Petition — Joseph L. Alioto v. Joseph B. Williams

Supreme Court brief1981

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

FILED

8-0-6, -|_ pF 21 1980

MICHAEL RODAK, JR., CLERK

No.

IN THE

Supreme Court of the United States

October Term, 1980

JosEPH L. ALIOTO, et al.,

Petitioners.

Vs.

JosePH B. WILLIAMS, et al., and Leo BAZILE, et al. |

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR CERTIORARI

GEORGE AGNOST

City Attorney

STEVEN A. DIAZ

Deputy City Attorney

206 City Hall

San Francisco, California 94102

Telephone (415) 558-2221

Attorneys for Petitioners

Joseph L. Alioto, et al.

QUESTION PRESENTED

May an award of attorneys’ fees be made in a civil rights

action when “mootness” is invoked to preclude appellate

review of the trial court judgment?

PARTIES TO THE PROCEEDING

The Petitioners are: Joseph L. Alioto, individually and in

his official capacity as Mayor of the City and County of San

Francisco; Washington Garner, individually and in his official

capacity as Chairman of the San Francisco Police Commission;

Marvin Cordoza, individually and in his official capacity as a

member of the San Francisco Police Commission; Donald

Scott, individually and in his official capacity as Chief of Police,

San Francisco Police Department; Charles Barca, individually

and in his official capacity as Chief of Inspectors, San Francisco

Police Department; and, Mortimer McInerney, individually and

in his official capacity as Captain of Inspectors, San Francisco

Police Department.

The respondents in this action (originally two actions

which were consolidated) are: Joseph B. Williams, Frederick

Douglas Haines, Jr., Carlton B. Goodlet, Benjamin Criswell,

Hamilton T. Boswell, on behalf of themselves and all other

persons similarly situated; and, Leo Bazile, Joseph George,

Michael Jones, Charles Lawrence, Prince McGrew, Albert C.

Taylor, and all others similarly situated.

|»

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...........-ssssssesssssesssrenenrenenensnsensess i

PARTIES TO THE PROCEEDING ..........:::scseeeeereteeresseeees i

TABLE OF CONTENTS .......:ccssccssseesesesresesnesnsaennneseneessneenns il

TABLE OF AUTHORITIES ..........::c:cceesceeseeseeeereeneeenseeenenees ill

OPINIONS BELOW ..........cccc:cccsecesseeeseeseeseesneesnsenaesneeeneesens 2

JURISDICTION .........-:cccesssssscssseesseesreessneseeseennessnsansresesseeens 2

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED ..........:c:scceeeeeseeessnenenseeseeeeneesnecereneseees

STATEMENT OF THE CASE .........::ccsecsesssereeerenseneresenseenees 4

REASONS FOR GRANTING THE WRIT........-.-.-.-.-00000+: 7

I. THERE IS AN IMPORTANT QUESTION OF

FEDERAL LAW IN THIS CASE WHICH

SHOULD BE DECIDED BY THIS COURT.... 7

Il. THIS COURT HAS NOT HERETOFORE

DETERMINED THE APPLICABILITY OF

42 US.C. SECTION 1988 IN CASES IN-

VOLVING MOOTNESS ON APPEAL............. 8

II]. CONCLUSION 0.0... cccccccesseeseesesereeereseeeennesnnesersens 11

APPENDICES:

_ Court of Appeals decision re attorneys’ fees

District Court orders re attorneys’ fees

Court of Appeals decision re mootness

Distric Court findings of fact and conclusions of

law and Preliminary Injunction

iii

TABLE OF AUTHORITIES

CASES PAGE

Hanrahan v. Hampton, —U.S.—, 100 S. Ct. 1987 (1980) ..8, 9

Maher v. Gagne, —U.S.—, 100 S. Ct. 570 (1980)............ 8.9, 10

Williams v. Alioto, 549 F.2d 136 (9th Cir. 1977) .......cccccee 2, 6

FEDERAL STATUTES

Fe EN COR © sincscisvnscsascavnsabsdeuisy cadadioescbdenevsciesenvons 2

Be DIN sacleciscthtinsssecsncnesscdasiniadcetcebsmabinentilmudeeaniess 5

Re aa SIU HPO cis csscsciasiinvisnsicdscctantaabiacebuaidecmadeoaneebsoniten 5

Bee al EE IID sicndniisnsaisinscsahsceiehinte thaaniptoameccehodemavenccsen 5

ee III acces dsssitcsnkcenbsneabiereaenbolad taliisesemiensandnsacs 5

a a I srs ik Uiseentahepennesdsessespoventennieadanys 5

ae een IE UID acd sencicsscsniianocscasstcosesecdesconscses’ 2,6,7,8,9, 11

Court RULES

IE INN NN BPD icc cvcncnsstssiisssedeasnavsagdomsiebenlbbciomiens 2

I te NE BE icici cdistecdesbvcxemmcvsabibctelcnatectennasietion 2

No.

IN THE

Supreme Court of the United States

October Term, 1980

JOSEPH L. ALIOTO, et al.,

Petitioners.

VS.

JOSEPH B. WILLIAMS, et al., and LEO BAZILE, et al.

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR CERTIORARI

Petitioners pray that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Ninth

Circuit entered in this proceeding on July 24, 1980 and

amended on August 29, 1980.'

1See Appendix A.

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth Circuit

(No. 78-2965, August 29, 1980) is not yet reported; it is set

forth in Appendix A hereto at pages Al - A9. The orders of the

United States District Court for the Northern District of

California (Civ. Nos. C-74-866-AJZ and C-74-867-AJZ), are

unreported but are set forth in Appendix B hereto at pages Bl -

B9. The earlier opinion of the Ninth Circuit concerning the

““mootness” herein is reported as Williams, et al. v. Alioto, et al.,

549 F.2d 136 (9th Cir. 1977), and is also set forth in Appendix

C hereto at pages Cl - C21. The original Findings of Fact and

Conclusions of Law together with the Preliminary Injunction

issued herein by the District Court are set forth in Appendix D

hereto at pages D1 - D14.

JURISDICTION

The judgment of the United States Court of Appeals for

the Ninth Circuit was entered on July 24, 1980, and amended

on August 29, 1980. No petitions for rehearing or for rehearing

en banc were sought, and this petition for certiorari is being

filed within 90 days of the July 24, 1980 entry of the original

judgment.?

This Court’s jurisdiction is invoked under 28 U.S.C. Sec-

tion 1254(1) and Rules 17(c) and 19.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Title 42 U.S.C. Section 1988 provides as follows:

“Section 1988. Proceedings in vindication of civil

rights

The jurisdiction in civil and criminal matters

conferred on the district courts by the provisions of

2See Appendix A.

.- od

this chapter and Title 18, for the protection of all

persons in the United States in their civil rights, and

for their vindication, shall be exercised and enforced

in conformity with the laws of the United States, so

far as such laws are suitable to carry the same into

effect; but in all cases where they are not adapted to

the object, or are deficient in the provisions necessary

to furnish suitable remedies and punish offenses

against law, the common law, as modified and

changed by the constitution and statutes of the State

wherein the court having jurisdiction of such civil or

criminal cause is held, so far as the same is not

inconsistent with the Constitution and laws of the

United States, shall be extended to and govern said

courts in the trial and disposition of the cause, and, if

it is of a criminal nature, in the infliction of punish-

ment on the party found guilty. - In any action or

proceeding to enforce a provision of sections 1981,

1982, 1983, 1985, and 1986 of this title, title IX of

Public Law 92-318, or in any civil action or proceed-

ing, by or on behalf of the United States of America,

to enforce, or charging a violation of, a provision of

the United States Internal Revenue Code, or title VI

of the Civil Rights Act of 1964, the court, in its

discretion, may allow the prevailing party, other than

the United States, a reasonable attorney’s fee as part

of the costs.”

In any action or proceeding to enforce a provision of

sections 1981, 1982, 1983, 1985, and 1986 of this

title, title IX of Public Law 92-318, or in any civil

action or proceeding, by or on behalf of the United

States of America, to enforce, or charging a violation

of, a provision of the United States Internal Revenue

Code, or title VI of the Civil Rights Act of 1964, the

court, in its discretion, may allow the prevailing

party, other than the United States, a reasonable

attorney’s fee as part of the costs.”

STATEMENT OF THE CASE

Commencing in late 1973, a vicious series of apparently

random killings and attempted killings took place on the streets

of San Francisco. These incidents have come to be known as

the “Zebra” murders. Between December 1973, and April

1974, twelve persons were murdered and six others were

wounded in this series of crimes. In each shooting a .32 caliber

handgun was the weapon used. All of the victims were

Caucasians. All the witnesses’ statements declared the killer(s)

to be black and male. The shootings all took place in the

evening hours, between six and ten p.m., at locations where

people were isolated. Several of these shootings occurred at or

near Municipal Railway transit stops.

The response of the San Francisco Police Department to

this grave assault on public safety and the general terror

thereby aroused was to inaugurate a program known as

“Operation Zebra.” This operation consisted of an intensive

investigation and search for the person or persons responsible

for these shootings. It was prompted by the fact that the

killings were increasing in frequency and the absence of any

evidence that the police investigatory techniques previously

utilized would lead to the apprehension of the killer(s).

The Operation Zebra search was based on three categories

of information: a compilation of physical data believed to

describe the killer(s); a summary of the modus operandi of the

killer(s); and two composite drawings reflecting the actual

appearance of the suspects. All this information was derived

from witnesses and surviving victums.

A series of orders were issued by the San Francisco Police

Department from April 17, through April 25, 1974 embodying

information about the Zebra killer(s), as discussed above, and

setting forth guidelines to police officers in effecting stops and

conducting pat searches pursuant to this operation. As a result

of Operation Zebra, 600 persons were stopped during its seven

days duration. So called “Field Identification Cards” were

compiled on 181 persons who met the Zebra criteria sufficiently

well enough to warrant further investigation as a result of these

stops.

