by Molina in this

case. After having been manacled, ar-

rested, and taken into custody in viola-

tion of the Fourth Amendment, Bivens was

released and no charges were brought

against him. Neither section 1983 nor

3/ The lower federal court decisions and

other sources cited hereafter were,

of course, authored prior to Monell v.

Department of Social Services, _U.S.__,

98 S.Ct. 2018, 56 L.Ed.2d 611 (1978),

which is discussed in the previous text.

Despite the fact that they do not take

account of Monell, however, we find their

analyses helpful with respect to the

question presented by this case, which

Monell leaves untouched: whether the

Bivens rationale can supply the respon-

deat superior liability against a munici-

pality that section 1983 does not provide.

A-10.

any other federal statute provided a

remedy to Bivens, and rather than leave

him to rely upon state tort remedies

whose protection might not be co-exten-

sive with that of the Fourth Amendment,

the Court exercised its judicial power

to infer a remedy directly from the text

of the amendment itself.

Because the city is not vicariously

liable under section 1983 for the alleged

violation of Molina's Fourth, Fifth,

Eighth, and Fourteenth Amendment rights,

he would have us supply a substitute

remedy by extending the Bivens doctrine

to create such liability against the city

directly under the Fourtheenth Amendment .4/

We conclude that it would be inappropriate

for us to do so.

4/ The protections of the Fourth Amend~

ment are effective against the states

through the Fourteenth, Mapp v. Ohio, 367

U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d

1081 (1961), as is the Eighth Amendment's

guarantee against cruel and unusual pun-

ishment, Gideon v. Wainwright, 372 U.S.

335, 341-42, 83 S.Ct. 792, 9 L.Ed.2d 799

(1963); Robinson v. California, 370 U.S.

660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758

(1962). The Fifth Amendment's prohibition

against deprivations of liberty without

due process of law is, of course, repeated

in the text of the Fourteenth Amendment

itself.

A-ll.

A. Jurisdiction

[2] We are not in doubt about federal

jurisdiction in this case. As early as

1946 the Supreme Court decided that fed-

eral question jurisdiction exists for

claims urging a cause of action based

directly on the Constitution. Bell v.

Hood, 327 U.S. 678, 66 S.Ct. 773, 90

L.Ed. 939 (1946). As did the plaintiff

in Bell, Molina seeks recovery "squarely

on the ground" that specific constitu-

tional guarantees have been violated.

Id. at 681, 66 S.Ct. 773. The recent

decision in City of Kenosha v. Bruno,

412 U.S. 507, 93 S.C t 2222, 37 L.Ed.2d

109 (1973), suggests that the Surpeme

Court sees no obstacle to federal juris-

diction in Bivens actions against

5/

municipalities.—

5/ In Bruno, decided prior to Monell,

~ the Supreme Court followed Monroe

by refusing to allow a section 1983

action seeking injunctive relief against

a municipality. The Court remanded, how-

ever for consideration of whether the

$10,000 required by section 1331 was in

controversy. 412 U.S. at 514, 93 S.Ct.

2222. From this it may be inferred that

section 1331 jurisdiction--in the Bell v.

Hood sense-- would exist were the juris-

dictional amount requirement satisfied.

(continued)

A-12.

The city contends that jurisdiction

is lacking because the requisite $10,000

jurisdictional amount of section 1331 is

not in controversy. We disagree. The

5/ (continued)

See, e.g., Dahl v. City of Palo Alto,

372 F.Supp. 647, 650 (N.D.Cal.1974). To

the extent it relies on Monroe's total

exclusion of municipalities from section

1983 liability, of course, Bruno's hoild-

ing that injunctive relief against a city

cannot be founded on section 1983 does

not survive Monell. Bruno's significance

for this case, however, lies in its im-

plicit recognition that even if a muni-

cipality cannot be held liable for cer-

tain conduct under section 1983, federal

guestion jurisdiction may nevertheless

exist over a cause of action arising out

of the same facts but based on some

source other than section 1983. We find

nothing in Monell that undermines that

aspect of Bruno.

However, if the Surpeme Court should

ultimately decide that Bivens-type action

for vicarious liability does not lie

against municipalities, then the juris-

diction of a federal court over a case

asserting such a cause of action might

thereby be defeated since the claim could

be said to be "wholly insubstantial and

frivolous," Bell v. Hood, 327 U.S. 678,

682-83, 66 S.Ct. 773, 90 L.Ed. 939 (1946);

accord, Hagans v. Lavine, 415 U.S. 528,

936-38, 94 S.Ct. 1372, 39 L.Ed.2d 577

(1974), and thus not to present a genuine

question arising under the Constitution.

