Opposition — City of Los Angeles v. Adolph Lyons

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IN THE SEeP2 20

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SUPREME COURT OF THE UNITED STATEG OFFICE OF THE CLERK

FALL TERM 1980 ae ‘ =

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RECEIVED.»

NO. 79-1995

THE CITY OF LOS ANGELES,

Petitioner,

vs.

ADOLPH LYONS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

RESPONDENT'S MOTION FOR LEAVE

TO PROCEED IN FORMA PAUPERIS;

AFFIDAVIT OF ADOLPH LYONS

4

nies R. MITCHELL

5850 Cancga Avenue

Fourth Floor

Woodland Hi'tls, CA 91367

(213) 992-1203

Attorney for Respondent

Adolph Lyons

MOTION FOR LEAVE

TO PROCEED IN FORMA PAUPERIS

Respondent ADOLPH LYONS hereby moves the Court for

leave to proceed in forma pauperis, without prepayment

of fees and costs or security therefore, as shown by

aco

ICHAEL R. MITCHELL

5850 Canoga Avenue, 4th Fl.

Woodland Hills, CA 91367

(213) 992-1203

his affidavit appended hereto.

Attorney for Respondent

———————————— eee

IN THE SUPREME COURT OF THE UNITED STATES

FALL TERM, 1980

NO. 79-1995

CITY OF LOS ANGELES, )

)

Petitioner, )

)

vs. )

)

ADOLPH LYONS, )

)

Respondent. )

)

)

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

ON APPEAL IN FORMA PAUPERIS

>

I, ADOLPH LYONS, being first duly sworn, depose and say

that I am the respondent in the above-entitled case; that in

support of my motion to proceed without being required to pre-

pay fees, costs or give security therefor, I state that because

of my poverty I am unable to pay the costs of said proceeding

or to give security therefor; that I believe I am entitled to

redress; and that the issues which I desire to present are that

the petition for writ is untimely and should not otherwise be

granted; and that if the writ is granted, the judgment of the

Court of Appeals for the Ninth Circuit should be affirmed. I

a

believe I am entitled to such rulings.

I have not sought leave to proceed in forma pauperis in

any court below.

I further swear that the responses which I have made to

the questions and instructions below relating to my ability to

pay the cost of prosecuting the appeal are true.

QUESTION NO. 1:

Are you presently employed?

A. If the answer is yes, state the amount of your salary

. OY wages per month and give the name and address of

your employer.

ANSWER TO NO. 1:

Yes.

A. $1518 gross per month; Fairview State Hospital,

2501 Harbor Boulevard, Costa Mesa, CA 92626.

QUESTION NO. 2:

Have you received within the past twelve months any income

from a business, profession or other form of self-employment,

or in the form of rent payments, interest, dividends, or other

source?

ANSWER TO NO. 2:

No.

QUESTION NO. 3:

Do you own any cash or checking or savings account?

A. If the answer is yes, state the total value of the

items owned.

ANSWER TO NO. 3:

Yes.

A. Checking account averages about $600.00.

QUESTION NO. 4:

Do you own any real estate?

A. If the answer is yes, describe the property and

state its approximate value.

ANSWER TO NO. 4:

Yes.

A. 1/7 remainder-man interest in farm land in Louisiana

after mother's death whereupon my interest would be

about $1700.

QUESTION NO. 5:

List the persons who are dependent upon you for support

and state your relationship to those persons.

ANSWER TO NO. 5:

Yes; son, Jason Adolph Lyons, age 10.

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties

for perjury.

SUBSCRIBED AND SWORN TO

before me this A7ZH day of

August, 1980.

OFFICIAL SEAL

LAQUETA R, ALEXANDER

NOTARY PUBLIC... CALIFORNIA

' ¥ PRINCIPAL Ory 'Ck IN

LON LOS ANGELES GOHNty

My Commission Expires May 24, 1931

Let the applicant proceed without prepayment

of costs or fees or the necessity of giving

security therefor.

JUSTICE

IN THE

SUPREME COURT OF THE UNITED STATES

FALL TERM 1980

NO. 79-1995

THE CITY OF LOS ANGELES,

Petitioner,

vs.

