Petition — City of Los Angeles v. Adolph Lyons

Supreme Court brief1980

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“Suprema Court, Us 4

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f JUN 18 1980

IN THE ‘i

SUPREME COURT OF THE UNITED !SSARGHSK, JR, CLERR

FALL TERM, 1979

99-1995

THE CITY OF LOS ANGELES,

Petitioner,

vs.

ADOLPH LYONS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

BURT PINES

City Attorney of

Los Angeles

JOHN T. NEVILLE

Senior Assistant

City Attorney

S. THOMAS TODD

Deputy City

Attorney

1700 City Hall East

200 North Main Street

Los Angeles, CA 90012

(213) 485-3626

Counsel for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

FALL TERM, 1979

NO.

THE CITY OF LOS ANGELES,

Petitioner,

vs.

ADOLPH LYONS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

BURT PINES

City Attorney of

Los Angeles

JOHN T. NEVILLE

Senior Assistant

City Attorney

S. THOMAS TODD

Deputy City

Attorney

1700 City Hall East

200 North Main Street

Los Angeles, CA 90012

(213) 485-3626

Counsel for Petitioner

Petitioner, the City of Los

Angeles, respectfully prays that a Writ

of Certiorari issue to review the

judgment and opinion of the United

States Court of Appeals for the Ninth

Circuit.

QUESTIONS PRESENTED

1. Does respondent's complaint

state the requisite case or controversy

between respondent and petitioner?

2~ Does respondent's complaint

state an adequate basis for equitable

relief against a local governmental

entity?1/

1/7 The parties in the Court of Appeais

were the same as the parties here. The

caption of the case in the Court of

Appeals lists Doe Crupi, Doe Hills, Doe

Sandoval and Doe Lloyd as defendants-

appellees; however, they were not

involved in the issues presented to

that court and are not involved in the

issues presented to this Court.

= t«

CONTENTS

Page

Opinion Below 3

Jurisdiction 3

Constitutional Provision Involved 3

Statement of the Case 5

Reasons for Granting the Writ 11

Conclusion 28

Appendix: Opinion of the United

States Court of Appeals

for the Ninth Circuit

TABLE OF AUTHORITIES

Page

Constitutional Provision

U.S. Const. art. III, sec. 2 14

Cases Cited

O'Shea v. Littleton (1974)

U.5. 466, 04 S.Ct. 669,

38 L.Ed.2d 674 19,42

Rizzo v. Goode (1976)

ewe ’ 96 S.Ct. 598,

46 L.Ed.2d 561 10,15,20

OPINION BELOW

The opinion of the United States

Court of Appeals for the Ninth Circuit

is reported at 615 F.2d 1243. A copy

of the opinion is attached hereto as an

appendix.

JURISDICTION

The judgment of the United States

Court of Appeals for the Ninth Circuit

was entered on March 28, 1980. This

Court has jurisdiction pursuant to 28

U.S.C. section 1254, subdivision (1).

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution article

III, section 2, provides:

a "The judicial Power. shall

extend to all Cases, in Law

and Equity, arising under

this Constitution, the Laws

of the United States, and

Treaties made, or which shall

be made, under their

Authority;--to all Cases

affecting Ambassadors, other

public Ministers and Consuls;

--to all Cases of admiralty

and maritime Jurisdiction;--

to Controversies to which the

United States shall be a

Party;--to Controversies be-

tween two or more States;--

between a State and Citizens

of another State;--between

Citizens of different

States;--between Citizens of

the same State claiming Lands

under Grants of different

» 6 @

States, and between a State,

or the Citizens thereof, and

foreign States, Citizens or

Subjects."

STATEMENT OF THE CASE

On February 7, 1977, respondent

Adolph Lyons filed a complaint for

damages, injunction and declaratory

relief in the United States District

Court for the Central District of

California. The district court's

jurisdiction was invoked pursuant to 28

U.S.C. sections 1331 and 1343.