A-13.

test for determining whether the juris-

dictional amount is in controversy is

liberally tilted in favor of plaintiffs:

[T]he sum claimed by the plain-

tiff controls if the claim is

apparently made in good faith.

It must appear to a legal cer-

tainty that the claim is really

for less than the jurisdictional

amount to justify dismissal.

The inability of plaintiff to

recover an amount adequate to

give the court jurisdiction does

not show his bad faith or oust

the jurisdiction.

St. Paul Mercury Indemnity Co. v. Red

Cab Co., 303 U.S. 283, 288-89, 58

S.Ct. 586, 590, 82 L.Ed. 845 (1938)

(footnotes omitted); accord, Mt.

Healthy City Bd. of Educ. v. Doyle,

429 U.S. 274, 276, 97 S.Ct. 568, 50

L.Ed.2d 471 (1977).

The city argues that the small re-

covery against the officers demonstrates

to a "legal certainty" that Molina could

not have recovered $10,000 against their

employer, since the city could not be

A-14.

liable for more than were its agents.

But the city has not demonstrated or

even alleged that when the trial began

such a small recovery was inevitable,

and it is "at the time of suit," id.

at 277, 97 S.Ct. 568, that the detee~

mination of the amount in controversy

is made. See 1 Moore's Fed.Practice

40.91[3], at 850-51.9/

B. The Cause of Action

[3] While the federal court has

jurisdiction, it is another matter

whether Molina's complaint states a

claim upon which relief can be granted.

As Bell made clear, the existence of a

cause of action is conceptually dis-

tinct from the presence of jurisdic-

tion,’ 327 U.S. at 682, 66 S.Ct. 773,

6/ We do not approve of the fact that

the city raises its jurisdictional

amount argument for the first time on

appeal. But since this issue goes to

the subject matter jurisdiction of the

court, we are constrained to address it.

i/ Thus, cases holding that section

1331 jurisdiction exists for actions

brought directly under the Constitution,

(continued)

A-15.

and it is to the question whether Molina

has cause of action against the city that

we now turn.

1. The extension of Brivens to munici-

palities is not constitutionally

mandated.

The first step in deciding whether

Molina has a Bivens action against the

city is to determine whether that result

is constitutionally required. We con-

clude that it is not.

7/ see City of Kenosha v. Bruno, 412 U.S.

507, 514, 93 S.Ct. 2222, 37 L.Ed. 2d

109 (1973); Gray v. Union County Intermed.

Educ. Dist., 520 F.2d 803, 805 (9th Cir.

1975); Miller v. County of Los Angeles,

341 F.2d 964, 966 (9th Cir. 1965), are not

authority for the proposition that a cause

of action must also be recognized. Molina

and the American Civil Liberties Union as

amicus curiae argue that Bruno suggests

an implicit extension of the Bivens cause

of action to municipalities. But in spite

of Justice Brennan's concurrence in sup-

port of that proposition, 412 U.S. at 516,

93 S.Ct. 2222, the majority in Bruno did

no more than imply that federal question

jurisdiction might exist. See n.5 supra;

Comment, Implying a Damage Remedy Against

Municipalities Directly Under the Four-

teenth Amendment: Congressional Action

as an Obstacle to Extension of the Bivens

Doctrine, 36MG@L.Rev. 123, 151 (1976)

{hereinafter referred to as Congressional

Action). ~

A-16.

The majority in Bivens strongly im-

plied that specific congressional action

might have precluded the judicial crea-

tion of a damages remedy in that case.

403 U.S. at 397, 91 S.Ct. 1999. Such

preclusion would not be permissible, of

course, were the Bivens result a consti-

tutional necessity. If the Constitution

did not compel the result in Bivens,

neither does it compel the extension of

the doctrine of that case to municipal-

ities. Even those who advocate that

extension concede that this is so. E.g.,

Note, Damage Remedies Against Munici-

palities For Constitutional Violations,

89 Harv.L.Rev. 922, 935-39 (1976).

Since we are not required to allow

Molina his cause of action against the

city, the question becomes whether we

should do so. Specifically, the issue is

whether the difference between this case

and Bivens either precludes or counsels

against the exercise of our judicial dis-

cretion to provide a damages remedy to

redress any constitutional violation that

may have been caused by the city.

A-17.

i ——“(“‘“(C*‘C lll

2. Prudential considerations as an

obstacle to the extension of Bivens

to municipalities.

Two separate, though related, argu-

ments have been advanced against the

imposition of Bivens liability on muni-

Cipalities. The first, relying on the

implication in Bivens that congressional

action might have precluded the result

in that case, 403 U.S. at 397, 91 S.Ct.