ADOLPH LYONS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENT

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

MICHAEL R. MITCHELL

5850 Canoga Avenue

Fourth Floor

Woodland Hills, CA 91367

(213) 992-1203

Attorney for Respondent

Adolph Lyons

Respondent ADOLPH LYONS prays that the Court:

A. deny the petition for writ of certiorari or,

alternatively,

B. summarily affirm the judgment of the United States

Court of Appeals for the Ninth Circuit.

QUESTIONS PRESENTED FOR REVIEW

Petitioner's presentation is satisfactory.

PARTIES

Petitioner's presentation is satisfactory.

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CONTENTS

Page

Opinion Below 4

Jurisdiction 4

Constitutional Provisions and Statutes Involved 4

Statement of the Case 4

Summary of Argument 5

Argument 5

A. The Petition is Premature 5

B. The Court of Appeals Has Not Decided a

Federal Question in Conflict With

Applicable Decisions of This Court 7

(1) An Article III, §2 Case or Controversy

Exists in This Case 7

(2) Lyons is Entitled to Federal Equitable

Relief Which Would Not ‘nvoke Supervising

the Police Department 9

TABLE OF AUTHORITIES

Page

U.S. Constitution, Article saa, $2 4,7

Cal. Code of Civil Procedure § 3548 10

Cal. Evidence Code § 664 10

Cal. Penal Code § 2652.5 9

FRCP 54(b) 5

42 U.S.C. § 1983 4

Cases

O'Shea v. Littleton (1974)

414 U.S. 488, 94 S.Ct. 669

38 L.Ed. 2d 674 7,9

People v. Sanders (1969)

268 C.A. 2d 802

74 Cal.Rptr. 350 8

Rizzo v. Goode (1976)

423 U.S. 362, 96 S.Ct. 598

46 L.Ed. 2d 561 7,029

OPINION BELOW

Petitioner's presentation is satisfactory.

JURISDICTION

Petitioner's presentation is satisfactory.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

U.S. Constitution, Article III, §2 which provides, in

relevant part:

The Judicial Power shall extend to all

cases, in Law and Equity, arising under this

Constitution [and] the Laws of the United

States...

42 U.S.C. § 1983 which provides, in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any

State... subjects or causes to be subjected any...

person ... to the deprivation of any rights,

privileges or immunities secured by the Consti-

tution and laws, shall be liable to the party

injured in an action at law, suit in equity or

other proper proceeding for redress.

STATEMENT OF THE CASE

Petitioner's otacshinnt of the case is satisfactory, ex-

cept insofar as it fails to (and could not) reflect plaintiff's

motion to the District Court to amend his complaint, which

motion is set for hearing September 15, 1980. Plaintiff has

just discovered that at least 14 persons have been killed in

whe

Los Angeles County in the past five years by use of a

Stranglehold; ten of these persons were strangled by

Los Angeles officers. (See Exhibit A hereto). Eighty per-

cent (80%) of those killed by Los Angeles officers were black

males who comprise only nine percent (9%) of the City's

population. Plaintiff, a black male, seeks to add allegations

of discrimination against black males denying them equal pro-

tection of the law and due process.

Petitioner sought a stay from this Court of the District

Court proceedings, including the hearing on preliminary injunc-

tion now set for September 22, 1980. Mr. Justice Rehnquist

denied the motion to stay July 22, 1980.

SUMMARY OF ARGUMENT

The petition is premature because it seeks review of a

decision on interlocutory appeal at the pleading stage. There

have been no evidentiary hearings; the record is bare. The

case may settle or petitioner may prevail below. In any event,

the Court of Appeals has not decided any federal question in

conflict with any decision of this Court; respondent is seek-

ing carefully narrowed equitable relief to stop needless police

stranglehold deaths.

ARGUMENT

A. THE PETITION IS PREMATURE

The City seeks Supreme Court review of the Ninth Circuit's

decision on an interlocutory appeal of the District Court's

dismissal of two (2) counts of Lyons' complaint. The District

Court expressly determined, pursuant to FRCP 54(b), that there

was no just reason for delay, expressly directed entry of judg-

ment, and stayed proceedings pending the appellate decision.

To date, there have been no evidentiary hearings and only mini-

mal discovery. Extensive expert deposition discovery is being

undertaken in anticipation of the hearing on plaintiff's motion

for preliminary injunction now set for September 22, 1980. The

parties anticipate consolidating with this hearing the declara-

tory relief and permanent injunction hearings.