Operation Zebra was commenced on April 17, 1974. On

April 19, 1974, respondents Joseph B. Williams, et al., applied

for a temporary restraining order before the United States

District Court for the Northern District of California to stop the

operation. The Court denied this motion. However, the Court

did issue an Order to Show Cause directing these petitioners to

appear on April 24, 1974 to respond to the allegations made by

the respondents in their complaint for injunctive relief.

Thereafter, on April 22, 1974, respondents Leo Bazile, et

al., also filed a complaint for injunctive and declaratory relief in

the United States District Court for the Northern District of

California to stop Operation Zebra.

Federal jurisdiction was originally invoked in these matters

under the civil rights jurisdiction of the District Court pursuant

to 28 U.S.C. Section 1343 and pursuant to the authority of 42

U.S.C. Sections 1981 and 1983, and 28 U.S.C. Sections 2201-

2202.

For all intents and purposes the parties and the District

Court treated these two actions as consolidated. A two-day trial

took place on April 24, and April 25, 1974, at the conclusion of

which the court issued its preliminary injunction pursuant to its

Findings of Fact and Conclusions of Law.3

On April 26, 1974, these petitioners applied for a stay of

the preliminary injunction before the District Court. This

application was denied. Thereafter, petitioners appealed the

3See Appendix D.

decision of the District Court granting the preliminary in-

junction to the United States Court of Appeals for the Ninth

Circuit.

On March 29, 1976, four defendants identified in a State of

California Superior Court criminal action as the Zebra killers

were convicted and sentenced to lengthy prison terms.

Thereafter, on January 25, 1977, the United States Court

of Appeals for the Ninth Circuit dismissed the petitioners’

appeal of the District Court’s preliminary injunction as “moot”

and vacated the judgment of the District Court.5

Subsequently, the District Court resumed jurisdiction over

the matter and granted an award of forty-five thousand dollars

in attorneys’ fees to the respondents under 42 U.S.C. Section

1988.6 Petitioners appealed this decision to the Ninth Circuit.

On August 29, 1980, the Court of Appeals filed its amended per

curiam opinion and certified said opinion for publication. The

Court of Appeals has held that the respondents were “pre-

vailing parties” under 42 U.S.C. Section 1988 on the grounds

that they secured a preliminary injunction,” notwithstanding the

facts that the propriety of that injunction was timely appealed

and that the respondents’ right to relief, if any, has never been

finally established. No permanent injunction ever issued.

There has been no sxttlement. There has been no consent

decree. There has been no determination on the merits of the

petitioners’ timely appeal.

4See Williams v. Alioto, 549 F.2d 136 at 142 (9th Cir. 1977).

5 See Appendix C.

6 See Appendix B.

7See Appendix A.

REASONS FOR GRANTING THE WRIT

THERE IS AN IMPORTANT QUESTION OF FEDERAL

LAW IN THIS CASE WHICH SHOULD BE DECIDED BY

THIS COURT

This case involves an award of attorneys’ fees pursuant to

42 U.S.C. Section 1988 wherein the petitioners contend that the

respondents are not “prevailing parties” within the meaning of

the statute. Review herein by the Supreme Court is sought

pursuant to Rule 17(c) on the grounds that the Ninth Circuit

has decided an important question of federal law which has not

been, but should be, settled by this Court, or the case below has

been decided in a way in conflict with applicable decisions of

this Court. The important question of federal law involved in

this petition is whether attorneys’ fees may be awarded in a civil

rights action which is not settled (and in which no consent

decree has been issued ) when a timely appeal has been held to

be moot due to a change in factual conditions and therefore no

decision is rendered on the merits of the appeal.

This question is important because exposure to liability for

costs (including attorneys’ fees) inflicts the same financial

harm, and has the same chilling effect on individuals charged

with protecting the public interest, as has exposure to financial

liability following a judgment on the merits. Such financial

jeopardy, and the attendant reluctance of public officials to do

their duty, should not be incurred where public officials have

acted lawfully and out of necessity. Certainly, to expose any

defendant to such costs without a meaningful right to appeal is

contrary to all notions of fair play and due process. Congress

cannot have intended this result. In this petition it is respect-

fully urged that the Ninth Circuit has misread this Court’s

analysis of 42 U.S.C. Section 1988. It is therefore necessary for

this Court to rule upon the application of this attorneys’ fees

section in actions such as the present one where the doctrine of

mootness has intervened to deprive litigants of their right to

appeal adverse and improper holdings of the District Courts.

THIS COURT HAS NOT HERETOFORE DETERMINED

THE APPLICABILITY OF 42 U.S.C. SECTION 1988 IN

CASES INVOLVING MOOTNESS ON APPEAL

The rationale of the Ninth Circuit in finding the respond-

ents herein to be “prevailing parties” is based chiefly upon this

Court’s holdings in two recent cases: Hanrahan v. Hampton,

US. , 100 S. Ct. 1987 (1980); and Maher v. Gagne,

US. , 100 S. Ct. 2570 (1980).8 Reliance upon these

decisions in this case is inappropriate in that they do not involve

the same, or even similar, issues as are at stake here.

Specifically, Hanrahan, supra, was a case in which this

Court disallowed an award of attorneys’ fees which had been

made after certain criminal defendants successfully sought

reversal of directed verdicts against them and also secured the

reversal of certain discovery orders. Although it is true, as the

Ninth Circuit points out, that a party need prevail only “on the

merits of at least some of [their] claims” to be a “prevailing

party” for purposes of 42 U.S.C. Section 1988,° it is also true

that the context in which this is said in the Hanrahan opinion,

supra, at 100 S. Ct. 1989 is that: “*. . . [I]t seems clearly to have

been the intent of Congress to permit such an interlocutory

award to a party who has established his entitlement to some

relief on the merits of his claims, either in the trial court or on

appeal.” Continuing, the Court also says: “... Congress in-

tended to permit the interim award of counsel fees only when a

party has prevailed on the merits of at least some of his claims.

For only in that event has there been a determination of the

8 See Appendix A at pages A3 and A4.

9See Appendix A. at page A3.

substantial rights of the parties, which Congress determined

was a necessary foundation for departing from the usual rule in

this country that each party is to bear the expense of his own

attorney.” [footnote omitted] This Court then reversed the

award of attorneys’ fees in the Hanrahan case.

Clearly, in the instant case there has been no determination

of the “substantial rights of the parties.” Here, the District

Court issued a preliminary injunction, which decision was

timely appealed. The Ninth Circuit ruled the issues raised by

the complaint and appeal to be moot and vacated the action of

the District Court. 1°

In the present case the inescapable fact is that the appellate

court made only one determination: there were no substantial

rights before it to adjudicate. Therefore, the only result in this

case consistent with the reasoning of Hanrahan, supra, is that

there is no basis for an award of attorneys’ fees. It must

accordingly be said that the Hanrahan case is not authority for

an award of attorneys’ fees in a case which is held to be moot

on appeal.

Likewise, the case of Maher v. Gagne, supra, provides no

authority for determining this action. Maher, supra, stands for

the proposition that a party nay, by a consensual agreement or

settlement, sufficiently achieve the ends of his litigation to be

considered a “prevailing party” under 42 U.S.C. Section 1988.

The petitioners do not dispute this proposition. However, there

is absolutely nothing consensual about a trial court judgment

which is properly appealed. There has been no determination

that these petitioners are incorrect in their claim that they acted

properly and within the law in all matters material to this

action. To allow them, on these facts, to suffer the imposition of

10 See Appendix C.

costs (attorneys’ fees) is tantamount to a declaration that the

mere fact of the filing of the original lawsuit itself is more

important than the legal merits of the suit. The absurdity and

injustice of such a result must be evident to all.

Although the Ninth Circuit has said in this case that the

respondents “did obtain a judicial determination that [the

petitioners] had acted unconstitutionally,”'! the petitioners

respectfully, but forcefully, disagree. The ultimate result of the

petitioners’ appeal to the Ninth Circuit was the vacating of the

“determination that [they] had acted unconstitutionally” and

mere silence on all other issues. '2

Therefore, petitioners find no similarity or guiding prin-

ciple in the Maher case, supra which authorizes or sustains the

judgment below in this matter.

11 See Appendix A at page A4.

12 See Appendix C.

iil

CONCLUSION

Neither counsel for the respondents in their pleadings

below, nor the United States Court of Appeals for the Ninth

Circuit in its opinion herein, have been able to predicate or

justify the award of forty-five thousand dollars in attorneys’ fees

in this case by citation of authority from this Court. This

important question is truly one of first impression in the

Supreme Court. Petitioners urge this Court to consider the

question and declare a rule of law for the guidance of all

federal courts in the implementation of the provisions of 42

U.S.C. Section 1988 and to prevent injustice in this case.

DATED: October 16, 1980.

Respectfully submitted,

GEORGE AGNOST

City Attorney

STEVEN A. DIAz

Deputy City Attorney

Attorneys for Petitioners

Joseph L. Alioto, et al.

Appendices

APPENDIX A

United States Court of Appeals

For THE NINTH CIRCUIT

—)

JOSEPH B. WILLIAMS AND

LEO BAZILE, et al., No. 78-2965

Plaintiffs-Appellees,

VS. D.C. Nos.

C-74-866-AJZ

JOSEPH L. ALIOTO, et al., C-74-867-AJZ

Defendants-Appellants

OPINION

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF CALIFOR-

NIA HONORABLE ALFONSO J. ZIRPOLI, PRESIDING

ARGUED AND SUBMITTED JULY 8, 1980.

Before: WRIGHT, KENNEDY and HUG,

Circuit Judges.

Per Curiam:

This is an appeal from a judgment of the district court

awarding attorneys’ fees to the appellees as prevailing parties in

their civil rights action against officials of the City of San

Francisco and officials of the Police Department. The appellees

in two consolidated actions challenged police practices, which

occurred from April 17, 1974 to April 25, 1974, known as

“Operation Zebra.” A series of unsolved murders had occurred

in San Francisco, and the San Francisco Police Department

initiated a special investigative procedure known as “Operation

Zebra” to attempt to identify and capture the killer or killers.

