# Petition — City of Los Angeles v. Adolph Lyons > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2566%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 934 ## Text “Suprema Court, Us 4 + EILED } 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 a 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 a 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- ——- A. 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 « B. 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 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 | f 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 f / 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 doctrines." © See also Warth v. Seldin, 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. See also Note, Rizzo v. Goode: Federal Remedies for Police Misconduct, 62 Va.L. Rev. 1259, 1265 (1976): “The Court's conclusion that the plaintiffs had no case or controversy with Philadelphia police officials reflected the Court's view of the merits: high police officials do not ‘cause’ citizens ‘to be subjected’ to patterns of misconduct merely by acquiescing in them. - 22 = claim for injunctive relief, it is because that claim has now become moot and that controversy no longer exists. But there are notable exceptions to the mootness rule which make Lyons' claim deserving of consideration in court. There is a long-standing rule of equity that a case does not become moot as to the specific petitioner ina case, even if the complained-of conduct has ceased, “if there is a possibility of a recurrence which would be within the terms of a proper decree.” See Bator, Mishkin, Shapiro and Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 100 (1973). As stated in United States v. W.T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), an antitrust case in which the defendant had voluntarily - 23- ceased the allegedly illegal conduct: Both sides agree to the abstract proposition that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. ° - « A controversy may remain to be settled in such circumstances °e e ee The defendant is free to return to his Old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. . . . For to say that the case has become moot means that the o' 28 « defendant is entitled toa dismissal as a matter of right .. .. The courts have rightfully refused to grant defendants such a powerful weapon against public law enforcement. (Citations omitted. ] id. at 632, 73 S.Ct. at 897. Cf. United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897); NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 LeEd.2d 21 (1970); Walling v. Helmerich & Payne, Inc. 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29 (1944) .9/ Under this 9 As stated in Walling, a case under the Fair Labor Standards Act in which an employer argued the case was moot because the complained-of practice had been discontinued: -continued = 25 « standard, Lyons’ claim is not moot and can be heard since there is a strong possibility of recurrence of this police tactic. 10/ (9/7 continued) We hold that the case is not moot under these circum- stances. Despite respon- dent's voluntary cessation of the challenged conduct, a controversy between the par- ties over the legality of the split-day plan still remains. Voluntary discontinuance of an alleged illegal activity does not operate to remove a case from the ambit of judicial power. . . .Re=- spondent has consistently urged the validity of the split-day plan and would presumably be free to resume the use of this illegal plan were not some effective restraint made. ° ° ° (Citations omitted). Id. at 43, 65 S.Ct. at 14-15. In this case there is even a stronger possiblity of recurrence since the police have not 6ff