Respondent alleged that Los’ Angeles

police officers Crupi, Hills, Sandoval

and Lloyd, acting under color of state

law and within the course and scope of

their employment, stopped respondent

for a traffic violation and without

o» 8 «

provocation or justification applied a

"bar arm" or “carotid artery" control

hold around respondent's neck until he

was rendered unconscious, thereby

depriving him of specified consti-

tutional rights and causing him to

suffer damages in excess of $10,000.

Counts one through four of the

complaint involve respondent's claim

for damages. In count five, respondent

sought an injunction prohibiving the

City of Los Angeles and its officers,

agents, representatives and employees

from "authorizing, instructing, encour-

aging the use of or applying" the “bar

arm" and “carotid artery" control holds

"except in situations where the

proposed victim of said control

reasonably appears to be threatening

the immediate use of deadly force." He

alleged:

"18. The ‘Bar Arm Control' is

a means of either physical

defense or offense which is

applied by a right handed man

as follows: You stand behind

your victim. Place your

right arm around his. neck

positioning your forearm

directly in front of and

against the victim's adams

{sic] apple. Grasp your

right fist with your left

hand and pull backwards with

your right forearm and left

hand. This hold is designed

to cut-off the victim's air

supply and to render him

unconscious.

"19. The ‘Carotid Artery

Control' is a means of either

physical defense or offense

which is applied by a right

handed man as follows: You

stand behing [sic] your

victim. Place your right arm

around his neck positioning

the inside of your right

elbow directly in front of

and against the victim's

adam's apple. Grasp your

right fist with your left

hand, press your right fist

inward towards the victim's

neck and tighten and close

your right arm. This hold is

designed to’ cut-off the

victim's blood supply to his

brain and to render him

unconscious.

"20. Defendant City of Los

Angeles has in the past and

now does authorize, train and

» Be

encourage its police officers

to employ so-called ‘carotid

artery’ and ‘bar arm' con-

trols in situations where

they are threatened by far

less than deadly force."

In addition, respondent alleged that

Los Angeles police officers "regularly

and routinely apply these choke holds

in innumerable situations where they

are not threatened by the use of any

deadly force whatsoever"; use of these

holds “constitutes the use of deadly

force and threatens the victim thereof

with immediate severe bodily harm and

death"; use of these holds within the

previous five years had resulted in

"severe and permanent injuries to

numerous persons" and at least two

deaths; and petitioner City, by

"authorizing, instructing and encour-

= 9

aging the use of the foregoing holds,

when less than deadly force is

threatened," is threatening to deprive

respondent and "others similarly

Situated" of specified constitutional

rights, and to cause respondent and

"others similarly situated" irreparable

injury.

In count six, respondent sought a4

declaratory judgment that police use of

the "bar arm" and "carotid artery”

control holds on a person who is not

threatening immediate use of deadly

force is a violation of specified

constitutional rights.

Petitioner filed its answer to the

complaint on April 21, 1977, and

promptly moved for partial judgment on

the pleadings, citing this Court's

decisions in Rizzo v. Goode (1976) 423

U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561,

@ 10 «

and O'Shea v. Littleton (1974) 414 U.S.

488, 94 S.Ct. 669, 38 L.Ed.2d 674. The

motion was granted and judgment in

favor of petitioner in regard to counts

five and six was entered on May 19,

1977. Respondent appealed, and on

March 28, 1980, the Court of Appeals

reversed.

REASONS FOR GRANTING THE WRIT

This Court should grant a Writ of

Certiorari because the Court of Appeals

"has decided a federal question in a

way in conflict with applicable

decisions of this court." (U.S.Sup.Ct.

Rule 19, subd. (1) (b).)

-11- ——-

Respondent's Complaint Does

Not State the Requisite

Case or Controversy Between

Respondent and Petitioner.