Police directives and memoranda authorized officers to stop

and frisk black males resembling two composite drawings and

having described physical characteristics, with no other in-

dication that they had engaged in or were engaging in criminal

activity. Over 600 persons were stopped and “pat searched” in

the course of the operation.

The plaintiffs in the two actions sought declaratory and

injunctive relief on behalf of black male persons who had been

stopped, or were subject to being stopped, pursuant to the

“Operation Zebra” practices. After an evidentiary hearing the

district court entered findings of fact and conclusions of law and

issued a preliminary injunction against the practices. One of the

conclusions of law was that the plaintiffs were entitled to

reasonable attorneys’ fees.

The police officials appealed the preliminary injunction.

Before the appeal was heard, four persons were identified as the

“Zebra” killers and were convicted and sentenced. The police

investigation of the “Zebra” killings ceased; consequently, this

court dismissed the appeal as moot and vacated the preliminary

injunction, Williams v. Alioto, 549 F.2d 136 (9th Cir. 1977). A

more complete statement of the facts is set forth in that opinion.

The appellees moved the district court to set the amount of

the attorneys’ fees. The district court reviewed the detailed

affidavits submitted by plaintiffs’ attorneys and heard argu-

ments from all parties. The district court entered in order

awarding $25,000 to the Bazile attorneys and $20,000 to the

Williams attorneys, with a recitation of findings supporting the

award. Judgment was thereafter entered on the award.

Appellants argue that because this court dismissed as moot

the appeal from the grant of the preliminary injunction, the

appelices were not “prevailing parties” under the Civil Rights

Attorney’s Fees Act of 1976 (the “Act”), 42 U.S.C. Section

1988. We conclude that by obtaining the preliminary in-

junction appellees “prevailed on the merits of at least some of

[their] claims.” Hanrahan v. Hampton, 48 U.S.L.W. 3780,

3781 (June 2, 1980)(per curiam). The preliminary injunction

prevented appellants from continued enforcement of their

Original guidelines, which is precisely the relief appellees

sought. Appellees succeeded on a “significant issue in litigation

which achieve[d]. . . the benefit the parties sought in bringing

suit.”” Sethy v. Alameda County Water District, 602 F.2d 894,

897-98 (9th Cir. 1979), cert. denied, 100 S.Ct. 734 (1980). See

also Nadeau v. Helgemoe, 581 F.2d 275, 278-79 ( Ist Cir. 1978).

Our previous dismissal of the appeal as moot and vacation of

the district court judgment does not affect the fact that for the

pertinent time period appellees obtained the desired relief,

upon findings by the district court that the original guidelines

were unconstitutional.

Fee awards are authorized in cases where a party prevails

through a settlement rather than by litigatiou::

Nothing in the language of Section 1988 condi-

tions the District Court’s power to award fees on full

litigation of the issues or on a judicial determination

that the plaintiff's rights have been violated.

Maher v. Gagne, 40 CCH S.Ct. Bull. P. B3605, B3613 (June 25,

1980). In the present case there is even more reason to award

attorneys’ fees, where appellees did obtain a judicial determina-

tion that appellants had acted unconstitutionally.

Appellants contend that because they enjoy good faith

immunity in an action for damages, they should likewise be

protected against an award of attorneys’ fees in the absence of

bad faith. Because appellants were sued in their official

capacities, their good faith does not bar an award of attorneys’

fees, as it would were the award to be paid by officials. See

Universal Amusement Co. v. Hofheinz, 616 F.2d 202, 204 n.1

(Sth Cir. 1980); Nadeau v. Helgemoe, 581 F.2d at 280; Pickett

v. Milam, 579 F.2d 1118, 1120-21 (8th Cir. 1978).

iil

The appellants argue that an award of attorneys’ fees

against them in their official capacities which will be paid by the

municipality cannot be made because the City of San Francisco

was not named as a party. At the time this suit was brought the

City of San Francisco was not considered a proper party under

Monroe v. Pape, 563 U.S. 167 (1961).1 However, the Court

held in Hutto v. Finney, 437 U.S. 678, 699 (1978), that

although the appellants were unable to sue a governmental

entity by name, the suit against the governmental officers in

their official capacities permitted an award of attorneys’ fees to

be paid by the governmental entity.?

The district court retained jurisdiction to award costs. The

original appeal being from an interlocutory order, the district

court retained jurisdiction to continue with other phases of the

case. See DePinto v. Provident Security Life Insurance Co. 374

F.2d 50, 51 n.2 (9th Cir. 1967). In addition, attorneys’ fees

under section 1988 are awarded as an item of costs, see Hutto v.

Finney, 437 U.S. at 695, and thus “will ordinarily be sought

only after litigation.” Knighton v. Watkins, 616 F.2d 795, 797

(Sth Cir. 1980). We dismissed only the appeal as moot in our

prior decision, not the entire action. Appellees were therefore

free to apply for attorneys’ fees in the district court. See Crowell

v. Mader, 62 L.Ed. 2d 701, 703 (1980).

The district court awarded the fees in the present case as

part of its original order, with the amount to be set later.

Claims for attorneys’ fees ancillary to the case survive inde-

pendently under the court’s equitable jurisdiction, and may be

heard even though the underlying case has become moot. See

Reiser v. Del Monte Properties Co., 605 F.2d 1135, 1140 (9th

Cir. 1979); Schmidt v. Zazzara, 544 F.2d 412, 414-15 (9th Cir.

1976).

The appeal from the grant of the preliminary injunction

was before this court when the Act was passed in 1976. The

Act applies to all cases pending on the date of its enactment.

Cases on appeal on the date of enactment are pending for

purposes of fee awards, see Hutto v. Finney, 437, U.S. at 694-95

n.23; Sethy v. Alameda County Water District, 602 F.2d at 897;

Molina v. Richardson, 578 F.2d 846, 854 (9th Cir.), cert.

denied, 439 U.S. 1048 (1978), thus the award of fees under

authority of the Act in this case is proper.

Considering all the circumstances of this case, we reject

appellants’ contention that a full evidentiary hearing was

required on the motion to set fees. Appellants were notified on

July 5, 1977, that the court intended to award fees. On October

21, 1977, appellants entered a stipulation that argument on the

motion be continued from November 7, 1977, to November 21,

1977, and that appellants would not request further factual

information from appellees, although further factual findings

by the district court could be requested. On November 10,

1977, appellants requested a continuance and permission to

conduct further discovery. In view of the stipulation and the

lateness of this request, the district court did not abuse its

discretion in relying on the submitted affidavits and oral

arguments in setting the fee awards.

The affidavits before the court were sufficiently detailed to

enable the court to consider all the factors necessary in setting

the fees. See Fed. R. Civ. P. 43(e); Dennis v. Chang, 611 F.2d

1302, 1308-09 (9th Cir. 1980). Some of the arguments

presen‘ed by appellants on appeal were argued to the district

court and considered by it in making the award. See Id. As to

those factois, a full evidentiary hearing would have added little.

With respect to the other claims we note that appellants

requested either further briefing or an evidentiary hearing.

Again, in light of the lateness of the request, the district court

properly denied the request and relied on the arguments

presented in appellants’ motion and at oral argument. We note

that after consideration of the affidavits and argument the

district court did substantially reduce the amount of fees

requested by appellees.

The district court adequately considered the requisite

factors as set forth by this court in Kerr v. Screen Extras Guild,

Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951

(1976), in setting the amount of the fees, and we find no abuse

of discretion. See Id. at 69. Cf., Ellis v. Cassidy, Nos. 79-4160,

78-2483 and 77-4009, slip op. at 3852 (9th Cir. June 20, 1980)

(remand proper where district court fails to consider Kerr

factors). The most important factors relied upon by the district

court in setting the amount in the present case are factors we

have cited approvingly in determining awards under section

1988. See Dennis v. Chang, 611 F.2d at 1308.

Finally, we reject appellants’ contention that the court

should have differentiated between persons actively involved in

the “Operation Zebra” program and others sued only because

of their official title. As the court made clear in Hutto v. Finney,

the present injunctive suit was, for all practical purposes,

brought against the City of San Francisco. Because the award

is against the appellants in their official capacities it will be paid

by the City. See Hutto v. Finney, 437 U.S. at 699-700; Pickett v.

Milam, 579 F.2d at 1121 n.4. There is therefore no need to

make such a determination.

We affirm the order of the district court awarding the

attorneys’ fees against the appellants in their official capacity.

Appellees are also entitled to a reasonable fee for their services

on this appeal. We deem it appropriate to remand to the

district court for a determination of the time spent, and fees to

be awarded, on this appeal.

AFFIRMED.

' The Court has since recognized municipalities as “persons” that

may be sued under Section 1983. See Monnell v. New York City

Department of Social Services, 436 U.S. 658 (1978).

2 Appellants argued at oral argument that the rationale of Owen

v. City of Independence, 48 U.S.L.W. 4389 (April 14, 1980), pre-

cluded an award of attorneys’ fees against the individual defendants

unless bad faith was proved. However, the Court in Owen holds that

the good faith of the officers is not defense to the liability of the city as

it is to the liability of the individuals in their individual capacity. An

award of attorneys’ fees in this case, which is to be paid by the city,

not the individuals, is consistent with Owen.

3We note that appellees have not identified any one of the

named defendants as not being involved in some way in the oper-

ation.

APPENDIX B

UNITED STATES DISTRICT COURT

FoR THE NORTHERN DisTRICT OF CALIFORNIA.

LEO BAZILE, et al.,

Plaintiffs, | No. C-74-0867 AJZ

and

VS. No. C-74-0866 AJZ

Consolidated Actions

JosePH L. ALioTo, et al.,

Defendants.

ORDER AWARDING ATTORNEY’S FEES

This matter having come before the court pursuant to

motion regularly filed, the court having considered the briefs

submitted by the parties and heard the arguments of counsel,

the court finds as follows:

1. When the preliminary injunction was entered in this

case on April 25, 1974, the court indicated in the findings and

conclusions that “this is an appropriate case for the award of

reasonable attorney’s fees, to be fixed by this Court upon

application of Plaintiffs.”