The record now is devoid of testimony by any party or any

expert. This Court should allow Lyons to present evidence at

the hearing, which will show that officers of Los Angeles have

killed at least ten persons since 1975 with these strangleholds,

including at least three in the first six months of 1980, and

that the overwhelming view of medical and martial arts experts

is that the strangleholds are likely to result in death.

With the presentation of this evidence, the case may settle.

If not, the parties may accept the judgment of the District

Court, or, if any party appeals, the Ninth Circuit will have an

opportunity, for the first time, to cull the evidence and con-

sider the case anew. In any event, the case would then reach

this Court, if at all, with a complete evidentiary record, It

would now be a waste of the Court's time to issue the Writ when,

if the parties wish, the Court may have the opportunity to do so

in the future on a full record.

B. THE COURT OF APPEALS HAS NOT DECIDED A FEDERAL

QUESTION IN CONFLICT WITH APPLICABLE

DECISIONS OF THIS COURT

(1) AN ARTICLE III, §2 CASE OR

CONTROVERSY EXISTS IN THIS CASE

Petitioner claims that the instant decision conflicts

with O'Shea v. Littleton (1974) 414 U.S. 488, 94 S.Ct. 669, 38

L.Ed. 2d 674 and Rizzo v. Goode (1976) 423 U.S. 362, 96 S.Ct.

598, 46 L.Ed. 2d 561. ‘This claim is incorrect.

In O'Shea, this Court held that the case-or-controversy

requirement of Article III was not satisfied when persons com-

plained that if they violated a law, if they were charged, if

they were held to answer and if they were tried, they might be

subjected to discriminatory practices by local judges.

The instant case is clearly distinguishable. Here plain-

tiff, a young black male, claims he was stopped by Los Angeles

police officers because one of the taillights on his car was

burned out--whereupon, without any provocation or reason to fear

for their safety, police officers strangled him unconscious.

Plaintiff claims that the police department actively trains and

encourages use Of these strangleholds in non-life-threatening

situations and that severe permanent injuries and ten deaths

have resulted. Lyons is not seeking to work his way through a

five-fold process, as plaintiffs did in O'Shea. He is pleading

that as soon as you get stopped by Los Angeles police--even for

a burned out taillight--you may be strangled to death, as a

matter of unconstitutional, ignorant policy.

As the Court of Appeals noted, "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 there-

fore meet the constitutional requirements of ‘case' or 'con-

troversy,'" giving Lyons Standing to seek injunctive and declara-

tory relief. Moreover the Court of Appeals found that there

were independent reasons for granting Lyons relief because he

is seeking very narrow relief: a declaration that the strangle-

holds constitute the use of deadly force and/or an injunction

against use of strangleholds, not in every instance, but only

absent the threat of deadly force. He is not seeking any mas-

sive structural relief such as was sought in Rizzo.

In Rizzo, supra, plaintiffs sought massive structural re-

lief enjoining misconduct by a "small unnamed minority" of police-

men who might do something to them in the future because of that

unknown officer's perception of departmental disciplinary proced-

ures." 423 U.S. at 372, 96 S.Ct. at 605. Lyons seeks carefully

limited preventative relief (rather than structural relief) from

departmentally authorized conduct (rather than misconduct) by all

Los Angeles police officers who strangle a hugely disproportionate

percentage of black males to death because of the officers' cor-

rect perception of departmental policy about when strangleholds

co be applied. But the official policy is totally wrong. It

is promulgated without consideration of the extensive expert opinion

that the strangleholés constitute deadly force.

There is even support for this proposition in California case

law. People v. Sanders (1969) 268 C.A. 2a 802, 805, n.l, 74

Cal.Rptr. 350, where the court stated:

In the San Francisco Public Library we find

a work (Bruce Tegner (1961), Judo for Fun, pp.

20-21--Library of Congress Catalog Number 61-

16761) wherein it is stated: "Chokes must not

be attempted by any Judo player unless there is

a Black Belt instructor present who is trained

in the art of resuscitation (Kappo or Katsu).