In O'Shea v. Littleton (1974) 414

U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674,

19 citizens of Cairo, Illinois sought

injunctive relief against a local

magistrate and circuit court judge who

allegedly deprived members of the class

these citizens represented of their

constitutional rights while carrying

out judicial duties. This Court

reasoned:

"Apparently, the proposition

is that if respondents

proceed to violate an un-

challenged law and if they

are charged, held to answer,

and tried in any proceedings

before petitioners, they will

- 12 =

be subjected to the discrim-

inatory practices that peti-

tioners are alleged to have

followed. But it seems to us

that attempting to anticipate

whether and when these

respondents will be charged

with crime and will be made

to appear before either

petitioner takes us into the

area of speculation and

conjecture. . . . Accepting

that [respondents] are deeply

involved in a program to

eliminate racial discrim-

ination in Cairo and that

tensions are high, we are

nonetheless unable to

conclude that the case-or-

controversy requirement is

satisfied by general asser-

- 13 -

tions or inferences that in

the course of their

activities respondents will

be prosecuted for violating

valid criminal laws. We

assume that respondents will

conduct their activities

within the law and so avoid

prosecution and conviction as

well as exposure to the

challenged course of conduct

said to be followed by

petitioners." (414 U.S. at

497, 94 S.Ct. at 676-77, 38

L.Ed.2d at 684; emphasis in

original.)

This Court held that the threat of

injury from the alleged course of

conduct attacked by respondents was too

remote to satisfy the case-or-

controversy requirement of Article III

=» 18 «

of the Constituticn.

In Rizzo v. Goode (1976) 423 U.S.

362, 96 S.Ct. 598, 46 L.Ed.2d 561, a

Class action seeking equitable relief

against officials of the City of

Philadelphia based on an allegedly

pervasive pattern of police

mistreatment of minority citizens in

particular and all citizens in general,

this Court held that the individual

respondents lacked the requisite

personal stake in the outcome to have a

case or controversy within the meaning

of Article III.

"(T]he individual respon-

dents’ claim to ‘real and

immediate’ injury rests not

upon what the named

petitioners might do to them

in the future--such as set a

bond on the basis of race--

- 15 «

but upon what one of a small,

unnamed minority of policemen

might do to them in the

future because of that

unknown policeman's per-

ception of departmental dis-

ciplinary procedures. This

hypothesis is even more

attenuated than those alle-

gations found insufficient in

O'Shea to warrant invocation

of federal jurisdiction."

(923 U.B. && 372, 96 8.Ce. at

605, 46 L.Ed.2d at 570.)

The Court of Appeals in this case

attempted to distinguish O'Shea and

Rizzo, as follows:

"But in this case, the threat

of future injury to not only

Lyons, but to every citizen

in the area is much more

= 16 =

immediate. To be subject to

these strangleholds, a citi-

zen need only be stopped for

a minor traffic violation

while driving an automobile,

as shown by the alleged facts

in this case. The use of

these strangleholds is accep-

ted police practice, even in

non life-threatening situa-

tions. It is not farfetched

to suggest that especially in

a city like Los Angeles,

where many motorists drive

long distances daily, the

chances of being stopped by a

policeman for an alleged

motor vehicle violation are

fairly good. Certainly the

odds of having that sort of

encounter are much greater

-17-@-

than the odds of having the

sort of encounters described

in O'Shea or in Rizzo, and

therefore meet the consti-

tutional requirements of

‘case’ or ‘controversy.'"

(615 F.2d at 1246-47.)

The attempt fails. The "odds" of

encountering the police in Los Angeles

is not the relevant consideration.

While respondent alleges in his

complaint that one of the control holds

in question was used on him in the

absence of resistance or threat on his

part, he does not allege that this is

the normal police practice. Instead,

his claim for injunctive relief asserts

that these control holds are used by

police officers who "are not threatened

by the use of any deadly force

whatsoever" (emphasis added), not the

= 18 «

use of no force whatsoever. So it is

the citizen who threatens an officer

with the use of force, albeit not

necessarily deadly force, who is

allegedly subject to the holds, not

every citizen who merely comes’ into

contact with the police. This case is

indistinguishable from O'Shea, where

this Court "assume[d] that respondents

will conduct their activities within

the law and so avoid... exposure to

the challenged course of conduct said

to be fcllowed by petitioners" (414

U.S. at 4897, 98 8.CE. at 677, 3

L.Ed.2d at 684). The threat of injury

to respondent and "others’ similarly

Situated" is at least as remote as it

was in O'Shea and does not satisfy the

case~or-controversy requirement.

a 49 «

Respondent's Complaint Does

Not State an Adequate Basis

for Equitable Relief Against

a Local Governmental Entity.