2. Since the preliminary injunction was entered, the

Supreme Court decided Alyeska Pipeline Service Company y.

Wilderness Society, 421 U.S. 240 (1975), the instant case was

appealed to the United States Court of Appeals, and Congress

passed the Civil Rights Attorney’s Fees Awards Act of 1976, as

reflected in 42 U.S.C. Section 1988.

3. The Ninth Circuit Court of Appeals, in a decision dated

January 25, 1977, and by way of mandate filed in this court

March 4, 1977, ordered that the appeal of the instant case was

dismissed (as moot) and that the judgment of the district court

was vacated.

4. Since the opinion and mandate of the court of appeals

leave in doubt the question whether this court has any contin-

uing jurisdiction to award attorney's fees, the mandate must be

read in conjunction with the opinion of the court of appeals.

See, Ogden v, United States, 323 F.2d 818, 822 (9th Cir, 1963).

5, The mandate of the court of appeals and the opinion of

that court address only the “judgment of the district court”

(which made no mention of attorney’s fees) and dismiss the

appeal. This court concludes, therefore, that the opinion and

mandate of the court of appeals do not deprive this court of

continuing jurisdiction to award attorney’s fees.

6. The instant case can be said to have been “pending” at

the time the Civil Rights Attorney’s Fees Awards Act of 1976

was passed. Stanford Daily v. Zurcher, No. 74-3212 (9th Cir.,

Feb. 2, 1977). Moreover, the plaintiffs herein may be said to

have “prevailed” within the meaning of the Civil Rights

Attorney’s Fees Awards Act of 1976 in that the litigation served

“as a catalyst to effect change and thereby [achieved] a

valuable public service,” thereby making appropriate an award

of fees “even though the suit never [proceeded ] to a successful

conclusion on the merits.” Wilderness Society v. Morton, 495

F.2d 1026, 1034 (D.C. Cir. 1974) (en banc), rev'd on other

grounds sub nom. Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240 (1975); see also S. Rep. No. 94-1011,

Cong., 2d Sess. 5 (1976); H.R. Rep. No. 94-1558, 2d Sess. 7-8

(1976).

7. Plaintiffs are entitled to an award of reasonable

attorney’s fees in connection with all district court proceedings,

pursuant to the provisions of the Civil Rights Attorney’s Fees

Awards Act of 1976.

In accordance with the above-enumerated findings, IT IS

THEREFORE ORDERED as follows:

1, Judgment shall be entered dismissing this action;

2. Plaintiffs’ attorneys are entitled to reasonable

attorney’s fees in connection with:

a. all aspects of the proceedings in this court

culminating in entry of the preliminary injunction;

b. all aspects of the proceedings in this court

leading to modification of the preliminary injunction;

c. all other aspects of the proceedings in this court

related to an award of reasonable attorney's fees.

3. The parties are directed to attempt to reach an

agreement within 30 days of the date of this order with

regard to the amount of the costs and fees to be awarded:

4. If the parties fail to agree within 30 days, plaintiffs

may apply to this court for an order fixing the amount of

the fees; and

5. This court retains jurisdiction to determine that

costs and reasonable attorney’s fees are paid in accordance

with the orders of the court.

Dated: July 5, 1977

/s/ ALFONSO J. ZIRPOLI

United States District Judge

UNITED STATES DISTRICT COURT

For THE NORTHERN District OF CALIFORNIA

sat, 7

Leo BAZILE, et al.,

Plaintiffs,

VS. ‘

Joseru L. ALIoTo, et al.,

Defendants.

JoserH B. WILLIAMS, et al.,

Plaintiffs,

VS. ‘

Joseru L. ALIoTo, et al.,

Defendants.

ORDER FIXING THE AMOUNT

OF ATTORNEY'S FEES

Plaintiffs’ motion for an order fixing the amount of reason-

able attorney’s fees for all aspects of the District Court proceed-

ings in this matter came on regularly for hearing on November

21, 1977, after the parties failed to agree upon a settlement of

the fee amount to be awarded.

The court has considered the briefs of all parties, plainuffs’

attorneys’ affidavits, the files and records of the court, the

court’s own observation of the conduct of this litigation by

plaintiffs’ counsel, and having heard argument in connection

with the fee amount to be awarded, the court finds as follows:

1. Eight attorneys for plaintiffs Leo Bazile et al. have

sought to share in the fee award in the Bazile case. The fees

awarded to the Bazile attorneys will be donated by counsel to

the Northern California Police Practices Project. The eight

attorneys are Amitai Schwartz, Anthony G. Amsterdam, Jer-

ome B. Falk, Jr., Stanley J. Friedman, Paul Halvonik, Luwell

Johnston, Joseph Remcho, and Cecil Poole.

2. Four attorneys for plaintiffs Joseph B. Williams, er al.

have sought to share in the fee award in the Williams case. The

fees awarded will be divided among the four attorneys, Ben-

jamin James, Jr., Cecil McGriff, Garfield Steward, and Nathan-

iel Cooley.

3. The court has wide discretion in fixing the fee amount to

be awarded, and relies upon the decision in Stanford Daily v.

Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974) aff'd 550 F.2d 464

(9th Cir. 1977), cert. granted 46 L.W. 3182 (U.S., October 3,

1977) as its principal guide in exercising its discretion in this

case.

4. The court has considered the amount of time reasonably

devoted by plaintiffs’ attorneys to the litigation; the value of the

time in light of the experience, reputation and ability of each set

of plaintiffs’ attorneys; the quality of the attorneys’ presentation,

and the important constitutional rights that were vindicated in

these cases. These factors have been considered in connection

with the court’s opportunity to view the attorneys’ work during

the course of the litigation and the information provided by the

parties.

5. Some of the hours expended by both sets of attorneys is

unreasonable in light of the issues presented, but the court

believes it is appropriate to treat each set of attorneys separately

for purposes of the fee award, and to balance necessary and

unnecessary hours in computing an average overall hourly rate

in order to reach a fee amount which is reasonable. The court

recognizes that defendants had numerous attorneys assigned to

this case, including members of the San Francisco Police

Department’s Legal Office.

6. The court has also considered the customary fee for

similar work, recognizing that $50 per hour was awarued in the

Stanford Daily case in 1974, for time devoted in 1971, 1972,

and 1973, an amount which defendants concede would be

appropriate.

7. The attorneys in the Bazile case have claimed 460.25

hours. The court believes that some of the hours claimed were

unnecessary, but that an average hourly rate of approximately

$50 is a reasonable rate which balances all of the factors,

including the fact that some hours were unnecessary, and that

some attorneys could command a higher rate than others. The

court further believes that $2,000 is an appropriate premium

which takes into account the contingent nature of the com-

pensation and the quality of the attorneys’ work. The total sum

of $25,000 is reasonable.

8. The attorneys in the Williams case have claimed 431.5

hours. The court believes that some of the hours claimed were

unnecessary, but that an average overall hourly rate of approxi-

mately $45 is a reasonable rate which balances all of the

factors, including the fact that some hours were unnecessary,

and that some attorneys could command a higher rate than

others. The court further believes that $1,000 is an appropriate

premium. The total sum of $20,000 is reasonable.

In accordance with the above enumerated findings, IT IS

THEREFORE ORDERED as follows:

1. Plaintiffs’ counsel in Bazile v. Alioto, No. C-74-0867

AJZ, shall recover from defendants the sum of $25,000 as

reasonable attorneys’ fees for all aspects of the District Court

proceedings in this litigation, to be donated to the Northern

California Police Practices Project.

2. Plaintiffs’ counsel in Williams v. Alioto, No. C-74-0866

AJZ, shall recover the sum of $20,000 as reasonable attorneys’

fees for all aspects of District Court proceedings in this litiga-

tion, to be divided among the attorneys who submitted affida-

vits to the court.

/s/ ALFONSO J. ZIRPOLI

United States District Judge

DATED: 4-17-78

APPENDIX C

No. 74-2149

Wnited States Court of Appeals

For THE NINTH CIRCUIT

Jan. 25, 1977

JOSEPH B. WILLIAMS AND LEO BAZILLE (sic), et al.,

Plaintiffs-Appellees,

VS.

JosePH L. ALIOTO, et al.,

Defendants-Appellants.

An order of the District Court of the Northern District of

California, Alfonso J. Zirpoli, J., preliminarily enjoined officials

of a municipal police department from continuing certain

practices of “Operation Zebra,” a program involving stopping,

frisking, and questioning black males. Defendants appealed.

The Court of Appeals, Trask, Circuit Judge, held that, by

reason of convictions and cessation of the homicides, the appeal

was moot.

Appeal dismissed, and judgment of the District Court

vacated.

Before TRASK and GOODWIN, Circuit Judges, and

BOHANON, * District Judge.

* The Honorable Luther Bohanon, Senior United States District

Judge for the Northern, Western and Eastern District of Oklahoma,

sitting by designation.

TRASK, Circuit Judge:

This is an appeal from an order of the district court of the

Northern District of California that preliminarily enjoined

officials of the San Francisco Police Department from contin-

uing certain practices of “Operation Zebra,” a program in-

volving the stopping, frisking, and questioning of black males

who resembled an unapprehended murderer. Jurisdiction to

hear this appeal is based upon 28 U.S.C. Sections 1291,

1292(a)(1). Because there is no longer a case or controversy

under Article III of the Constitution, we dismiss the appeal as

moot and vacate the judgment of the district court.

Between December 1973 and April 1974, a series of

unsolved murders and attempted murders terrorized the City of

San Francisco. All 17 victims were white; witnesses and

surviving victims described the assailant or assailants as black,

male, and 20 to 30 years of age. No apparent motive existed

for the shootings, which occurred during the evening hours at

various locations in the City.1 According to the statements of

some city officials, tensions were developing that created a

danger of racial conflict and violence.