1999, is that by enacting 42 U.S.C.

§ 1983 Congress has supplied the exclu-

sive remedy for constitutional violations

committed under color of state author-

8/

ity.— Thus, the argument goes, we would

8/ The basis for this view is the sug-

gestion in Bivens that "affirmative

action by Congress" might have dictated

another result, 403 U.S. at 396, 91 S.Ct.

1999, especially if that action were

read as a statement that victims of con-

stitutional violations should “be remit-

ted to another remedy, equally effective

in the view of Congress." Id. at 397,

91 S.Ct. at 2005, The argument, devel-

oped without the benefit of Monell's

narrowing of Monroe, is that section

1983 was a broad and sweeping legislative

implementation of the Fourteenth Amend-

ment, and that when Congress deliberately

excluded municipalities from liability

under this scheme, it, "[i]n one sense of

A-18.

i

4

be precluded from extending Bivens to

municipalities. While we recognize the

8/ (continued) the term, ...

preempted the field against judicial

implication of such a remedy." Perry v.

Linke, 394 F.Supp. 323, 326 (N.D. Ohio

1974) Accord, Raffety v. Prince George's

County, 423 F.Supp. 1045, 1057-58 (D.Md.

1976); Pitrone v. Mercadante, 420 F.Supp.

1384, 1388-91 (E.D.Pa. 1976). Adherents

of this view read such pre-Monell deci-

sions of the Supreme Court as Aldinger v.

Howard, 427 U.S. 1, 96 S.Ct. 2413, 49

L.Ed.2d 276 (1976); City of Kenosha v.

Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37

L.Ed.2d 109 (1973); Moor v. County of

Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36

L.Ed.2d 596 (1973), and Monroe v. Pape,

365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492

(1961), as confirming their conclusion

that Congress has indeed clearly expressed

its wish that municipalities be immune

from civil rights actions. Kostka v.

Hogg, 560 F.2d 37, 42-44 (lst Cir. 1977);

Pitrone v. Mercadante, supra 420 F.Supp.

at 1389-90. They point out that the

predecessor to section 1331 was enacted

only a few years after section 1983, and

they do not believe Congress intended to

allow with the later statute what it had

expressly declined to permit with the

earlier. See Smetanka v. Borough of

Ambridge, 378 F.Supp. 1366, 1378 (W.D.

Pa.1974)

Those who take the opposite position

have argued, also unaided by Monell, that

the legislative history of section 1983

is entirely distinct from that of section

(continued)

A-19.

logic and persuasive reasoning of this

position, we find it unnecessary to de-

cide whether to adopt it because we be-

lieve the issue is more than adequately

resolved by the second argument: that

8/ (continued) 1331, and Congress'

decision not to include municipa-

lities within the scope of the former

statute should not be read to create a

general municipal immunity from actions

to redress constitutional violations.

They also point out that the $10,000

amount-in-controversy requirement of

section 1331 would prevent Bivens-type

actions jurisdictionally based on that

section from totally circumventing the

municipality exclusion of section 1983

which requires no minimum amount in

controversy. Brault v. Town of Milton,

927 F.2d 730, 734-35 (2d Cir. 1975),

rev'd on other grounds, id. at 736 (en

banc); Dahl v. City of Palo Alto, supra,

372 F.Supp. at 650-51. See also

Williams v. Brown, 398 F.Supp. 155, 159

(N.D.I11.1975). They contend that only

if Congress clearly and explicitly so

states should a statute implementing

constitutional rights be read to exclude

complementary judicial remedies, and that

neither section 1983 nor Supreme Court

interpretations of its exclusion of muni-

Cipalities provides such a statement.

Crosley v. Davis, 426 F.Supp. 398, 394-

95 (E.D.Pa.1977). Accord, Note, Damage

Remedies Against Municipalities For Con-

stitutional Violations, 89 Harv.L.Rev.

922, 939-45 (1976); Congressional Action

Supra, 36 Md.L.Rev. 123, 140-42 (1976).

A-20.

it would be an unwise use of judicial

power to accede to the demanded extension.

The Court in Bivens acknowledged that

there might be "special factors counsel-

ling hesitation" when the courts infer

a cause of action directly from the Con-

stitution "in the absence of affirmative

action by Congress."2/ 403 U.S. at 396,

91 S.Ct. at 2005. We find several such

factors in this case.

a. Respect for the proper role of

Congress.

What kept the Bivens dissenters from

jOining with the rest of the Court was

also a major cautionary signal to both

Mr. Justice Harlan and the majority. All

recognized that the implementation of

9/ A similar, though more precisely

~ stated, concept is offered by Mr.

