Barton v. Eichelberger Brief for Amici Curiae NAACP Legal Defense & Educational Fund and the National Office for the Rights of the Indigent

    UNITED STATES COURT OF APPEALS
POP THE THIRD CIRCUIT

RHODA Y. BARTCH and LEWIS 
JOHNSTONE, on behalf of 
thoTf.seJ.ves and all others 
similarly situated,

Appellants,

v .
ELI EICHEL5ER.GEA, Mayor

City of York, Pennsylvania;
LESLIE JaCKSOM, Director of 

Public Safety, City of York, 
Pen: syIvan ia;

LEONARD LANDIS, Chief of 
tclj.ce, C.Li./ Ox iOi.js,
Pen n s v ji.v an i a,

RUSSELL-" KOOMT 3, Captain,
York City Police Department, 
City of York, Pennsylvania,

Appellees.

NO. 3 8,98G

BRIEF POP. AMICI CURIAE 
N . A . A . C . P .  i L G A L  DEFENSE AND EDUCATIONAL 
FUND] INC. AND THE k. ' , L OFJ ICE FOR 

________ THE RIGHTS OP TEE INDIGENT

J A C K  GREENBERG 
JAM ES M. N APR IT, 13 I 
MJCHALl, MSLTSNER 
MELVYN ZARR

10 coiurcbuCircle 
New York. New York 10019

ANTHONY 0. AMSTERDAM
Stc nf ore l n:: ver s.i ty  2,aw Scl ool 
Stanfork, California 94305

Attorneys for Amici Curiae



I N D E X
Pages

Statement of Interest of the Amici Curiae .........  1
Argument:

Introduction .............. ................ 4
I. In View Of Its Finding That The Police 

Conduct Here Was "Reprehensible" And 
"Inexcusable," The District Court Erred 
In Declining To Grant Injunctive Relief ... 8
A. Injunctive Relief Is The Only- 

Workable Legal Remedy Where There 
Is Serious And Widespread Police
Abuse Of Office...................... . 8

B. The Findings Of The District Court 
Demonstrate That The Expansive 
Equitable Relief, Which The District 
Court Had The Power To Grant, Is 
Required Here To Protect Appellants!
Constitutional Rights .............. 2C

Conclusion ........ ......................... 24

AUTHORITIES CITED

Cases:

Alexander v. Holmes County Board of Education,
396 U.S. 19 (1970) ...................... ........ 20

Anderson v. City of Albany, 321 F.2d 649
(5th Cir. 1963) ...... '..... ..................... 17

Bailey v. Patterson, 323 F.2d 201 (5th Cir.
1963), cert. den., City of Jackson v. Bailey,
376 U.S. 210 (1964) .............................. 16

Baker v. Carr, 369 U.S. 186 (1962) ....... ....... 20,^2
Baker v. City of St. Petersburg, 400 F.2d

294 (5th Cir. 1968) .............................. 22
<

Basista v. Weir, 340 F.2d 74 (3d Cir.
1965) .... ....................................... 20



Cases (Continued) Pages

Brown v. Board of Education, 349 U.S. 294
(1955)     20

Brown v. Board of Education, 347 U.S. 483
(1954)         11

Butcher v. Rizzo, C.A. No. 69-3000
(E.D. Pa., September 8, 1970) ........... ...... 12

Cottonreader v. Johnson, 252 F. Supp. 492
(M.D. Ala. 1965)     12

Cunningham v. Grenada Municipal Separate
School District, 11 Race Rel. L. Rptr. 1776
(N.D. Miss. 1966)     12

Cunningham v. Ingram, N.D. Miss., C.A. No.
WC 6630 .........................    12,14

Dawkins v. Green, 412 F.2d 644 (5th Gir.
1969)       11

Dombrowski v. Pfister, 380 U.S. 479 (1965)......  11
Gomez v. Layton, 394 F.2d 764 (D.C. Cir.