The San Francisco Police Department initiated a special

investigation of the crimes, assigning the letter “Z” and the

code name “Zebra” to the shootings. Because of the failure of

traditional, although intensified, law enforcement techniques to

1 For convenience, this opinion generally will discuss the murder-

er or murderers in the singular. During the investigation, law

enforcement officials did not know how many people were responsible

for the shootings. At times, police officials referred to one killer, but

on other occasions they discussed several assailants. On March 29,

1976, four persons were convicted of these crimes after a jury trial in

the Superior Court of the County of San Francisco, California. People

v. Moore, No. 88244 (Super. Ct. Cal. 1976).

apprehend the murderer, the Department decided to imple-

ment a saturation campaign designed to identify and capture

the killer. On April 17, 1974, Captain Taylor issued an

intradepartmental memorandum describing the nature of “Op-

eration Zebra.” Ail officers on patrol were authorized to “stop

those persons who fit the description of the suspects, making a

pat search of their person for possible weapons, [after which] a

Field Interrogation Card shall be completed.” Plaintiffs’ Exhib-

it No. 1. The description or “profile” consisted of two parts.

First, two composite sketches of the suspect prepared from

eyewitness descriptions were included in the profile. Second,

Taylor’s directive supplemented these drawings with a general

description of the “Zebra killer” and his modus operandi:

“These murders have been committed by:

One or two Black males

20 to 30 years old

5 foot 8 to 6 foot

Slender to medium build

On foot or in a passenger vehicle

Armed with a 32 ca. automatic between the hours of

2000 to 2300.” Id.

The directive did not indicate that the officers were expected to

consider a person’s behavior as a factor in deciding whether to

stop him.

During the period from April 18, 1974, to April 23, 1974,

police officials issued several more directives relating to Oper-

ation Zebra. An April 18 verbal order by Captain Barca to a

special Operation Zebra detail and two written orders from

Police Chief Scott, dated April 19 and April 22, created some

confusion over whether the Operation Zebra frisks were

mandatory or discretionary. All three orders indicated that

stops could continue being made on the sole basis of resem-

blance to the profile, however. An April 23 memorandum from

Barca to the special Zebra Command stated:

“From now on, be more selective when making

stops. Make them when the individual [not only

resembles the profile but] is acting, or appears to be,

out of the ordinary.” Plaintiffs’ Exhibit No. 7.

No evidence indicates that this directive applied to ordinary

patrol officers, a much larger group.

On April 25, 1974, Chief Scott issued another order, the

“Revised Zebra Guidelines,” directed to the entire Police

Department and superseding prior oral and written instructions.

With some additions, the revised guidelines, like earlier memo-

randa, contained a list of the suspect’s physical characteristics

and modus operandi, and referred officers to the composite

drawings of the killer. The guidelines also contained detailed

provisions regulating the nature of contacts, stops, police con-

duct during stops, frisks, and frisk procedures. In its section on

stops, the guidelines provided a “list [containing] ... some

factors which—alone or in combination—may be sufficient to

establish ‘reasonable suspicion’ for a stop.” Defendants’ Exhib-

it E at 3 (emphasis in original). These factors included, inter

alia, the suspect’s appearance (“Does he generally fit the

description of the person wanted for the particular offense being

investigated?”), the time of day and area of the stop, the

officer’s prior knowledge and source of information about the

suspect, and the suspect’s pattern of conduct (“Does the

person’s conduct resemble the pattern of conduct of modus

operandi followed in the Zebra assaults?”). Jd. at 3-4. The

guidelines cautioned that an officer could make a stop only on

the basis of specific, articulable facts which justified him in

believing that a crime had been committed by the person

stopped.2

2 In pertinent part, the guidelines stated:

“Basis for a Stop. If an officer reasonably suspects

that a person has committed, is committing, or is about to

commit any crime, he has the authority to stop that person.

(footnote continued)

The guidelines stated that frisks were discretionary: “A

law enforcement officer may frisk any person whom he has

stopped when the officer reasonably suspects that the person is

carrying a concealed weapon or dangerous instrument and that

a frisk is necessary to protect himself or others.” Defendants’

Exhibit E at 5-6. Factors which alone or in combination

justified a frisk included the person’s appearance (‘Do his

clothes bulge in a manner suggesting the presence of an object

capable of inflicting injury?’”’), his actions, the officer’s prior

knowledge about the suspect, and the time of day and location

of the stop. Jd. at 6. The guidelines did not indicate that a frisk

could be made on the sole basis of the suspect’s resemblance to

the composite drawings.

On April 19, 1974, and April 22, 1974, several days before

the issuance of the revised guidelines, plaintiffs brought class

actions seeking declaratory and injunctive relief from alleged

Fourth Amendment violations of the Zebra program. They

brought the actions on behalf of all black males who were

stopped or subject to being stopped pursuant to the directives.

For purposes of an evidentiary hearing and a ruling on the

motions for declaratory and injunctive relief, the court consoli-

dated the cases.

(footnote continued from previous page)

He may exercise this authority in any place that he has a

right to be. Both pedestrians and persons in vehicles may

be stopped.

“Reasonable Suspicion. The term ‘reasonable suspi-

cion’ is not capable of precise definition; it is more than a

hunch or mere speculation on the part of an officer, but less

than the probable cause necessary for arrest. It may arise

out of a contact, or it may exist prior to or independently of

a contact. Reasonable suspicion has been defined as a

combination of specific and articulable facts, together with

reasonable inferences from those facts, which in light of

the officer’s experience, reasonably justify believing that

the person to be stopped had committed, was committing,

or was about to commit a crime.”

On April 25, 1974, shortly after the promulgation of the

revised guidelines, the district court ended its evidentiary

hearing, entered its findings of fact and conclusions of law, and

issued a preliminary injunction. In its findings of fact, the court

stated that the directives and memoranda issued between April

17, 1974, and April 22, 1974, were similar in their authorization

“that officers stop black male individuals physically resembling

two composite drawings... and having other general physical

characteristics [described in the directives], although such

individuals exhibited no other characteristics or activites that

could lead a reasonable officer to believe that the particular

individual had engaged in or was presently engaging in crimi-

nal activity.”C.T. at 91-92.3 As to the April 25 revised

guidelines, the court found that, despite their detailed provi-

sions regulating stopping and frisking, they continued to “‘au-

thorize a forcible stop on no more than a determination that the

subject ‘fit{s] the description of the persons wanted’ for the

Zebra slayings ....”C.T. at 93. The court also observed that in

the eight day period from April 17 to April 25, over 600 black

males were stopped pursuant to Operation Zebra.

The court concluded that “(t]he forcible stoppings of

individuals [pursuant to both the original Zebra directives and

their successive modifications] upon the ground of resemblance

to the suspect... and portrayed in the composite drawings...

without additional reliable evidence which, judged objectively,

presents sufficient indicia of reliability to warrant a reasonable

police officer in concluding that the particular individual

stopped has committed or is committing a criminal offense,

violates the Fourth and Fourteenth Amendments to the Con-

stitution of the United States.” C.T. at 95. It also held that the

revised guidelines of April 25, “to the extent that they continue

3The court noted that the April 23 directive to the Zebra

Command limiting “the class of persons subject to stop to an

individual who ‘is acting, or appears to be, out of the ordinary,’ ” had

not been issued to the larger number of ordinary patrol officers, who

continued to operate under the prior instructions. C.T. at 92.

to authorize and direct the forcible stop of large numbers of

black male persons who fit the genera! description contained

therein and in the aforesaid composite drawings without addi-

tional reliable evidence” giving a police officer reasonable

suspicion to conclude that an individual has committed a crime,

were unconstitutional. Jd. The court held that the pat-down

searches were unconstitutional because “the stoppings are

unconstitutional... and... the pat-down searches are made

without reasonable grounds to believe that the particular

person patted down is armed and dangerous.” Jd. (citations

omitted. )

The preliminary injunction enjoined the San Francisco

Police Department from “‘[f]Jorcibly stopping on the street any

person on the ground that such person appears to be within the

so-called ‘profile’ of the suspected ‘Zebra’ killer unless other

independent evidence (such as the conduct of the suspect)

known to the officer create a reasonable suspicion that such

person had committed or is committing a crime.” C.T. at 100.

It also enjoined pat-searching and the preparation of field

interrogation cards in the absence of similar independent

evidence.

On April 26, 1974, after the district court denied their

motion for a stay of the injunction pending appeal, defendants

filed a notice of appeal to this court. The substantive issue on

appeal is whether Operation Zebra violated the Fourth Amend-

ment prohibition against unreasonable searches and seizures.

As a threshold matter, however, we must determine whether

this issue is moot.

[1,2] The Supreme Court has stated that the duty of a

federal court “is to decide actual controversies by a judgment

which can be carried into effect, and not to give opinions upon

moot questions or abstract propositions, or to declare principles

or rules of law which cannot affect the matter in issue in the

case before it.” Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132,

133, 40 L.Ed. 293 (1895). The inability of federal courts “to

review moot cases derives from the requirement of Article III of

the Constitution under which the exercise of judicial power

depends upon the existence of a case or controversy.” Liner v.

Jafco, Inc., 375 U.S. 301, 306 n.3, 84 S.Ct. 391, 394, 11 L.Ed.2d

347 (1964). “Simply stated, a case is moot when the issues

presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” Powell v. McCormack, 395

U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969).4

Two events have raised the possibility that the appeal in

the present case is moot. On April 25, 1974, shortly before the

issuance of the injunction, the San Francisco Police Department

promulgated “Revised Zebra Guidelines” which appellants

contend corrected any constitutional infirmities in the earlier

directives. Some testimony by Police Chief Scott suggested

that, in addition to similarity to the profile and the physical data

range, the April 25 directives required officers to have inde-

pendent evidence of other conduct before they could make an

4 The requirement of a “case or controversy” applies to an action

for declaratory and injunctive relief, as does the “repetition/evasion”

exception to the mootness doctrine, discussed infra. Super Tire

Engineering Co. v. McCorkle, 416 U.S. 115, 94S.Ct. 1964, 40 L.Ed. 2d

1 (1974); 28 U.S.C. Section 2201.