It is foolish and dangerous to attempt choking

techniques without this safety precaution. Al-

though there are some instructors who, unfor-

tunately allow it, chokes against the windpipe

should not be practiced. Chokes against the

windpipe can be fatal. If at any time a windpipe

choke is applied to you--you must submit immediately

and refuse to practice with anyone who applies

chokes of this nature. [4] It requires more skill

to apply Judo chokes properly, against the carotid

artery. You must not apply even a legal choke with-

out the presence of a Black Belt Instructor. The

legal choke against the carotid artery can cause un-

consciousness and there is danger of sericus perman-

ent injury or even fatality if the unconscious person

is not revived within a matter of minutes."

See also Cal. Penal Code §2652.5 (misdemeanor for jail personnel

to place "any chain or other mechanical restraint around the

neck of any prisoner for any purpose").

(2) LYONS IS ENTITLED TO FEDERAL EQUITABLE

RELIEF WHICH WOULD NOT INVOLVE

SUPERVISING THE POLICE DEPARTMENT

Neither O'Shea nor Rizzo involved the threat of death to

any person. But the strangleholds regularly used by Los Angeles

officers do kill; they constitute deadly force.

The City argues that 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." Petition at 26. This argument

presumes the incredible: that Los Aneles officers would dis-

obey the law. It is presumed that official duty will be

regularly performed and that the law will be Obeyed. Cal.

Evidence Code §664; Cal. Code of Civil Procedure §3548.

If the District Court grants injunctive relief, no serious

problems would result. Presumably, Los Angeles would amend

its policy to reflect (and advise its officers) accordingly

that the strangleholds are deadly and must not be used unless

deadly force is called for. Presumably, the officers would obey

the law, follow the new policy and would stop ignorantly and

needlessly killing citizens. No “supervision" of the Los Ange les

Police Department is called for. The Citv is free to fashion

and implement whatever policy it wishes to advise and properly

instruct its officers.

If the Court grants declaratory relief, the same result

should occur.

For the foregoing reasons, Respondent ADOLPH LYONS requests

that the petition for certiorari be denied.

Respectfully submitted,

AEL R. MITCHELL

Attorney for Respondent

-10-

LOS ANGELES COUNTY STRANGLEHOLD DEATHS

1975-1980

A. BY LOS ANGELES OFFICERS

Victim CARL MICHAEL MIDDLETON (LA Coroner's Case No.

75-6505) Black male, aged 25 to 30 years old, died May

27, 1975, after being "choked out" by Los Angeles police

officers during arrest. Cause of death: Asphyxiation

due to manual compression of the neck.

Victim FRANK FAIRBANKS (LA Coroner's Case No. 75-9571)

Caucasian male, aged 21, died August 10, 1975, after

application of Bar Arm Control by Los Angeles police offi-

cer. Cause of death: Acute cardio-respiratory arrest due

to compression of the neck. (Negative drugs).

Victim BOOKER T. FORD, JR. (LA Coroner's Case No. 75-13320)

Black male, aged 28 years old, died November 4, 1975 after

Los Angeles police officer Robert Hyde applied a strangle-

hold. Cause of death: acute cardio-respiratory arrest

due to compression of the neck.

Victim EDWARD DAILY (LA Coroner's Case No. 76-12099) Black

male, aged 19, died October 6, 1976 after "cardio-respiratory

arrest in back of police car." Cause of death: Asphyxia-

tion due to neck restraint procedure for abnormal behavior

associated with phencyclidine use.

Victim ALVIN WHITEHEAD (LA Coroner's Case No. 78-1594) Black

male, aged 34, died February 1, 1978 after Los Angeles police

officers twice applied bar arm control. Cause of death:

Fracture, cervical spine with crush injury of spinal cord.

Mode of death: homicide.

Victim DAVID RANDALL ADKINS (LA Coroner's Case No. 78-9095)

Black male, aged 39, died July 24, 1978 after application of

"choke hold" by Los Angeles police officers. Cause of death:

Asphyxia due to neck compression during restraining procedures.

EXHIBIT A

Page 1 of 3

10.

il.

Victim CHADWICK TURK (LA Coroner's Case No. 79-10933)

Black male, aged 30, died September 1, 1979 after "choke

hold" applied by Los Angeles International Airport Security

Officers. Cause of death: Acute cardio-respiratory arrest

during restraining procedures for acute psychosis with

agitation. Severe neck injuries noted.