1968) ..................................____... 12
Griffin v. County School Board of Prince

Edward County, 377 U.S. 218 (1964) ...........  20
Hague v. C.I.O., 307 U.S. 496 (1939)  ..........  11,12
Hicks v. Knight, 10 Race Rel. L. Rptr. 1504

(E.D. La. 1965)      12,13,22
Houser v. Kill, 278 F. Supp. 920 (M.D. Ala.

1968)    12
Hurwitt v. City of Oakland, 247 F. Supp. 995

(N.D. Cal. 1965) ............................... 11
Lankford v. Gelston, 364 F.2d 197 (4th Cir.

1966)     3,7,12,13,14,15
Lee v. Macon County, 267 F. Supp. 458

(1969)           23
Mapp v. Ohio, 367 U.S. 643 (1963) ................ 9
Miranda v. Arizona, 384 U.S. 447 (1966) .........  5
Monroe v. Pape, 3 65 U.S. 167 (1961) .... . 9

li



Cases (Continued) Pages

N.A.A.C.P. v. Thompson, 357 F.2d 831 (5th Cir.
1966) . ...... ......................... ...... 12,13

Pierson v. Ray, 386 U.S. 547 (1967) ..........  9
Powelton Civic Horae Owners Association v.
Department of Housing and Urban Development,
284 F. Supp. 809 (1968) ............. ....... 17

Reynolds v. Sims, 377 U.S. 533 (1964) ......... 11,20
Schneil v. Chicago, 407 F.2d 1084 (7th Cir.

1968)   12
Sellers v. Johnson, 165 F.2d 877 (8th Cir.

1947)     17
Smith v. Hill, 285 F. Supp. 556 (E.D. N.C.

1968)     11
Strasser v. Doorley, 309 F. Supp. 716

(1970)    18
Terry v. Ohio, 392 U.S. 1 (1968)   5,10
Turner v. Goolsby, 255 F. Supp. 724 (S.D. Ga.

1965) ....... '........... ................... 11
United States v. City of Grenada, 11 Race Rel.

L. Rptr. 1782 (N.D. Miss. 1966) ............. 12,22
United States v. Clark, 249 F. Supp. 720

(S.D. Ala. 1965)      12,22
United States v. Edwards, 333 F .2d 575

(5th Cir. 1964)   18
United States v. W. T. Grant Co., 345 U.S.

629 (1953)     16,17
United States v. Jefferson County Board of

Education, 380 F.2d 385 (5th Cir. 1967) .....  23
United States v. McCleod, 385 F.2d 734 (5th

Cir. 1967)       21
United States v. National Lead Co., 332 t.S.

335 (1946)       20
United States v. Oregon State Medical Society,

343 U.S. 326 (1952)      17
United States v. Richberg, 308 F.2d 523 ;’5th

Cir. 1968) ..........  ̂. ..................... 16

- iii -



Cases (Continued) Pages

Valle v. Stengel, 176 F.2d 697 (3d Cir. 1949) .. 11,12
Wheeler v. Goodman, 208 F. Supp. 935 (W.C. R.C. 

1969) ........................ ............... 13,21
Williams v. Wallace, 240 F. Supp. 100 (M.D. 

Ala. 1965) ................ ................ 3,12,13

Statute:
42 U.S.C. § 1983 ........................... ... 9

Texts:
Chevigny, Police Power (1969) .................. 5
Cray, The Big Blue Line (1967) ........... 5
Rote, The Federal Injunction as a P.emedy for 

Police Conduct, 78 Yale Law Journal 143 
(1968) ................................. ..... 10

Report of the Rational Advisory Commission on 
Civil Disorders (GPO #1968-0-291-729,
March 1, 1968) ...... ...................... 5,7

Report of the President's Commission on Law 
Enforcement and Administration of Justice,
"The Challenge of Crime in a Free Society"
(GPO #1967-0-239-122, 1967) ........... ...... 5

/

iv



UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

RHODA Y. BARTON and LEWIS 
JOHNSTONE, on behalf of 
themselves and all others 
similarly situated,

Appellants,

v.
ELI EICPIELBERGER, Mayor

City of York, Pennsylvania;
LESLIE JACKSON, Director of 

Public Safety, City of York, 
Pennsylvania;

LEONARD LANDIS, Chief of 
Police, City of York, 
Pennsylvania;

RUSSELL KOONTZ, Captain,
York city Police Department, 
City of York, Pennsylvania,

NO. 18,986

Appellees.