Operation Zebra stop.5 Appellants argue that this additional

requirement gave police officers reasonable Suspicion for

Fourth Amendment purposes when they stopped citizens.

Similarly, during the hearing the court suggested that the

revised guidelines of April 25 were more restrictive than the

preliminary injunction proposed initially by appellees. This

5 Police Chief Scott testified:

“THE COURT: Are you telling us that in addition to the

profile and the resemblance of the individual to the profile,

that in order to stop now, you are asking the officers to

have independent evidence of other conduct?

“THE WITNESS: Yes, sir, | would say that something

extra, something else—right.” R.T. at 240. During cross-

examination, Scott stated:

“Q. Let me ask you this, Chief. Did you intend by these

revised guidelines to do anything new or different in your

search for the Zebra killer?

“A. Yes, I would say that my intention would be to

probably have the men have a little more substance or

reason for making stops in this particular Zebra case. In

other words, just as Chief Barca promulgated his order,

when we make stops, we want to have a little bit more

than just the composite picture, the profile. And I see

nothing wrong with it.” R.T. at 259.

6 During a discussion with the City Attorney, the court stated:

“THE COURT: I have before me the proposed prelimi-

nary injunction, I have just read these proposed guidelines.

I find that from the point of view of the police and law

enforcement, these proposed provisions of the preliminary

injunction appear to be even more liberal than the guide-

lines. The only thing wrong with the guidelines is the fact

that they use the word ‘Zebra.’ Now, just reflect on this

proposed preliminary injunction. This proposed prelimi-

nary injunction is restricted to forcible stopping, forcibly

stopping. Now, don’t you think that we could reflect upon

this for a moment and we could come to an under-

standing? Wouldn't the City Attorney be better off if he

were to consent to the entry of this particular preliminary

(footnote continued)

10c

evidence supports the argument that by April 25, 1974, the

Police Department voluntarily had remedied any constitutional

defects in its behavior, and that, since questions no longer

existed about the constitutionality of the Zebra program, the

district court issued an injunction in a controversy that had

ended.

Even more important, on March 29, 1976, four defendants

identified in a State of California Superior Court criminal action

as the Zebra killers were convicted and sentenced to lengthy

prison terms.” No information suggests that the Police Depart-

(footnote continued from previous page)

injunction, in light of the guidelines that have now been

submitted? These guidelines, in my view, constitute a

possibly greater encroachment than the preliminary in-

junction is.

“MR. O'CONNOR: If I may respond, Your Honor?

“THE COURT: I mean, these guidelines constitute a

lesser encroachment than the preliminary injunction. |

think the guidelines are more liberal and in the greater

interest of the people than the preliminary injunction is.

The only difference is that this happens to be entitled

‘Zebra.’ That’s the fact that we are confronted with at the

moment.” R.T. at 262-63.

In a discussion with Deputy City Attorney Agnost about

the need for an injunction, the court stated:

“MR. AGNOST: Well, the issue before the Court, Your

Honor, is whether or not a preliminary injunction should

issue at this time,

“THE COURT: I think it should, in the light of the prior

history. I don’t think that this is....And it does not

reflect on the Police Department if it does, because the

Police Department has already agreed, not only to do

everything that any injunction of the Court would call for,

but they have done so before any order of the Court, and

they have gone further than any order of the Court;

because they have established and are providing adequate

guidelines for not only forcible stopping but for any type of

approach situation.” R.T. at 265-66.

7 People v. Moore, No. 88244 (Super. Ct. Cal. 1976).

lle

ment still is investigating the Zebra murders, or that it is

making stops pursuant to Operation Zebra. Under a straight-

forward application of the case or controversy requirement, the

cessation of the mass murders, the termination of Operation

Zebra, and the conviction of the Zebra killers appear to have

divested the parties of any legally cognizable interest in the

constitutional issues engendered by the stops and frisks. Hence,

any opinion by this court would seem to be advisory only.

[3] The general principles of mootness contain an impor-

tant exception, however, which we must address before holding

that this appeal is moot. In Southern Pacific Terminal Co. v.

ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310

(1911), the Supreme Court stated that its jurisdiction “ought

not to be, as [it] might be, defeated, by short term orders,

capable of repetition, yet evading review...” This doctrine

has been used frequently in the last 60 years and applies to

court orders and injunctions similar to that involved in the

instant case. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539,

96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Carroll v. President and

Commissioners, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325

(1968).

[4] The first aspect of the repetition/evasion exception

involves a determination of the possibility of repetition of the

challenged law or conduct. When events have permanently

destroyed any possibility of repetition, the case is moot. Board

of School Commissioners v. Jacobs, 420 U.S. 128, 129, 95 S.Ct.

848, 43 L.Ed.2d 74 (1975); DeFunis v. Odegaard, 416 U.S. 312,

317, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). Similarly, when

the chance of repetition is remote and speculative, there is no

jurisdiction. SEC v. Medical Committee for Human Rights, 404

U.S. 403, 406, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972); Hall v.

Beals, 396 U.S. 45, 49, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969).

“The necessary determination is that there exists some cogni-

zable danger of recurrent violation, something more than the

mere possibility which serves to keep the case alive.” United

States v. W. T. Grant Co., 435 U.S. 629, 633, 73 S.Ct. 894, 898,

12c

97 L.Ed. 1303 (1953). This requirement would not be satisfied

“if subsequent events made it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.”

United States v. Concentrated Phosphate Export Ass’n, 393 U.S.

199, 203, 89 S.Ct. 261, 264, 21 L.Ed.2d 344 (1968).

[5] The evasion branch of the test is fulfilled when “the

challenged action was in its duration too short to be fully

litigated prior to its cessation or expiration...” Weinstein v.

Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350

(1975). The case should be within a class normally incapable

of appellate review because of the lapse of time. See Roe v.

Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973);

Dunn v. Blumstein, 405 U.S. 330, 333, n.2, 92 S.Ct. 995, 31

L.Ed.2d. 274 (1972). In making its decision on evasion, a court

examines a variety of factors such as the probability that a

subsequent suit challenging the action will be brought and the

likelihood that it will reach appellate review. See DeFunis v.

Odegaard, supra, 416 U.S. at 319, 94 S.Ct. 1704.

[6,7] Applying this doctrine to the present case, we hold

that the April 25 revised guidelines did not moot this legal

action. Even if they did correct constitutional infirmities in the

earlier directives, the April 25 guidelines did not end the

controversy or divest the district court of the power to grant an

injunction. Between April 17 and April 25, police officials

issued at least six directives relating to the Zebra program. On

this proven record of almost one new order per day, there was

no reason for the court to conclude that new, and possibly

contradictory, pronouncements might not be issued within the

next week. In fact, the guidelines themselves suggested that

they could be revised easily, and that the police officers could

revert to their prior, allegedly unconstitutional, practices. They

provided that they could be “modified or disregarded because

of special circumstances” upon Chief Scott’s authorization,

Defendants’ Exhibit E at 7, and the court found that “absent an

order of this Court to the contrary, they may be modified or

revoked at any time.” C.T. at 93. Just as important, there still

13c

existed questions about whether these revised guidelines even

corrected the constitutional problems of the earlier directives.

Portions of Scott’s testimony suggested that the revised guide-

lines might permit stops on the same challenged basis as the

initial directives. R.T. at 290. The district court, moreover,

found that the April 25 guidelines continued to permit stops on

no more than a determination that the suspect resembled the

composite drawings and other physical characteristics of the

Zebra killer.

Although these factors do not demonstrate the uncon-

stitutionality of the April 25 guidelines, they do show that the

challenged police behavior was very capable of repetition,

either through explicit rejection of the new guidelines or by a

continuation of criteria used in making earlier stops. “It is

settled that an action for an injunction does not become moot

merely because the conduct complained of has terminated, if

there is a possibility of recurrence, since otherwise the defen-

dants ‘would be free to return to “[their] old ways.” ’” Allee v.

Medrano, 416 U.S. 802, 810-11, 94 S.Ct. 2191, 2198, 40

L.Ed.2d 566 (1974) (citations omitted). The defendants have

a heavy burden of showing that they will not revive their

challenged conduct, and mere disclaimers are not satisfactory.

United States v. W.T. Grant Co., supra, 345 U.S. at 633, 73

S.Ct. 894. In the present case, so many questionable circum-

stances existed that this burden was not met.

[8] Even if the March 29, 1976, convictions ended any

chance that Operation Zebra would be used again to apprehend

more Zebra killers, they did not destroy the possibility of a

recurrence of Zebra-like guidelines involving the same chal-

lenged conduct and constitutional questions of Williams v.

Alioto.® Scott testified that, presented with another series of

8 The repetition/evasion exception does not require a repetition

of the exact law or behavior. The focus is on whether the same issues,

arising from a repetition of a similar law or action, are likely to recur.

See Southern Pacific Terminal Co. v. ICC, supra, 219 U.S. at 515, 31

S.Ct. 498.

14c

unsolved homicide, “I would probably issue the same order we

are talking about now.” R.T. at 253. In an effort to show that

the Zebra program was not an extraordinary departure from

normal procedures, he testified that the Zebra guidelines repre-

sented prevailing departmental policy and police behavior, and

that “when it comes to matters of law and procedures, would

apply to any other case or any other investigation or patrol

procedures.” R.T. at 255. With the development of techniques

ensuring a high degree of accuracy, the use of composite

sketches and physical data ranges has become an increasingly

familiar aspect of law enforcement efforts, and can be expected

to continue. 7

[9,10] We hold that the convictions and the cessation of

the homicides have mooted this appeal, however. A mere

speculative possibility of repetition is not sufficient. There must

be a cognizable danger, a reasonable expectation, of recurrence

for the repetition branch of the mootness exception to be

satisfied. We are unable to find this required possibility of

repetition. Despite Scott’s assurances that the Zebra program

represented departmental policy, everyone else involved in the

case viewed the program as an extraordinary effort to appre-

hend a mass murderer. Indeed, the program raised serious

constitutional questions justifying an action for declaratory and

injunctive relief. The likelihood that such a program will be

used in the future is incalculable. Perhaps if the City were

confronted with another series of unsolved homicides that

frustrated normal investigative techniques, a large-scale pro-

gram of stops, frisks, and questioning might reappear. As Chief

Scott stated, the Police Department might again use Zebra-like

guidelines in a similar situation. But the relevant question is: Is

this situation likely to arise? Although we can imagine its

recurrence, we cannot consider it more than a speculative

possibility.