In Rizzo _v. Goode, supra, this

Court held that the scope of federal

equity power does not extend to

ordering city officials to submit for

the district court's approval a program

for improving the handling of citizen

complaints alleging police misconduct.

"Where, as here, the exer-

cise of authority by state

officials is attacked, fed-

eral courts must be

constantly mindful of the

‘special delicacy of the

adjustment to be preserved

between federal equitable

power and State adminis-

tration of its own law.'

@ 20 «

[Citation omitted.]

", . « When a plaintiff seeks

to enjoin the activity of a

government agency, even

within a unitary court

system, his case must contend

with ‘the well-established

rule that the Government has

traditionally been granted

the widest latitude in the

“dispatch of its own internal

affairs," . .. ' {citation

omitted]. The District

Court's injunctive order

here, significantly revising

the internal procedures of

the Philadelphia police

department, was indisputably

a sharp limitation on the

department's ‘latitude in the

"dispatch of its own internal

- 21 @

affairs."'

"When the frame of reference

moves from a unitary court

system, governed by the

principles just stated, to a

system of federal courts

representing the Nation,

subsisting side by side with

50 state judicial, legis-

lative, and executive

branches, appropriate consid-

eration must be given to

principles of federalism in

determining the availability

and scope of equitable

relief. [Citation omitted.]

"([E])ven where the prayer for

injunctive relief does not

seek to enjoin the _ state

criminal proceedings them-

- 22 =-

selves, we have held that the

principles of equity non-

theless militate heavily

against the grant of an in-

junction except in the

most extraordinary circum-

stances. ...

"Thus the principles of

federalism which play such an

important role in governing

the relationship between

federal courts and state

governments. ° ° have

applicability where injunc-

tive relief is sought. . .

against those in charge

of an executive branch of

an agency of state or

local governments’ such as

respondents here... .

me - .« When it injected

- 23 -

itself by injunctive decree

into the internal disci-

plinary affairs of this state

agency, the District Court

departed from these pre-

cepts." (423 U.S. at 378-80,

96 S.Ct. at 607-09, 46

L.Ed.2d at 573-75.)

The Court of Appeals attempted to

distinguish Rizzo as involving "a

massive federal structural decree,"

whereas this case involves only a

“preventive decree." (615 F.2d at

1249.)

"Because of the broad charges

and the sweeping relief

sought in . .. [Rizzo and

O'Shea], the plaintiffs were

asking the federal courts, in

effect, to supervise the

conduct of state officials

- 24 «

and institutions over a _ long

period of time. ...

"However in this case, the

plaintiff seeks no such

Structural relief. He seeks

ierely to enjoin the use of

an established police

practice which he maintains

violates a number of his

constitutional freedoms and

the freedoms of his fellow

citizens. Unlike the sit-

uations in O'Shea and Rizzo,

he does not seek to supervise

the functioning of the police

department." (615 F.2d at

1247, emphasis added.)

This effort to distinguish Rizzo

also fails. The problems inherent in

the erforcement of the injunction

sought by respondent would be enormous.

= 25 «

The district court would be faced with

the prospect of contempt hearings in

each instance where the “bar arm" or

“carotid artery" control hold is’ used,

in order to determine if the requisite

threat of the immediate use of deadly

force existed. This is precisely the

type of pervasive federal intrusion

into the daily operations of a local

police department which Rizzo eschews.

In addition, to permit the district

court ‘to engage in an evaluation of the

merits of these control holds is to

open a Pandora's box of requests for

federal court evaluation of each

technique and tactic used by local

police. This would fly in the face of

principles of federalism. Respondent

simply has not stated the "most

extraordinary circumstances” (423 U.S.

at 379, 96 S.Ct. at 608, 46 L.Ed.2d at

- 26 =

574) which must exist to permit a

federal court to inject itself into the

internal affairs of a state agency.

@ 27 «

CONCLUSION

Petitioner respectfully submits

that the conflict between the decision

of the Court of Appeals and applicable

decisions of this Court is so clear

that summary action is appropriate.