STATEMENT OF INTEREST OF THE AMICI

Amicus N.A.A.C.P. Legal Defense and Educational Fund, 
Inc. (hereinafter Legal Defense Fund) is a non-profit 
corporation, incorporated under the laws of New York and 
thereby authorized to function as a legal aid society. For 
thirty years, its principal, purpose has been the prosecution 
of lawsuits aimed at obtaining and maintaining the constitu­
tional rights of minority groups and eradicating conditions



of racism and injustice which afflict black Americans. Amicus 
National Office for the Rights of the Indigent (hereinafter 
NORI) was established by the Legal Defense Fund as a separate 
organization in 1965. Its establishment reflects the recogni­
tion that the problems of race and of poverty are inextricably 
linked, and that the goal of equal justice demands the defense 
of all the poor and powerless against oppression.

Counsel for the amici have sued in federal courts at all 
levels and in all areas of the Nation in defense of the con­
stitutional rights of minority groups! Specifically, we have 
sought through legal process to guarantee the full and equal 
access of all citizens to public facilities -- hospitals, 
schools, transportation. We have sought to vindicate the 
right to vote, the right to equal employment opportunities, 
the rights against discrimination in housing, in the adminis­
tration of justice, and in every aspect of public life. Amici 
have also defended the rights of individuals and minority 
group organizations to protest freely against discrimination 
and unjust treatment at the hands of the government.

In defending the rights of black and poor people, we 
have attempted to be responsive to the needs of our constituency. 
As new needs are perceived by the community, if the problems 
are capable of judicial solution, we have sought to develop the 
legal tools to me.et them. Thus, the "police problem," currently 
much discussed both inside and outside the black community, has 
become a major area of our concern.

2



Amici1s special concern with the vexing and intractable
problems of police lawlessness and discrimination is the source 
of our interest in the present case. This appears to us a 
momentous litigation —  in many ways, a uniquely important 
litigation -- calling into question the capacity of courts 
and of lav; to deal creatively and effectively with these 
problems. This is so because the broad-scale repression by 
the police of the black community of York proved on this 
record is a particularly egregious example of the "police 
problem" in its most explosive form and also of the critical 
need to find workable judicial solutions of that problem if 
its most explosive outcomes are to be avoided. Courts and 
law can have no more important function, nor any more decisive 
test.

Involved in this lawsuit are issues of officially 
sanctioned racism, official lawlessness, and government 
accountability. Amici have sued in federal courts in the 
past to resolve these issues as they presented themselves in 
other contexts. E .g „, Lankford v. Gelston, infra; Williams v. 
Wallace, infra; Cunningham v. Ingram, infra. Never has their 
resolution been more imperative than it is now.

As amici, we submitted a brief and participated in the oral 
argument of this matter before the district court. Our brief 
there focused on the issue whether the district court had the 
legal authority and the practical capacity to grant the injunc­
tive remedies required to curb the police abuses shown by the 

record in this case.

3



In our brief here, we propose to show that, on the facts 
of this case, as the district judge found them, the court below 
abused its discretion in refusing to grant equitable relief.
We submit that this case represents an extreme instance in 
which federal judicial intervention is required to protect 
rights threatened by irresponsible local police. Although we 
think the district court erred in its consideration of the 
record in that it, inter alia, (1) imposed the wrong burden 
of proof to appellants' evidence, (2) discounted appellants' 
unrebutted evidence of police abuse, and (3) failed to consider 
the record of police abuses and discrimination in its totality 
-- amicj- do not in this brief dispute the district court's 
findings of fact. Our argument here is limited to the issue 
whether, solely on the basis of the abuses which the district 
court found to have occurred, an injunction should have issued.