{11] The reasonable likelihood that challenged conduct

or laws will recur is not enough to fulfill this segment of the

repetition/evasion exception. The disputed action mst be

~~ aoe

1Sc

likely to affect again the litigants in the original lawsuit. In class

actions, the repetition need occur as to some of either the

named or unnamed plaintiffs. Sosna v. Iowa, 419 U.S. 393, 95

S.Ct. 553, 42 L.Ed.2d 532 (1975). In the present case, even in

the remote event that Zebra-like guidelines recurred, it is

unlikely that they would burden any of the plaintiffs. Although

there are numerous named and unnamed plaintiffs, this number

is small as compared to the entire population of San Francisco.

It is probable that new guidelines would focus on a new class,

such as white males or black females, and thereby make it

impossible for the present plaintiffs to be affected by their

recurrence.

The Supreme Court has found mootness in factual situ-

ations that were equally unlikely to recur. There was mootness

in Hall v. Beals, supra, 396 U.S. at 49, 90 S.Ct. at 202, where

“appellants will face disenfranchisement in Colorado in 1972

only in the unlikely event that they first move out of the State

and then re-establish residence there within two months of the

presidential election in that year.” Similarly, in Preiser v.

Newkirk, 422 U.S. 395, 95 S.Ct. 233, 45 L.Ed.2d 272 ( 1975),

the Court dismissed a prisoner’s action challenging his transfer

without hearing or explanation from a medium security prison

to a maximum security prison after a showing that he had

returned to the medium security prison. The Court found that

“[a]ny subjective fear [the plaintiff] might have entertained of

being again transferred, under circumstances similar to those

alleged in the complaint . . . [is] indeed remote and speculative

...” Id. at 402-03, 95 S.Ct. at 2335.

We have held that a challenge to extraordinary law

enforcement actions is moot if the state of emergency has

ended, and if both the emergency situation and the allegedly

unlawful police actions are extremely unlikely to repeat them-

selves. In Halvonik v. Reagan, 457 F.2d 311 (9th Cir. 1972),

the State of California promulgated loitering and assembly

regulations in response to several riots and acts of violence that

l6c

occurred in the City of Berkeley. Order was soon restored,

however, and the disputed regulations were rescinded. The

court found that a lawsuit challenging the regulations was moot

because of the unlikelihood that comparable turmoil and

regulations would occur in the City. Jd. at 113-14. Similarly, in

Wilson v. Webster, 467 F.2d 1282 (9th Cir. 1972), the termina-

tion of several weeks of campus unrest and the revocation of an

ordinance designed to deal with the turmoil mooted a suit

against county law enforcement officials. The court found that

further campus riots were improbable. See also Taylor v.

McGowan, 412 F.Supp. 1094 (C.D. Cal. 1975). These deci-

sions suggest that states of emergency and the responses they

trigger do not fit readily into the repetition/evasion exception to

the mootness doctrine.

[12] Although it is not an explicit part of the repeti-

tion/evasion test, the significance of the issue plays an in-

tangible role in determining whether this standard is met.

Undoubtedly, the public interest is served by a prompt adjudi-

cation of significant constitutional issues. “But purely practical

considerations have never been thought to be controlling by

themselves on the issue of mootness . . .” Richardson v.

Ramirez, 418 U.S. 24, 36, 94 S.Ct. 2655, 2662, 41 L.Ed.2d 551

(1974). Concern for the public interest can support the

decision to review a case, but it cannot confer jurisdiction.

Sosna v. Iowa, supra, 419 U.S. at 401 n.9, 95 S.Ct. 553.

Whenever the Supreme Court speaks of the public interest as a

factor supporting justiciability, it does so only if a dispassionate

application of the mootness doctrine confers jurisdiction. See

Super Tire Engineering Co. v. McCorkle, supra, 416 U.S. at 125-

27, 94 S.Ct. 1694; United States v. W. T. Grant Co., supra, 345

U.S. at 632-35, 73 S.Ct. 894. In the present case, we have

determined that the Article III requirement of a case or

controversy is not satisfied. We are unable to create jurisdiction

by resort to public policy considerations.

[13] Both prongs of the repetition/evasion standard must

be met in order to avoid mootness. Because the likelihood of

17c

repetition is remote and speculative, we need not determine

whether the recurrence of Zebra-like guidelines would evade

review.

We conclude that this case does not present issued “‘ca-

pable of repetition, yet evading review.” Accordingly, we

dismiss the appeal as moot and vacate the judgment of the

district court. We have no occasion to consider the Fourth

Amendment issues raised by the parties.

APPENDIX D

UNITED STATES DISTRICT COURT

For THE NORTHERN DISTRICT OF CALIFORNIA

JOSEPH B. WILLIAMS, et al.,

Plaintiffs,

VS. + No. C-74-0866-ACW

JOSEPH L. ALIOTO, et al.,

Defendants. |

LEO BAZILE, et al.,

Plaintiffs,

VS. +t No. C-74-0867-ACW

JOSEPH L. ALIOTO, et al.

Defendants.

FINDINGS OF FACT

AND

CONCLUSIONS OF LAW

Pursuant to an order shortening time for notice of motion,

these matters came on for hearing on April 24 and April 25,

1974, on plaintiffs’ motions for preliminary injunction.

parties were represented by counsel. Oral and documentary

evidence was presented, and the Court considered all affidavits

filed by the parties prior to the hearing. The Court has also

received and considered memoranda of law and oral argument

of all parties.

The Court makes the following FINDINGS OF FACT

and CONCLUSIONS OF LAW:

FINDINGS OF FACT

(1) The San Francisco Police Department has assigned

the letter “Z” and the equivalent symbol “Zebra” to an

investigation of a series of homicides and attempted homicides

in which twelve persons were killed and six wounded by a

gunman or gunmen in the City of San Francisco between early

December 1973 and the date of filing of the earliest of these

suits on April 19, 1974. In the course of that investigation, the

Department issued a series of directives, orders and memo-

randa between April 17, 1974 and April 22, 1974, that were

received in evidence as Plaintiffs’ Exhibits P-1 through P-4 and

are incorporated herein by reference.

(2) Between April 17, 1974, and April 25, 1974, the

defendants have caused officers of the Police Department

forcibly to stop more than 600 black male individuals pursuant

to the instructions in the documents described by { (1) above.

All of these stops were made upon the sole authority of the

documents in question, and purportedly pursuant to the proce-

dures set forth in those documents.

(3) Numerous of the individuals stopped were subjected

to a “pat-down” form of search and “field interrogation” cards

were completed at the scene for future use of the defendants.

(4) The documents described in { (1) together authorized

and directed that officers stop black male individuals physically

resembling two composite drawings attached to Plaintiffs’ Ex-

hibit P-1 and having other general physical characteristics

described in Plaintiffs’ Exhibits P-1 and P-3, although such

individuals exhibited no other characteristics or activities that

could lead a reasonable officer to believe that the particular

individual had engaged in or was presently engaging in crimi-

nal activity. Because the aforesaid composite drawings and

physical description are general in nature, police officers have,

in applying them, already found more than 600 black male

persons who are described by them and, if continued to be

used, they would apply to countless additional persons.

(5) Prior to April 23, 1974, neither the documents de-

scribed in J (1) nor any other written or oral instructions given

to officers of the Police Department further limited the class of

persons who may be stopped and pat-searched pursuant to the

Zebra investigation.

(6) An additional directive issued to the Zebra Command

under date of April 23, 1974, limits the class of persons subject

to stop to an individual who “‘is acting, or appears to be, out of

the ordinary.” That directive has not yet been issued to the

larger number of officers of the Department who are subject to

the documents described in 9. (1). The directive in question

was admitted as Plaintiffs’ Exhibit P-7 and is incorporated

herein by reference.

(7) An additional directive was issued under date April

25, 1974, entitled “Revised Zebra Guidelines”, purporting to

supercede all prior oral and written orders respecting the Zebra

investigation. Said order is incorporated herein by reference.

Said order was admitted into evidence as Defendants’ Exhibit

“E”, It purports to establish detailed ‘“‘guidelines” to be

followed in conducting the field investigation for the Zebra

suspect, including guidelines for forcibly stopping and pat-

searching persons in connection with that investigation. The

guidelines purport to define the circumstances under which an

individual may be forcibly stopped and “‘pat-searched”. Said

guidelines were modeled after the “Model Rules for Law

Enforcement—Stop and Frisk” of the Project on Law Enforce-

ment Policy and Rulemaking, College of Law, Arizona State

University, with significant modifications, among them the

deletion, from the enumerated factors which may justify a

forcible stop, of the second factor enumerated in the Model

Rules, which reads as follows:

2 The Persons’ Actions: Is he running away from an

actual or possible crime scene? Is he otherwise

behaving in a manner indicating possible criminal

conduct? If so, in what way? Were incriminating

statements or conversations overheard? Is he with

companions who themselves are “reasonably sus-

picious’”?

Moreover, the guidelines (Section II, at page 3) authorize

a forcible stop on no more than a determination that the subject

“fit[s] the description of the persons wanted” for the Zebra

slayings, which, in the context of the description contained in

the guidelines and in the composite drawings previously issued,

has the effect of continuing to authorize and direct the forcible

stop of large numbers of black male citizens although such

persons exhibit no other characteristics or activities that could

lead a reasonable officer to believe that a particular individual

had engaged in or was presently engaging in criminal activity.

(8) The aforesaid Guidelines dated April 25, 1974, (De-

fendants’ Exhibit “E”) by their terms (Section VI, pp. 6-7 )

permit departure from the procedures described therein upon

authorization from the Chief of Police. Moreover, absent an

order of this Court to the contrary, they may be modified or

revoked at any time.