Justice Harlan in his concurrence wherein

he reformulates the question to be "wheth-

er compensatory relief is 'necessary' or

‘appropriate’ to the vindication of the

interest asserted." 403 U.S. at 407, 91

S.Ct. at 2010. Some courts have found

analysis of the Bivens doctrine more

manageable in Mr. Justice Harlan's terms

than in those of the majority. E.g.,

Crosley v. Davis, supra, 426 F.Supp. at

394-97.

A-21

constitutional guarantees is primarily a

legislative task, as contrasted with the

interpretive responsibilities of the

judiciary. See Comment, Implying a

Damage Remedy Against Municipalities

Directly Under the Fourteenth Amendment:

Congressional Action as an Obstacle to

Extension of the Bivens Doctrine, 36

Md.L.Rev. 123, 145-46 (1976) [hereinafter

referred to as Congressional Action].

The majority in Bivens, however, found no

legislative scheme implementing the

Fourth Amendment by allowing recovery

against federal officers for their con-

stitutional violations. 22/ The Court

thus found itself in a field into which

Congress had not entered, and in that

setting felt free to provide an appro-

priate remedy.

10/ Section 1983, of course, applies only

~~ to actions grounded in state author-

ity, and th Federal Tort Claims Act was

not amended to cover such intentional

torts as were involved in Bivens until

1974. Act of March 16, 1974, Pub.L. 93-

253, § 2, 88 Stat. 50, amending 28 U.S.C.

§ 2680(h).

Mitte >. natedh hips Be md 4%

a

Although Congress may have been rela-

tively inactive in legislative protection

for constitutional violations by federal

officers, it has moved rather spectacu-

larly into the parallel field involving

state action. This is illustrated not

Only by section 1983 and other 19th

Century civil-rights statutes, but also

by such complex and comprehensive legis-

lation as the Civil Rights Act of 1964

and its subsequent amendments.

In spite of its active awareness of

its power to enforce the Fourteenth Amend-

ment against state and local governments,

however, Congress has deliberately chosen

to exclude vicarious liability against

municipalities from the scope of section

1983,2)/ Indeed, even after Monroe held

that municipalities were totally protected

from section 1983 liability, Congress

resisted attempts to counter the effects

of that decision by amending the statute,

see Mahone v. Waddle, 564 F.2d 1018, 1059-

60 (3d Cir. 1977) (Garth, J., dissenting

and concurring), choosing instead to

11/ Monell v. Department of Soc. Serv.,

supra, U.S. at _, 98 S.Ct. 2018.

A-23.

proceed more cautiously in the field of

municipal liability. 22/ Surely it is

appropriate for the federal judiciary to

respect that considered legislative reti-

cence.

This is especially so in light of the

distinct enforcement roles of Congress

under the terms of the Fourth and Four-

teenth Amendments, — 5 of the

a2

Fourteenth Amendment— appears to anti-

cipate a central role for Congress in

implementing the amendment's guarantees.

An analogous provision is not found in

the Fourth Amendment, the basis of the

remedy in Bivens. See id. at 1059 (Garth,

J., dissenting and concurring); Raffety v.

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

1058 (D.Md.1976); Congressional Action,

12/ In 1972, for example, municipalities

~ were subject to liability for some

civil rights violations from which they

had previously been exempted under the

Civil Rights Act of 1964. ‘Equal Employ-

ment Opportunity Act of 1972, Pub.L. No.

92-261, § 2(1),(2), 86 Stat. 103, 42

U.S.C. § 2000e(a), (b)

13/ Section 5 provides: "The Congress

~ ghall have power to enforce, by

appropriate legislation, the provisions

of this article."

A-24 *

poe ee

————_eV

Supra, 36 Md.L.Rev. at 146-47. We be-

lieve section 5 of the Fourteenth Amend-

ment counsels an especially heightened

sensitivity to the traditional role of

Congress in implementing constitutional

principles through the legislative pro-

cess. In dealing with the Fourteenth

Amendment, we would show inadequate

deference to that role were we to use the

courts to accomplish what the legislature

has legitimately refused to do.

b. Federalism.

Another consideration which cautions

against the extension of the Bivens doc-

trine to municipalities pertains to fed-

eralism. This factor, of course, was

totally absent in Bivens, where the ac-

tion was against United States government

officers only. But the competing inter-

ests of our federal system are directly

confronted when liability based upon the

Constitution is imposed upon subdivisions

of the states.