ARGUMENT

INTRODUCTION

As our Statement of Interest implies, the ultimate issue 
posed by this case is whether the judiciary can respond effec­
tively to abuses of the constitutional rights of black citizens 
by the police -- abuses wh: ch threaten the very fabric of our 
constitutional system.

l
4



Police abuses are not unknown outside of York, Pennsylvania. 
They have occurred in communities all across the Nation. See 
cases cited, pp.11-12, infra; and see CHEVIGNY, POLICE POWER 
(1969); CRAY, THE BIG BLUE LINE (1967).

The Supreme Court has several times noted that police
illegality is a serious and pervasive problem. E.g., Miranda
v. Arizona, 384 U.S. 436, 447 (1966); Terry v. Ohio, 392 U.S.
1, 14-15 (1968). That problem has been the subject of concern
of two recent. Presidential Commissions. Report of the National
Advisory Commission on Civil Disorders (GPO #1968-0-291-729,
March 1, 1968); Report of the President's Commission on Law
Enforcement and Admiaiistration of Justice, "The Challenge of
Crime in a Free Society" (GPO #1967-0-239-122, 1967). Both
of these; government reports conclude that unjust and unequal
treatment at the hands of the police is one of the primary
causes of citizens' disrespect for law:

" [T]o many Negroes, police have come to 
symbolize white power, white racism 
and white repression. And the fact is 
that many police do reflect and express 
these white attitudes. The atmosphere 
of hostility and cynicism is reinforced 
by a widespread perception among Negroes 
of the existence of police brutality and 

x corruption and of a 'double standard' of 
justice and protection -- one for Negroes 
and one for whites." (Report of the 
National Advisory Commission on Civil 
Disorders (GPO #1968-0-391-729, March 1,
1968) at 93.)



This is not to say -- thankfully —  that brutality and 
racial discrimination are inevitable, or even ordinary attributes 
of the police. Good policemen are neither brutes nor bigots; 
and nothing in the nature of their important and difficult work 
requires that they be. For this reason, no issue presented 
in this case requires that the federal court intrude itself into 
conflict with any necessary or legitimate police authority or 
function. Rather —  again, thankfully —  the interest of the 
police in law enforcement and public security could only be 
enhanced by the proper exercise of the federal courts' processes 
to recall York's brutal and biased officers to their legal and 
constitutional responsibilities. For the cost to law, to public 
order and security, when a community feels itself powerless 
against illegal police oppression, is immeasurable.

There is no war, we think, between police efficiency in 
the maintenance of order and the preservation of basic decency 
and civilization in dealings between police officers and the 
community. To the contrary, police efficiency and police 
decency are mutually interdependent, although the practices 
of considerable numbers of York policemen are at war with both. 
That is all the more reason why this case absolutely requires 
the exercise of judicial injunctive powers. Public safety,, 
as well as the quality of life of countless citizens of York, 
imperatively calls for such a remedy.

In extensive findings of fact, the district court discussed
five incidents of what it considered "inexcusable" police conduct.

/

6



We think that the court erred in its findings, and that the 
record indicates a greater number and vastly more serious inci­
dents of police crime than those enumerated in the opinion below. 
However, even assuming the facts as the district court found 
them to be, this case presents an almost incredible spectacle 
of police abuse: uncontrolled terrorism of the black citizens 
of York by the systematic use of oppressive practices ranging 
from racial epithets to the unprovoked shooting of children.
In scope and intensity, the police conduct here is similar 
to that condemned by the Court of Appeals for the Fourth Circuit 
in the leading case of Lankford v. Gelston, 364 F.2d 197 (4th 
C.ir. 1966) . In Lankford, the court characterized the evidence 
of official conduct as a "vast . . . demonstration of disregard
of private rights." Id., at 204. And here, as in Lankford,
"the grave character of the [police] . . . conduct places a 
strong obligation on the Court to make sure that similar conduct 
will not recur." Id_. , at 203 .