Therefore, petitioner requests not only

the granting of a Writ of Certiorari,

but also simultaneous reversal of the

decision of the Court of Appeals.

Dated: June 9, 1980.

Respectfully submitted,

BURT PINES,

City Attorney

JOHN T. NEVILLE,

Senior Assistant

City Attorney

Ss Ltiien Fae

S. THOMAS TODD

Deputy City Attorney

Counsel for Petitioner

THE CITY OF LOS ANGELES

- 28 «

APPENDIX

Adolph LYONS, Plaintiff-Appellant,

CITY OF LOS ANGELES, Doe Crupi,

Doe Hills, Doe Sandoval and Doe

Lloyd, Defendants-Appellees,.

No. 77-2591.

United States Court of Appeals,

Ninth Circuit.

March 28, 1980.

Michael R. Mitchell, Los Angeles, Cal.,

for plaintiff-appellant.

Daniel U. Smith, Deputy City Atty.,

_— 1 -_

Los Angeles, Cal., for defendants-

appellees.

Appeal from the United States District

Court for the Central District of

California.

Before TUTTLE,* TRASK and ANDERSON,

Circuit Judges.

TUTTLE, Circuit Judge:

Appellant Adolph Lyons filed a

seven-count civil rights complaint

against the City of Los Angeles (City)

and four of its police officers,

alleging serious police misconduct.

The district court granted partial

judgment on the pleadings in favor of

the City with respect to those counts

seeking injunctive and declaratory

relief (counts five, six and

* Honorable Elbert P. Tuttle, Senior

United States Circuit Judge, United

States Court of Appeals for the Fifth

Circuit, sitting by designation.

- 2-=

seven.) [sic] Because we find that the

district court misperceived the nature

of the “case or controversy" and

standing requirements in dismissing

part of this case, we reverse the

court's order as to counts five and

six. We affirm the court's order as to

count seven.

The appellant alleges that four

Los Angeles city police officers

stopped his car because one of its

taillights had burned out. He further

alleges that without any provocation or

reason to fear for their safety, the

police officers applied strangleholds

around his neck until he was rendered

unconscious. Appellant asserts’ that

the police department actively

o } «6

encourages the use of these holds even

in non-life-threatening situations, and

that on several occasions such police

strangleholds have resulted in severe

permanent injuries or even death.

The appellant alleges numberous

constitutional violations by the police

under color of state law. He maintains

that the strangleholds violated the

first amendment (prior restraint on

speech), the fourth amendment

(unreasonable seizure of the person),

the eighth amendment (cruel and unusual

punishment), and the fourteenth

amendment (due process). The first

four counts of the complaint seek money

damages, invoking 42 U.S.C. sections

1983, 1985, and 1986, and the theory

that the City is vicariously liable for

the actions of its employees. Counts 5

and 6 seek injunctive and declaratory

- |e

relief, respectively, to restrain the

City from authorizing the use of the

stranglehold controls except where the

victim reasonably appears to be

threatening the immediate use of deadly

force. 1/

Count seven requests a declaratory

judgment concerning the constitution-

ality of a local ordinance creating an

alleged conflict of interest within the

office of the city attorney. Section

20.26 of the Los Angeles City

Administrative Code assigns to the city

17 We note that the appellant in no way

asks for a complete prohibition on the

use of the stranglehold. He only seeks

to restrain its use to situations where

it is constitutional. In what circum-

stances the use of the strangleholds is

constitutional is, of course, a judg-

ment for the district court to make.

Our opinion deals only with the issue

of whether or not Lyons has standing to

assert his claims, and whether those

claims meet the case or controversy

requirements.

attorney the duty to prosecute

misdemeanors committed within the city

limits. 2/ The city attorney, however,

is also the official responsible for

defending the city against civil

liability for the acts of its

employees. The appellant therefore

argues that when a suspected

misdemeanant is a city employee acting

in the course of his employment, the

city attorney cannot prosecute without

violating his ethical duties of [sic]

his client. Thus, section 20.26

effectively prevents the prosecution of

city employees. Therefore, the

argument continues, section 20.26

violates the equal protection clause by

e state enabling law authorizes

such prosecution if the district

attorney consents. Cal.Gov.Code

section 41803.5.

providing less protection for victims

of misdemeanors committed by city

employees, than for victims of

misdemeanors committed by others. In

count seven appellant alleges that the

city attorney has neither investigated

nor prosecuted the police officers

responsible for the assault. He _ seeks

a declaratory judgment that section

20.26 is unconstitutional.