Victim ROBERT CAMERON (LA Coroner's Case No. 80-360) Cau-

casian male, aged 32, died January 7, 1980 after application

of choke hold by Los Angeles police officers. Cause of

death: Hypoxic Encephalopathy (lack of oxygen to brain) due

to respiratory arrest following application of a "choke

hold" by police officers while in state of acute ethanol

and cocaine intoxication (but Coroner's toxicological analy-

sis is completely negative for ethanol, cocaine and all

Other drugs).

Victim JAMES WRIGHT (LA Coroner's Case No. 80-3230) Black

male, aged 41, died March 7, 1980 after application of bar

arm control by off-duty Los Angeles police officer. Cause

of death: Acute cardio-respiratory arrest due to carotid

control hold of neck (fracture of thyroid).

Victim LARRY MORRIS (LA Coroner's Case No. 80-7810) Black

male, aged 29 years, died June 17, 1980 after Los Angeles

police officers "unsuccessfully attempted to apply a carotid

control hold." Autopsy report pending.

B. BY OTHER THAN LOS ANGELES OFFICERS

Victim RUDY RAUL GARCIA (LA Coroner’ Case No. 77-7065) Cau-

casian male, 22 years old, died June 12, 1977 after being

brought to the ground with a "bar hold" by two Pomona, CA

police officers. Cause of death: neck compression during

arrest procedure.

EXHIBIT A

Page 2 of 3

12.

13.

14.

Victim ANTHONY BROWN (LA Coroner's Case No. 78-7428) Black

male, aged 23, died June 13, 1978, after choke hold applied

by Sears Roebuck security officer. Cause of death: Asphyxia

due to compression of neck during restraining procedure.

Victim HAROLD T. HARRIS (LA Coroner's Case No. 78-11076)

Black male, aged 23, died September 7, 1978 after being

arrested and restrained by Compton, CA police officers.

Cause of death: Asphyxia during restraining procedure for

acute psychosis of phencyclidine intoxication.

Victim WILLIAM L. PRIETO (LA Coroner's Case No. 80-4227)

Caucasian male, aged 53, died March 31, 1980 by a choke hold

during arrest by a citizen. Cause of death: Compression

and fracture of spine, as a consequence of a “neck control

hold."

EXHIBIT A

Page 3 of 3

< t

\ VERIFICATION

STATE OF CALIFORNIA, COUNTY OF

|, the undersigned, say (check applicable paragraph):

| am a party to this action. | have read the foregoing document and know its contents. The matters stated in it are true of my own

knowledge except as to those matters which are stated on information and belief, and as to those matters | believe them to be true.

lam an officer a partner of

a party to this action, and am authorized to make this verification for and on its behalf, and | make this

verification for that reason. | have read the foregoing document and know its contents. | am informed and believe and on that ground allege

that the matters stated in it are true.

| am one of the attorneys for

C) a party to this action. Such party is absent from the County of aforesaid where such attorneys have their office, and | make this verification

for and on behalf of that party for that reason. | have read the foregoing document and know its contents. | am informed and believe and on

that ground allege that the matters stated in it are true.

Executed on 19___, at California.

| declare under penalty of perjury that the above is true and correct.

O

O

(Signature)

Subscribed and sworn to betore me this day of ,19

Notary Public in and for sald County and State

ACKNOWLEDGMENT OF RECEIPT

Received copy of the within document on 19

(Signature)

PROOF OF SEAVICE BY MAIL

| am a resident of the county aforesaid; | am over the age of 18 and not a party to the within action; my business address is;

5850 Canoga Avenue, 4th Floor, Woodland Hills, CA 91367

On_August 28 , 19.80, | served the within document on —the parties

in this action by placing a true Copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail at

Woodland Hills

addressed as follows:

Lewis N. Unger

Deputy City Attorney

1800 City Hall East

200 N. Main Street

Los Angeles, CA 90012

Executedon__August 28, 19_ 804 Woodland Hills California.

(check applicable paragraph below)

CJ (State) | declare under penalty of perjury that the above is true and correct.

Fy (Federal) —_| declare that | am employed in the office of a member of the bar of this court at whose direction the service was made.

LAQUETA RK. ALEXANDER

WOLCOTTS FORM 614, Rev 6 79