Recent history shows that the sort of police violence 
demonstrated in this case and in Lankford, has often been a 
direct and immediate cause of the civil disorders which have 
plagued our cities. Report of the National Advisory Commission 
on Civil Disorders, supra, at 158. Indeed, although it is . 
difficult to disentangle cause and effect in tlese matters, there 
is some evidence that police violence sparked the disorders in 
York in the summer of 1969. (N.T. 695) Fortunately, however,
although the police abuses here have been worse than elsewhere,

/

7



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the black community of York brought its appeal to the courts.
In so doing, it has presented the courts with the opportunity 
to interpose the rule of law into and against the ever-escalating 
cycle of police and community violence. The failure of the 
courts to speak out clearly in condemnation of government 
lawlessness will serve only to exacerbate an already dangerous 
and deteriorating situation.

I.
A. Injunctive Relief Is The Only Workable 

Legal Remedy Where There Is Sprious And 
Widespread Police Abuse Of Office.

Although the district court found that, on the whole, 
the conduct of the York police department was "commendable," 
it characterized five incidents of police excess as "repre­
hensible" and "inexcusable." This "reprehensible" conduct, 
summarized by the court at 311 F. Snpp„ .1132, 1155, included 
indiscriminate and excessive shootings by police officers, 
abusive language and racial slurs and insults, manhandling 
of black citizens, and the use of the slogan, "white power" 
by York police officers. We think, in view of its findings 
with regard to these five instances of police wrong-doing, that 
the district court erred in refusing to grant the injunctive 
relief requested by appellants.

/

8



The injunction is a particularly well-suited remedy 
where police misconduct threatens constitutional freedoms.
In recent times, as other judicial remedies have proved 
inadequate, it has been used more and more frequently by 
federal courts seeking to protect the rights of poor and 
minority communities from police lawlessness.

Experience has demonstrated —  and courts have noted —  
that civil damage actions against police officers are not 
effective to curb police abuses. The Supreme court has held 
that a tort remedy is provided by 42 y.S.C. § 1983 for 
unconstitutional police behavior. Monroe v. Pape, 365 U.S.
167 (1961). However, the scope of the tort remedy is limited 
by doctrines thought appropriate to restrict the potential 
liability of individual police officers, Pierson v. Ray, 386 
U.S. 547 (1967); and several additional factors operate to 
render damage actions a fruitless remedy. A federal tort action 
is generally a costly and risky affair, and the typical long 
delay before final judgment vitiates any value a favorable 
decision might have as a deterrent to police misconduct. Those 
who do sue subject themselves to further harassment from the 
police. Similarly, witnesses who might testify against the 
defendant officer are often intimidated and threatened with 
recrimination. Because of these severe burdens, damage actions 
are rarely pursued by would-be plaintiffs who are poor and black.

It was in part because the suit for damages constituted 
a "worthless and futile" remedy, Mapp v. Ohio, 367 U.S. 643,
652 (1961) that the Supreme Court sought to control police

9



illegality through the exclusionary rule in criminal cases.
The exclusionary rule itself, however, is a device of limited
effectiveness. It is insufficient to meet the situation of
wholesale and egregious police violations of community rights
such as are shown by the record here; and it is of no value
whatsoever when those violations are committed mainly against-
innocent parties, when the police undertake to mete out summary
punishment without criminal charges, or when searches are not
involved. Only recently, in Terry v. Ohio, 392 U.S. 1 (1968),
the Court had occasion to discuss the* inadequacy of the
exclusionary rule as a means to curb widespread police abuses.
There, Chief Justice Warren, speaking for the Court, wrote:

"The wholesale harassment by certain 
elements of the police community, of 
which minority groups, particularly 
Negroes, frequently complain, will not 
be stopped by the exclusion of any 
evidence from any criminal trial."
(Id., at 14-15)

However, the Court made it clear that it did not intend
that victims of broad-scale police repression should be left
without a legal remedy:

" . . .  [0]ur approval of legitimate and
restrained investigative conduct under­
taken on the basis of ample factual justi­
fication should in no way discourage the 
employment of other remedies than the ex­
clusionary rule to curtail abuses for which 
that: sanction may be inappropriate." (Id. , 
at 15.)