The City moved for partial

judgment on the pleadings with respect

to counts five, six, and seven, and

with respect to those portions of the

vicarious liability count (count two)

that related to appellant's first and

eighth amendment claims. This appeal

is from the order granting that

motion.3/ Appellant apparently does

not contest that part of the order

relating to count two of the complaint.

Thus, the only claims at issue here are

those contained in counts five, six,

and seven, against the City.

tl eecconage to 28 U.S.C. section 1291,

e Courts of Appeals have jurisdiction

over appeals from "final decisions” of

the federal district courts. Partial

disposition of a multiparty or

multiclaim action does not constitute a

final decision, absent “an express

determination that there is no just

reason for delay and upon an express

direction for the entry of judgment."

Fed.R.Civ.P. 54(b). See also Manhart

v. City of Los Angeles, 553 F.2d oot

(Sth Cir. 1ST rev'd on other

grounds, 435 U.S. 702, 98 S.Ct. 1370,

55 L.Ed.2d 657 (1978); Huckeby v.

Frozen Food ress, 555 F.2d 5a2 (5th

Cir. 1077); Lane v. Graves, 518 F.2d

965 (8th Cir. -1975). in this case,

however, the district court has made

the required determination and

direction.

II.

Count seven of the plaintiff's

complaint requests a declaration that

section 20.26 of the Los Angeles City

Adminstrative Code, which delegates to

the city attorney the authority to

prosecute misdemeanors committed within

city limits, violates equal protection

by effectively barring prosecution of

city employees for misdemeanors.

The City argues that Lyons lacks

standing to assert that the failure of

the city attorney to prosecute his

assailants violated his constitutional

rights. The City also argues, among

other things, that the City is immune

from suit regarding the performance of

discretionary prosecutorial duties, and

the relief sought constitutes an

unwarranted interference with state

= 9 «

criminal proceedings.

We need not reach these

contentions, however, because we find

the appellant's argument moot. The

city attorney has now announced an

offical policy of referring to the

district attorney those criminal cases

in which the alleged misdemeanant is a

city employee, and in which there is a

reasonable basis for a civil suit

against the city. Therefore, this part

of the case is no longer justiciable.

‘Cf. Hall v. Beals, 296 U.S. 45, 90

S.Ct. 200, 24 L.Ed.2d 214 (1969) .4/

Therefore, we affirm the district court

as to count seven, intimating no view

as to the merits of the appellant's

contentions.

+ per oar Our reasoning in Part Lil of

the opinion, we reject the contention

that this case is not moot because

-continued-

o 16 «

Itt.

However, we reach a different

result as to counts five and six

pertaining to the use of the

stranglehold controls. Count five of

the complaint seeks preliminary and

permanent injunctions restraining the

City from authorizing use of the

stranglehold controls other than in

life-threatening situations. Count six

seeks a declaration that the use of

such controls in non-life-threatening

situations violates several provisions

of the Constitution.

v continued) “there 1S a possibility

a recurrence which would be within

the terms of proper device." See

Bator, Mishkin, Shapiro and Wechsler,

Hart & Wechsler's The Federal Courts

and the Federal System, 110 (1573). We

find as to this count, that given the

change in policy, there is not a strong

possibility of a recurrence of the

behavior of which the appellant

complains.

» 4% =

The district court did not issue |

findings of fact or conclusions of law /

on these issues. We therefore assume

that its judgment rested essentially

upon the rationales set forth in the

defendant's motion in support of

partial summary judgment on the

pleadings and its briefs in this Court.

The appellee relies chiefly on the

reasoning of O'Shea v. Littleton, 414

U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674

(1974) and Rizzo v. Goode, 423 U.S.