The authorization of tort actions

against the fisc is a delicate

matter, espeically when an

A-25.

instrumentality of the state is

concerned. .. . {Although the

Eleventh Amendment does not pro-

hibit such remedies against

municipalities], the values of

federalism embodied [in that

amendment] have similar force in

this context and, at the very

least, the creation of actions

against the treasuries of local

governm. nt bodies is a sensitive

political matter. In light of

these considerations and the deli-

berate exclusion . .. from § 1983

[of vicarious liability against

municipalities], the power of fed-

eral courts to make such entities

liable through a different means

should not lightly be inferred.

Kostka v. Hogg, 560 F.2d 37, 44 n.6 (lst

Cir. 1977). Accord, Farnsworth v. Orem

City, 421 F.Supp .830, 831 (D.Utah 1976) ;

Perzanowski v. Salvio, 369 F.Supp. 223,

230-31 (D.Conn. 1974). But see Congres-

sional Action, supra, 36 Md.L.Rev. at

143-45.

If the federal courts inject them-

selves too rapidly into disputes between

local governments and individual citizens,

the states and their political subdivi-

sions will likely be inhibited from seek-

ing creative, efficacious resolutions to

such disputes. This is no less true when

the controversy involves a federal

constitutional right.

The validity of this proposition is

aptly demonstrated by what has occurred

in California where Molina's deprivation

occurred. The Supreme Court of that

state has recently declared that public

employees are entitled to reimbursement

from their agency employers for nonpuni-

tive damages incurred in section 1983

actions, provided the employee was acting

within the scope of his authority.

Williams v. Horvath, 16 Cal.3d 834, 129

Cal.Rptr. 453, 548 P.2d 1125 (1976) (en

banc). Thus, with respect to actual

damages suffered, plaintiffs injured by

municipal employees, as was Molina, have

full access to the "deep pocket" of

California local governments through the

medium of a section 1983 action against

the offending officials. Such state-

A-27.

|

ae

originated remedies which at once serve

the interests of federalism and guard

constitutional values would be less

likely to emerge if the federal judi-

ciary exercised insufficient restraint

when invited to produce its own solutions

to every perceived need to protect indi-

vidual rights against local government

action.

We do not decide that federalism con-

cerns strictly preclude the extension of

vicarious liability against municipali-

ties under the Bivens rationale. But we

are convinced that those concerns are

sufficiently implicated in constitutional

torts against local governments that the

creation of such causes of action by the

federal judicary is not in the interests

of a sound federal equilibrium.

c. The adequacy of section 1983.

A primary concern of the majority in

Bivens was that unless the Court allowed

a cause of action directly under the

Constitution, the plaintiff would be left

to his state remedies which might "be

inconsistent [with] or even hostile" to

the interests protected by the Fourth

A-28.

Amendment. 403 U.S. at 394, 91 S.Ct.

1999. There was no federal statute pur-

suant to which Bivens could sue. Molina

faces no such predicament, for section

1983, a remedy incorporating by reference

the protections of the Constitution it-

self, is available to him. Indeed, he

recovered against the defendant police

officers in this case under that very

statute. Thus, Molina who had a statu-

tory cause of action directly under the

Constitution, was manifestly ina dif-

ferent position than was Webster Bivens.

See Crosley v. Davis, 426 F.Supp. 389,

395 (E.D.Pa. 1977); Livingood v. Town-

send, 422 F.Supp. 24, 27 (D.Minn.1976) ;

Pitrone v. Mercadante, 420 F.Supp. 1384,

1389 (D.E.Pa. 1976).

Those advocating the extension of

Bivens to municipalities make much of

the argument that a remedy against indi-

vidual officers alone may be inadequate

since juries might hesitate to impose

liability upon officers who, apparently,

were acting in good faith, and since

such defendants are often judgment proof

anyway. They also assert that remedies

directly against municipalities may more

A-29.

effectively deter future wrongdoing than

do lawsuits against the lower level em-

ployees who actually perpetrate the wrong.

We are not persuaded. We find it

significant that Bivens simply does not

assist as a logical springboard for the

extension suggested. There, the recovery

was against the individual federal of-

ficer involved, and not against their

"deep-pocketed" employer, the United

States. Thus, the true analogue to

Bivens liability for wrongs committed by

agents of a municipality is precisely

that provided by section 1983. Further,

neither Molina nor the amicus in this

case has demonstrated to us "that section

1983 plaintiffs are not being justly com-

pensated for violations of their consti-

tutional rights under color of state

authority." Clipper v. Takoma Park, No.