1/
What remains is the broad equity po\\er of the Court.

1/ The application of injunctive process in suits against the 
police is the subject of a recent note published in the Yale Law 
journal. Note, The Federal Injunction as a Remedy for Uncon­
stitutional Police Conduct, 78 YALE LAW JOURNAL 143 (T968} .

10



Of course, federal courts are not strangers to the use of 
injunctive process to remedy constitutional deprivations.
The Supreme Court has often required the use of injunctions 
when other avenues of relief were likely to be unavailing.
Brown v. Board of Education, 347 U.S. 483 (1954), 349 U.S.
294 (1955); Baker v. Carr, 369 U.S. 186 (1962); Reynolds v.
Sims, 377 U.S. 533 (1964); Dombrowski v. Pfister, 380 U.S.
479 (1965) .

Specifically, in Hague v. C ,I.0,, 307 U.S. 496 (1939), 
the Court upheld the power of a federal district court to 
enjoin a mayor and police department from a "deliberate policy" 
of constitutional violations. In Hague, supporters of a labor 
organization successfully sued to enjoin city officials from 
pursuing and threatening to pursue a course of arrests and 
prosecutions based upon unconstitutional city ordinances, and 
other practices including the illegal use of force and violence 
by police officers, aimed at harassing union organizers and 
discouraging them from the exercise of their First Amendment 
rights.

For thirty years the lower fedora! courts have applied 
the Hague injunctive remedy to cases of police abuse of office. 
E.g., Valle v. Stengel, 176 F.2d 697 (3d Cir. 1949); Dawkins v. 
Green, 412 F.2d 644 (5th Cir. 1969); Smith v. Hill, 285 F. Supp. 
556 (E.D. N.C. 1968); Turner v. Goolsby, 255 F. Supp. 721 (S.D. 
Ga. 1965)(injunctive order set uut in full in 11 RACE REL. L. 
RPTR. 158, 163-164); Hurwitt v. City of Oakland, 247 F. Supp.
995 (N.D. Cal. 1965). In instances of police brutality and



repression of a black community similar to what the facts
show in York, federal injunctive process has invariably been
forthcoming. Lankford v. Gelston, 364 F .2d 197 (4th Cir. 1966);
N.A.A.C.P. v. Thompson, 357 F.2d 831 (5th Cir. 1966); Williams
v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965); United States
v. Clark, 249 F. Supp. 720 (S.D. Ala. 1965); Cottonreader v.
Johnson, 252 F. Supp. 492 (M.D. Ala. 1965); Houser v. Hill,
278 F. Supp. 920 (M.D. Ala. 1968); Hicks v. Knight, 10 RACE
REL. L. RPTR. 1504 (E.D. La., C.A. No. 15727, orders of July
]0 and July 30, 1965, per Christenberpy, J.); Cunningham v.
Grenada Municipal Separate School District and United States
v. City of Grenada, 11 RACE REL„ L. RPTR. 1776, 1782-1783
(N.D. Miss., C.A. Nos. WC 6633, WC 6642, orders of September
13 and September 20, 1966, per Clayton, J.); Cunningham v.
Ingram, N.D. Miss., C.A. No. WC 6630, temporary injunction of
July 22, 1966, per Clayton, J.).

Injunctive relief against police harassment has been the
rule of this Circuit since the decision, 101 F.2d 774 (3d Cir.
1939), which the Supreme Court affirmed in Hague v. C.I.0.,
supra. See also Valle v. Stengel, supra. Butcher v. Rizzo,
C.A. No. 69-3000, (E.D. Pa., September 8, 1970.) It has recently

2/
been exercised in cases in other circuits, as well as in cases

2/ The District, of Columbia Circuit has lately reaffirmed 
the power to enjoin police "vagrancy observation" practices 
where a constitutional violation was claimed. Gomez v. Layton, 
394 F.2d 764 (D.C. Cir. 1968). And the Seventh Circuit has 
recognized equitable power to remedy police deprivation of the 
rights of news reporters. Schnell v. Chic;ago, 407 F.2d 1084 
(7th Ciri 1968).