362, 96 S.Ct. 598, 46 L.Ed.2d 561

(1976) for the proposition that Lyons

has not shown the possibility of "real

and immediate future injury.” It is

true, as the appellee states, that

O'Shea says that "“[pJast exposure to

illegal conduct does not in itself show

a present case or controversy regarding

injunctive relief ° ° ° if

unaccompanied by any continuing,

present adverse effects." 414 U.S. at

495-96, 94 S.Ct. at 676. This is an

argument that the plaintiff's case or

controversy is no longer active, but is

moot or not ripe.5/

It seems the court below

concluded, most likely on the basis of

57 See 13 Wright, Miller 6&6 Cooper,

ederal Practice and Procedure:

Jursidiction, section 3531 at 231-32

(1975): “O'Shea v. Littleton blended

standing with both ripeness and

mootness concerns. .. . As will be

seen, much of the law of ripeness and

mootness can be viewed as simply a

convenient way of expressing particular

aspects of standing concerns." And at

89 Supp. (1979) (concerning Rizzo):

"Recourse to Article III justiciability

doctrine in this setting has strong

connections with established mootness

422 U.S. 490, 495, n.TO, Ct. ’

45 L.EdG.2d 343 (1975): “The standing

question thus bears close affinity to

questions of ripeness--whether the harm

asserted has matured sufficiently to

warrant judicial intervention--and of

mootness--whether the occasion for

judicial intervention persists."

» 43 =

O'Shea and Rizzo, that there was no

standing because there was insufficient

showing that the police were likely to

do this to the plaintiff again. While

this factor was discussed in both Rizzo

and O'Shea, reliance on both those

cases to support this contention is

misplaced. O'Shea involved a suit

alleging racial discrimination against

a local judge and magistrate. To be

affected by the alleged practices of

these officers the court said that

the plaintiffs would have to

"proceed to violate an unchallenged

law and if . .. charged, held to

answer, and tried . ° ° before

petitioners .. . [and then] subjected

to the discriminatory practices ...."

414 U.S. at 497, 94 S.Ct. at 676. In

' Rizzo, a broad-based suit that sought

primarily to protect minorities from

» Ihe

alleged police abuses, the Court found

the plaintiff's claims even more

speculative, since they were based

“upon what one of a small, unnamed

minority of policemen might do to them

in the future because of that unknown

policeman's perception of departmental

disciplinary procedures." 423 U.S. at

372, 96 S.Ct. at 605.

But in this case, the threat of

future injury to not only Lyons, but to

every citizen in the area is much more

immediate. To be subject to these

strangleholds, a citizen need only be

stopped for a minor traffic violation

while driving an automobile, as shown

by the alleged facts in this case. The

use of these strangleholds is accepted

police practice, even in non life-

threatening situations. It is not

farfetched to suggest that especially

oe 18 «

in a city like Los Angeles, where many

motorists drive long distances daily,

the chances of being stopped by a

policeman for an alleged motor vehicle

violation are fairly good. Certainly

the odds of having that sort of

encounter are much greater than the

odds of having the sort of encounters

described in’ O'Shea or in Rizzo, and

therefore meet the constitutional

requirements of "case" or

"controversy." ‘Baker v. Carr, 369 U.S.

186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663

(1962); Massachusetts v. Mellon, 262

U.S. 447, 488, 43 S.Ct. 597, 601, 67

L.Ed. 1078 (1923). For that reason

alone, we could hold that Lyons has

standing to seek injunctive relief,

even given the O'Shea and Rizzo

standards that there be a showing that

this plaintiff would be stopped again

o 16 «

and subjected to the practice,

But this case is distinguishable

from both O'Shea and Rizzo case _ [sic]

on broader and more significant

grounds. The plaintiffs in O'Shea and

' Rizzo sought massive structural relief.