73-295-B, slip op. at 24 (D.Md. March 25,

1975). Indeed, as stated earlier,

California public employees are entitled

to indemnification for compensatory dama-

ges judgments against them in federal

civil rights actions, Williams v. Horvath,

supra, 16 Cal.3d 834, 129 Cal.Rptr. 453,

A-30 °

548 P.2d 1125, and Molina has thus not

been faced with the prospect of insolvent

judgment debtors. Our response to the

concern about additional deterrent effect

and to the fear that jury sympathies

will unfairly favor defendants in section

1983 actions against individual officers

is that these factors are speculative at

best. We decline to premise major

judicial policymaking on such grounds.

d. Conclusion.

By declining to allow Molina's cause

of action against the city directly under

the Fourteenth Amendment, we do not deni-

grate the importance of the interests

protected by that amendment. We merely

conclude that the considerations discus-

sed above persuasively warn that creation

by the federal judiciary of certain

remedy to protect those interests is, in

14/

this case, inappropriate .— We stress

14/ We recognize that the propriety of

~~ allowing actions against municipali-

ties directly under the Constitution may

depend upon the specific right being pro-

tected. For example, even before Bivens

was decided, this court recognized the

(continued)

A-31l.

that if the remedy sought here is social-

ly desirable, nothing prevents the more

appropriate national, state, or local

institutions of government from supply-

ing it.

III. ATTORNEY'S FEES

[4] Without explanation, the dis-

trict judge denied the request of Molina's

counsel for attorney's fees against the

defendant officers when he entered judg-

ment on April 12, 1976. This occurred

between the Supreme Court's decision in

Alyeska Pipeline Serv. Co. v. Wilderness

Society, 421 U.S. 240, 95 S.Ct. 1612, 44

14/ possibility of an action against a

local government for the uncompensa-

ted taking of property for public use as

proscribed by the Fifth Amendment and

applied to the states through the Four-

teenth Amendment. Miller v. County of

Los Angeles, 341 F.2d 964 (9th Cir.

1965). See also, Jacobson v. Tahoe Reg.

Plan. Agency, 566 F.2d 1353 (9th Cir.

1977), cert. granted, sub nom. Lake

Country Estates, Inc. v. Tahoe Reg. Plan.

Agency, _U.S.__, 98 S.Ct. 2843, 56 L.Ed.

2d 784 (1978). The Fifth Amendment's

explicit requirement that compensation

be paid for such takings is, of course,

an important factor distinguishing such

actions from that proposed by Molina in

this case.

A-32.

L.Ed.2d 141 (1975), which generally dis-

approved of awards of attorney's fees to

prevailing parties in federal litigation

in the absence of statutory authority, and

the October 19, 1976, effective date of

the Civil Rights Attorney's Fees Award |

Act of 1976, Pub.L. No. 94-559, 90 Stat.

2641, amending 42 U.s.c. § 1988,22/ which

supplied just such authority. The dis-

trict judge may thus have believed he was

bound by Alyeska.

We have recently decided that the new

statute applied to cases pending on appeal.

appeal. Fountila v. Carter, 571 F.2d 487,

15/ Amended 42 U.S.C. § 1988 provides in

~ yelevant part:

In any action or proceeding to enforce

a provision of sections 1981, 1982,

1983, 1985, and 1986 of this title,

title IX of Public Law 92-318, or in

any civil action or proceeding by or

on behalf of the United States of

America, to enforce, or charging a

violation of, a provision of the

United States Internal Revenue Code,

or title VI of the Civil Rights Act

of 1964, the court, in its discretion,

may allow the prevailing party, other

than the United States, a reasonable

attorney's fee as part of the costs.

A-33.

496 (9th Cir. 1978); Stanford Daily v.

Zurcher, 550 F.2d 464, 466 (9th Cir.

1977), rev'd on other grounds, _U.S._,

98 S.Ct. 1970, 56 L.Ed.2d 525 (1978).

Molina's counsel is thus entitled to have

his petition reconsidered in light of

amended section 1988. We therefore va-

cate the denial of the petition for

attorney's fees and remand for further

consideration of that issue.

This does not imply, however, that

the district judge's decision to deny

attorney's fees in this case was neces-

sarily incorrect. The statute explicitly

places that decision within the discre-

tion of the trial judge, and he may well

decline to alter his original disposi-

tion. 29/

16/ Consideration of the attorney's fees

request should be undertaken in light

of the policy which Congress sought to

effectuate in enacting the statutory at-

torney's fees provision. See S.Rep. No.

94-1011, 94th Cong., 2d Sess. 3, re-

printed in [1976] U.S.Code Cong. & Admin.

News, p.5908. The court should also take

note of the policy announced in Schaeffer

v. San Diego Yellow Cabs, Inc., 462 F.2d

1002, 1008 (9th Cir. 1972), which states

that "the amount of the award should also

be proportionate to the extent the

(continued)

A-34.

AFFIRMED IN PART, VACATED AND REMANDED

IN PART.