(9) Defendants are in possession of no information

consisting of characteristics or attributes of the Zebra killer

which would enable them to formulate questions designed to be

put to persons forcibly stopped in the manner described in

Defendants’ Exhibit “E” which would enable them to deter-

mine whether the persons stopped are or might be the Zebra

killer, and they have not attempted to do so.

(10) The stops and searches conducted pursuant to the

Zebra operation between April 17 and April 24, 1974, have

been found by the Police Department, and are found by this

Court, to have been ineffective and unproductive in the search

for the Zebra killer. They have not uncovered any affirmative

investigative leads to the identity or whereabouts of the killer or

the nature or circumstances of the killings. The proposed

searches conducted under the modified procedures inaugurated

by the directive of April 25, 1974, Defendants’ Exhibit “E’’, to

the extent directed against persons upon no greater cause than a

resemblance to the general physical characteristics described

therein and the previously circulated composite drawings, are

likely to be similarly unproductive and ineffective.

(11) Defendants, their agents and employees, are public

Officials and officers, acting under color of the laws of the State

of California.

(12) Unless restrained by order of this Court, defendants

intend to continue, and will continue, their program of stopping

and pat-searching persons pursuant to the Zebra investigation,

in the manner in which such stops and pat-searches have

heretofore been conducted, subject only to the modifications of

procedure described in Defendants’ Exhibit “E”. Under these

procedures, as modified, hundreds of black male individuals

will be subjected to stops and pat-searches solely on the basis of

their general physical resemblance to the descriptions of the

Zebra killer set forth in Defendants’ Exhibit “E” and to the

composite drawings attached to Plaintiffs’ Exhibit P-1.

CONCLUSIONS OF LAW

(1) The forcible stoppings of individuals upon the ground

of resemblance to the suspect described in Plaintiffs’ Exhibits P-

1 and P-3 and portrayed in the composite drawings attached to

Plaintiffs’ Exhibit P-1, without additional reliable evidence

which, judged objectively, presents sufficient indicia of reliabi-

lity to warrant a reasonable police officer in concluding that the

particular individual stopped has committed or is committing a

criminal offense, violates the Fourth and Fourteenth Amend-

ments to the Constitution of the United States. Terry v. Ohio,

392 US. 1, 21 (1968); Adams v. Williams, 407 U.S. 143, 147

(1972).

(2) The modifications of the procedures effected by

Defendants’ Exhibit “E”, to the extent that they continue to

authorize and direct the forcible stop of large numbers of black

male persons who fit the general description contained therein

and in the aforesaid composite drawings without additional

reliable evidence, which, judged objectively, presents sufficient

indicia of reliability to warrant a police officer in concluding

that the particular individual stopped has committed or is

committing a criminal offense, violates the Fourth and

Fourteenth Amendments to the Constitution of the United

States. Terry v. Ohio, supra; Adams v. Williams, supra.

(3) The pat-down searches of persons stopped on the

grounds set forth in the preceding two paragraphs violate the

Fourth and Fourteenth Amendments because:

(a) the stoppings are unconstitutional, as found in

paragraphs (1) and (2) above; and

(b) the pat-down searches are made without reason-

able grounds to believe that the particular person patted

down is armed and dangerous. Terry v. Ohio, 392 US.1,

22-24 (1968); Sibron v. New York, 392 U.S. 40, 65-66

(1968); Adams v. Williams, 407 U.S. 143, 146 ( 1972).

(4) The stop procedure and the pat-down search proce-

dure conducted by defendants between April 17 and April 24,

1974, pursuant to the Zebra investigation and purportedly

pursuant to the guidelines set forth in Plaintiffs’ Exhibits P-1

through P-4 have deprived the plaintiffs and the class they

represent of rights, privileges and immunities secured by the

Constitution of the United States, namely the Fourth and

Fourteenth Amendments thereto.

(5) The finding made in paragraphs (1) through (4)

above would warrant and require injunctive relief by this Court

even if the modified procedures prescribed by the directive of

April 25, 1974, Defendants’ Exhibit “E,” were constitutional.

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

(6) For the reasons stated in Paragraphs (2) and (3)

above, the modified procedures prescribed by the directive of

April 25, 1974, Defendants Exhibit “E,” are not constitutional;

and their enforcement by the defendants will deprive plaintiffs

and the class they represent of rights, privileges and immunities

secured by the Fourth and Fourteenth Amendinents to the

Constitution of the United States.

(7) In the absence of “constitutionally adequate, reason-

able grounds for doing so” ( Sibron v. New York, 392 U.S. 40 64

(1968)), the practices and proposed practices of stopping

individuals and conducting pat-down searches of them de-

scribed in the foregoing paragraphs also have deprived and will

deprive plaintiffs and the class they represent of rights, privi-

leges and immunities secured by the First and Fourteenth

Amendments, specifically the rights of freedom of movement

and of freedom from the unreasonable and arbitrary dictates of

police officers on the public streets. Shuttlesworth v. City of

Birmingham, 382 U.S. 87 (1965); Papachristou v. City of

Jacksonville, 405 U.S. 156 (1972).

(8) Any of the more than 600 persons who were here-

tofore stopped and “pat-searched” on grounds no greater than

those described in paragraph (1) above were stopped and

“pat-searched” unlawfully, and the records or information

derived therefrom are the products of an unlawful “search and

seizure”; the continued maintenance and use of such records

and information by defendants is unlawful. Terry v. Ohio,

supra; Adams v. Williams, supra.

(9) An actual controversy has arisen and now exists

between the plaintiffs and the class they represent, on the one

hand, and the defendants, on the other, regarding the rights of

the plaintiffs declared in paragraphs (1)-(8) above. A

determination by this Court is necessary and proper to resolve

that controversy.

(10) Plaintiffs and the class they represent have no plain,

adequate or complete remedy at law to redress the wrongs

complained of herein. Suit for declaratory judgment and

injunctive relief is their only means of securing redress from

defendants’ unlawful conduct. Plaintiffs and the class they

represent are now suffering and will continue to suffer irrepa-

rable injury from defendants’ acts and conduct as heretofore

found in these FINDINGS OF FACT and CONCLUSIONS

OF LAW. Injunctive relief is therefore necessary and proper.

(11) Nos. C-74-0866-ACW and C-74-0867-ACW raise

identical issues of fact and law. The defendants in both actions

are substantially identical, and the plaintiff classes are identical.

It is appropriate that the two actions be consolidated for

disposition.

(12) The class of persons represented by the plaintiffs (as

described in paragraph II of the Complaint in No. C-74-0866-

ACW and in paragraph III of the Complaint in No. C-74-0867-

ACW) is so numerous that joinder of all persons is impracti-

cable. There are questions of law and fact common to the class,

and the claims and defenses are typical of those of the class.

Plaintiffs will fairly and adequately represent the interests of the

class. Defendants have acted on grounds generally applicable

to the class, thereby making appropriate injunctive and declara-

tory relief with respect to the class as a whole.

(13) Plaintiffs have, by instituting and prosecuting these

lawsuits, benefitted the plaintiff class and the public generally in

bringing about a conformance with the fundamental require-

ments of the United States Constitution deemed precious and

vital to a society which respects human dignity and the rule of

law. Accordingly, this is an appropriate case for the award of

reasonable attorneys’ fees, to be fixed by this Court upon

application by Plaintiffs. Brandenberger v. Thompson, __ F.2d

___ No. 72-2224 (9th Cir. March 25, 1974).

DATED: April 25, 1974

/s/ ALFONSO J. ZIRPOLI

United States District Judge

PRELIMINARY INJUNCTION

This matter having regularly come on for hearing on

plaintiffs’ motion for preliminary injunction on April 24 and 25,

1974, both parties having been represented by counsel, evi-

dence both oral and documentary having been presented and

the matter having been submitted for decision.

IT IS HEREBY ORDERED THAT:

Defendants, their agents, employees, associates, and all

persons acting at their direction or in concert with them, are

hereby enjoined from doing or causing, directly or indirectly,

any of the following in connection with the investigation of the

so-called “Zebra” matter:

1) Forcibly stopping on the street any person on the

ground that such person appears to be within the so-called

“profile” of the suspected “Zebra” killer contained in the

Interdepartmental Memorandum dated April 17, 1974, issued

by Captain Jeremiah P. Taylor, the composite drawing attached

thereto, the additional “Zebra ‘Stop and Frisk’ Guidelines”

issued by Chief Donald M. Scott on April 19 and 22, 1974, ora

directive issued by Captain Barca on April 23, 1974, and

guidelines issued by Chief Scott on April 25, 1974, or any

subsequent orders supplementing or modifying said “profile,”

unless other independent evidence (such as the conduct of the

subject ) known to the officer creates a reasonable suspicion that

such person has committed or is committing a crime.

2) Pat-searching, “frisking,” or otherwise searching any

person on the ground that such person appears to be within the

so-called “Profile” referred to in paragraph | above unless

other independent evidence known to the officer creates a

reasonable suspicion that such person has committed or is

committing a crime and that such person is armed and dan-

gerous.

10d

3) Arresting any person, or forcibly requiring any person

to go to a police station, or any place removed from the place of

initial contact unless evidence known to the officer establishes

probable cause to believe that such person has committed a

crime.

4) Preparing or retaining a Field Identification (Inter-

rogation ) Card, or other like record, of any stop or search made

in violation of paragraphs | or 2 hereof after the effective date

of this Order.

5) Retaining any Field Identification (Interrogation)

Card, or any like record, heretofore made in connection with

the above-mentioned investigation, or any information taken or

derived therefrom, after the expiration of sixty (60) days

herefrom or using, at any time, any such card or information

derived therefrom for any purpose other than in connection

with the so-called “Zebra” investigation; provided, that any

party may apply for an extension of time for retention on a

showing that there exists a legitimate law enforcement purpose

for continued retention.

DATED: April 25, 1974

/s/ ALFONSO J. ZIRPOLI

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.