In O'Shea the court's opinion

characterized the relief sought as an

"ongoing federal audit of state

criminal proceedings." 414 U.S. at

500, 94 S.Ct. at 678, Because of the

broad charges and the sweeping relief

sought in both cases, the plaintiffs

were asking the federal courts, in

effect, to supervise the conduct of

state officials and institutions over a

long period of time. It was this role

and this perceived intrusion into what

were considered state matters which

were at the heart of the court's

reluctance to find that the "case" or

» 49 «

"controversy" requirements had been

met. In this’ sense, the Court's

opinion in O'Shea and Rizzo represented

the evolution of the court's concerns

about "our federalism" first noted in

Younger v. Harris, 401 U.S. 37, 91

S.Ct. 746, 27 L.Ed.2d 669 (1971).6/

However in this case, the

plaintiff seeks no_- such structural

relief. He seeks merely to enjoin the

use of an established police practice

8 enerally, Fiss, Dombrowski, 60

ale LJ 1103 1977), especially at

1153: "For the new majority committed

to the ‘Our Federalism’ of Younger and

to limitation of federal intervention

in state court proceedings, the

administrative injunction sought in

O'Shea v. Littleton was a monstrosity:

. e e” bee also, Tribe, Constitutional

Law 156, (1978), “O'Shea and Rizzo no

doubt reflect a concern on the part of

the Supreme Court that some limits be

placed on the power of federal district

courts to put into effect broad

structural injunctions of the _ sort

which have become more commonplace in

recent years."

oe %8 «

which he maintains violates a number of

his constitutional freedoms and the

freedoms of his fellow citizens.

Unlike the situations in O'Shea and

‘Rizzo, he does not seek to supervise

the functioning of the police

department. In Rizzo, the Supreme

Court distinguised and implicitly

approved a Fourth Circuit case in which

an injunction against the police

department was granted, Lankford v.

~Gelston, 364 F.2d 197 (4th Cir. 1966),

on the grounds that in that case the

Baltimore Police were "executing an

‘evil practice that has long and

notoriously persisted in the Police

Department.'" 423 U.S. at 362, 373-74

n.8, 96 S.Ct. at 605 n.8. In Lankford,

the Fourth Circuit was persuaded that

an injunction should issue even though

the complained-of practices had ceased.

o 19 «

364 F.2d at 202-04. The Supreme Court

also distinguished Rizzo from Hague v.

CIO, 307 U.S. 496, 59 S.Ct. 954, 83

L.Ed. 1423 (1939) and Allee v. Medrano,

416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d

566 (1974), two cases which permitted

suits under 42 U.S.C. section 1983

against law enforcement authorities, on

the grounds that the latter two cases

involved a “persistent pattern” of

police misconduct rather than a

statistical pattern which showed a

certain type of behavior. The charge

in this case involves a_ sanctioned

police practice and policy which is

Clearly closer to the "pattern" of

police behavior in Hague and Allee than

Rizzo.7/ And even though the Supreme

a aay a invocation of the

ate remedy is at least partially

ained by the fact deliberately

-continued-

« 26 «

Court in Rizzo analyzed this "practice

and pattern" issue in terms of the

showing needed to establish liability

under section 1983, it relates directly

to the Court's discussion of the

standing or ripeness issue because both

reflect the Court's preoccupation with

the problems of granting massive

structural relief.8/

(77 continued) ordered violations of

constitutional rights have not been the

primary problem. Most frequently,

unconstitutional searches, arrests, or

other abuses of police authority cannot

be traced as in Hague. to direct

instructions from high police offi-

cials." Note, The Federal Injunction

as a Remedy for Unconstitutional Police

Conduct, 78 Yale L.J. 143, 147 (1968).

This case fits neatly into the Hague

set of facts since the stranglehold was

sanctioned police practice. Therefore,

the issuance of an injunction is

particularly appropriate.

w, See Warth v. Seldin, 422 U.S. 490,

20 (1575) (Brennan, J., dissenting)

for a similar analysis that a decision

on standing was related to a judgment

on the merits; see also, Wright, Miller

-continued

@ 21 «

It is clear that Lyons once had a

live and active claim meeting all the

Article III requirements even under

O'Shea and Rizzo, if only for a_ period

that lasted but a few seconds. That

period could be described as the time

between the moment he was stopped and

the moment the stranglehold was

applied, or even the split second

between the moment the officer moved to

grab him and the moment the

stranglehold was applied. If under

O'Shea and Rizzo. Lyons no longer has a

wy continued) 6 Cooper, section 3551

at 89 Supp.