GRANT, District Judge, dissenting:

I dissent from that portion of the

opinion in which the majority takes the

position that the extension of the Bivens

doctrine to allow a cause of action

against the city directly under the Four-

teenth Amendment is not constitutionally

required and, further, that as a matter

of judicial discretion in would not be

appropriate. While I would agree, (in

light of the holdings in several other

Circuits, see e.g., Gagliardi v. Flint,

564 F.2d 112 (3rd Cir. 1977); Calvin v.

Conlisk, 520 F.2d 1 (7th Cir. 1975);

Williams v. Brown, 398 F.Supp. 155 (N.D.

111.1975), and amidst strong indications

from the Supreme Court, City of Kenosha

v. Bruno, 412 U.S. 507, 93 S.Ct. 2222,

37 L.Ed.2d 109 (1973)), that the Bivens

16/ (continued) plaintiff prevails in

— the suit." See also Fountila v.

Carter, 571 F.2d 487, 495-96 (9th Cir.

1978); Kerr v. Screen Extras Guild, 526

F.2d 67, 69-70 (9th Cir. 1975), cert.

denied, 425 U.S. 951, 96 S.Ct. 1726, 48

L.Ed.2da 195 (1976); Pacific Coast v. Sun-

kist Growers, 526 F.2d 1196, 1210 (9th

Cir. 1975), cert. denied 425 U.S. 959,

96 S.Ct. 1941, 48 L.Ed.2d 204 (1976).

A-35.

result is not constitutionally required,

I cannot agree that it is inappropriate

to supply a remedy for the alleged vio-

lation of Molina's constitutional rights

directly under the Fourteenth Amendment.

I agree with the majority that the

recent decision by the Surpeme Court in

Monell v. Department of Social Services,

_ U.S. _, 98 S.Ct. 2018, 56 L.Ed.2d 611

(1978), does not give Plaintiff-Appellant

Molina a Section 1983 cause of action

against the city. However, I would point

out that, as I read Monell, a future

plaintiff in a similar situation as

Molina would certainly be entitled to

allege, and attempt to prove that the

given actions of a police officer were

more than the acts of an employee on a

respondeat superior basis and indeed that

they rose to the level of an "official

policy or custom" employed by the police

department as a whole. If sufficiently

proved, such a plaintiff, under Monell,

would have a direct cause of action

against the municipality 4s an entity

responsible under Section 1983.

While the majority takes note of the

often heard argument that enactment of

A-36.

42 U.S.C. § 1983 created the exclusive

remedy for constitutional violations com-

mitted under color of state authority,

the basis for their holding is that it

would be an unwise use of judicial power

to allow the extension of the Bivens

doctrine. The initial rationale for this

view is respect for the role of Congress

in the implementation of constitutional

guarantees. This argument hinges upon

the fact that in Bivens, the Surpeme

Court was effectuating a remedy in a

field untouched by Congress, while here,

Section 1983 and other statutory legis-

lation exists.

This position states noting more than

because of the fact that Section 1983

exists, the Congress itself has deter-

mined that municipalities should not be

liable directly under the Fourteenth

Amendment. The problem with this argu-

ment is that it goes directly against the

strong presumption that the courts should

always be kept open to redress alleged

violations of constitutional rights un-

less it can be said explicitly that

Congress in fact intended to close them.

See Hart & Wechsler, Hart and Wechsler's

A-37.

The Federal Courts and The Federal

System, 332, at 336 (2nd ed. 1973). This

policy of clear statement becomes even

more important when, as here, a remedy is

precluded upon the basis of ambiguous

statutory language. The language of Sec-

tion 1983 itself purports only to autho-

rize a cause of action against "every

person" who commits a constitutional

violation under color of state law. Not

until the Court construed the word "per-

son" in Monroe v. Pape, 365 U.S. 167, 81

S.Ct. 473, 5 L.Ed.2d 492 (1961), could it

even be said that Section 1983 did not

contemplate municipal liability. That

determination in Monroe rested upon the

intricacies of the Senate-passed Sherman

amendment which was dropped from the 1871

Act because of objections by the House.

Gagliardi v. Flint, 564 F.2d 112, 122-126

(3rd Cir. 1977). See also Note, Damage

Remedies Against Municipalities for

Constitutional Violations, 89 Harv.L.Rev.

922, 942-945 (1976). After the recent

decision in Monell v. Department of

Social Services, _US.._, 98 S.Ct. 2018,

56 L.Ed.2d 611 (1978), reversing that

analysis of the Court as it pertained to

A-38.

the Sherman amendment, an even stronger

argument can now be made that Congress

has not determined that municipalities

should not be liable under the Four-

teenth Amendment. While the legislative

history surrounding the 1871 Act might

still be relevant in ascertaining the

remedies that statute was intended to

create, it should not be taken as an

explicit indication from Congress that

courts should be precluded from creat-

ing a constitutional remedy in damages

against municipalities. Indeed, it

would seem to be an unwise use of judi-

cial power, and inconsistent with the

principles of clear statement, to extra-

polate from the tarnished analysis of

ambiguous statutory language in Monroe

and conclude that Congress has expli-

citly determined to preempt the field

of municipal liability when the result

seriously restricts the remedies avail-

able to a court in constitutional

adjudication.

The majority also argues that the

principles of federalism caution against

extension of the Bivens doctrine to

municipalities. The fear is that if

A-39.

federal courts inject themselves too

hastily, the state and local governments

will be inhibited from seeking resolu-

tions themselves. However, it would seem

to the writer that the threat of a

federal monetary claim against a munici-

pality would enhance rather than inhibit

the potential for resolution. It cannot

be denied that recognition of a federal

monetary claim might alter the operation

of municipal governments, but this should

not be objectionable to the extent such

changes reflect constitutional values.

It should also be noted that piece-

meal litigation will often be the result

if federalism requires that a plaintiff

be left with only his state monetary re-

medies against a municipality. Of course,

a litigant can always resort to his state

remedies. But, since the Surpeme Court

decision in Aldinger v. Howard, 427 U.S.

1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976),

pendent party jurisdiction is not avail-

able in a Section 1983 action to join a

municipality sued on a state claim. Thu

Thus, the litigant is faced with the

burden of a separate lawsuit against the

municipality, in addition to his Section

A-40.

1983 cause of action against the municipal

employee. Further, in light of the avail-

ability of equitable relief to enforce the

Fourteenth Amendment, it seems a contra-

diction to say that the dictates of feder-

alism must bar interference in local

affairs. One need only look to the in-

tricate plans imposed by the judiciary

in school desegregation cases such as

Swann v. Charlotte-Mecklenburg Bd. of

Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.

Ed.2d 554 (1971), to see that federalism

can tolerate intervention into local af-

fairs far beyond any threat created by

imposition of money damages.

Finally, the majority argues that

while, in Bivens, the Court was concerned

that without a cause of action directly

under the Constitution, the state reme-

dies left to Plaintiff Bivens might well

have been inadequate, here they contend

that Section 1983 is adequate and re-

lieves Molina of the predicament faced by

the plaintiff in Bivens. This writer can-

not conclude that the damage remedies

currently provided by Section 1983 for

the redress of important constitutional

rights can realistically be termed as

A-41

adequate. This view goes beyond the prob-

lems of identification of proper indi-

vidual defendants, their inability to pay

judgments, and jury sympathy toward

defendants perceived to be acting in good

faith. In the final analysis, the ade-

quacy of any remedy must be viewed in

terms of its deterrent effect. The remedy

currently allowed by Section 1983 does

little to deter the muricipality from

altering its unconstitutional actions.

On the other hand, with a cause of action

directly under the Constitution, a muni-

Cipality would seem to be pit to a simple

choice. It can either pay damages or

institute the changes necessary to elimi-

nate the constitutional deprivation.

The majority concludes that the use

of the federal judiciary to create a

remedy in this case is inappropriate. I

must respectfully disagree and conclude

that there can be no more appropriate

role for the judiciary than to insure that

the interests protected by the Fourteenth

Amendment are given their full meaning

and scope. As a result, I would reverse

the District Court's decision, find

A-42.

jurisdiction to exist under 28 U.S.C.

§ 1331, and infer a cause of action

against the city directly from the text

of the Fourteenth Amendment.

A-43.

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 73-2063-MML Date November 12,

1973

Title - Domingo Roque Molina -v- Paul T.

Richardson, et al.

DOCKET ENTRY

ENT PROCS: Hrg deft City of L.A.'s Mtn

to dsmss. Cnsl pres & mtn argd to Ct.

The Mtn is grntd. (MML)

PRESENT:

HON. MALCOLM M. LUCAS, JUDGE

Duane Hostetter Don Mehler

Deputy Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS:

Mitchael R. Mitchell

ATTORNEYS PRESENT FOR DEFENDANTS:

Thomas C. Hokinson for

Thomas M. Dempsey

PROCEEDINGS: HEARING: Defendant City of

Los Angeles' Motion to Dismiss.

Counsel are present and the motion is ar-

gued to the Court. The motion is Granted.

MINUTES FORM 11 Initials of Deputy

CIVIL - GEN Clerk dkh

D-M

B-l.