12



In our
3 /

in which counsel for amici have participated, 
experience, federal injunctions restraining widespread 
violations of constitutional rights the police have often 
proved the only workable instrument for first arresting and 
then reversing the destructive cycle of violence that uncon­
strained police abuse and repression of a minority-group 
community unleashes. Thus Judge Johnson's injunction in 
Williams v. Wallace, supra, brought an effective end to most 
of the disorders surrounding the Selma-to-Montgornery March in 
1965; Judge Christenberry1s injunction and subsequent orders 
in Hicks v. Knight, supra, defused a potentially destructive 
confrontation situation in Bogalusa, Louisiana, in the same 
year; and Judge Clayton's similar use of injunctive process

3/ In Lankford v. Gelston , supra, the Baltimore City Police 
Department had engaged in a series of unconstitutional searches. 
The Fourth Circuit held that injunctive relief was not only 
appropriate but mandatory as the only remedy likely to be 
effective, even though the searches had admittedly come to an 
end and the challenged police department policy had been 
administratively reversed. Following Lankford, the court in 
Wheeler v. Goodman, 209 F. Supp. 935 (W.D. N.C. 1969), enjoined 
Charlotte police from harassment of a class of persons loosely 
described as "hippies." Subsequently, a three-judge district 
court declared the North Carolina vagrancy statute that had 
been the principal instrument of the harassment unconstitutional, 
and ordered plaintiffs' criminal records expunged. Wheeler v. 
Goodman, 306 F. Supp. 58 (1969). The Fifth Circuit held in 
N.A.A.C.P. v. Thompson, 357 F..2d 831 (5th Cir. 1966), that Jackson, 
Mississippi police and other city officials should have been 
enjoined from interfering, by the use- of harassing arrests, with 
plaintiffs' right to peaceful protest.., Recent injunctive orders 
by several district courts in that circuit are mentioned in 
text, infra.

i

13



restored both public order and the enjoyment of basic civil 
rights by black citizens in Grenada, Mississippi the following 
year, Cunningham v. Ingram, supra.

Thus, equitable remedies answer a critical need in cases
of police-community conflict. For this reason, it is especially
significant that the York black community has placed its
reliance on the courts. As the repository of the law, the
judiciary has, in the last analysis, the duty to demonstrate
the efficacy of the law to curb abuses of "legal" authority.
That judicial duty was well put in Lankford:

"It is of the higliest importance to community 
morale that the courts shall give firm and 
effective reassurance, especially to those 
who feel that they have been harassed by 
reason of their color or their poverty."
(Lankford v. Gelston, supra, 3G4 F .2d, at 
204.)

And it was precisely this judicial role which was not 
appreciated by the district court here. In declining to grant 
injunctive relief, although it found there to have been 
substantial police wrong-doing, the court denied appellants 
what Lankford and the Constitution entitled them to: an 
unequivocal, firm judicial declaration of their constitutional 
right not to be subjected to police abuse. The district court's 
mild and unreasoned conclusion that the police acted "repre- 
hensibly" is an unsatisfactory disposition of this case because 
it leaves unresolved the very issue which the appellants sought 
to settle by bringing this lawsuit; namely, whether the police
violated constituuionally-protected rights in their treatment

l
of black York citizens during the days of civil disorder. Although 
it may be implicit in its findings, we think the court below

14



erred in failing to specifically hold that the five incidents 
of police abuse which it considered to be "transgressions" 
were also violations of Due Process. .further, it was error 
for the court not to hold that these "transgressions" of 
constitutional rights called for equitable relief.

The unique remedies available in equity serve several 
purposes in cases of this sort. The injunction is particularly 
well-suited where, as here, as a result of hostility and fear 
on both sides, communication between the police and the 
community has reached a stalemate. A. court mandate would help 
restore the balance in a community torn by civil strife by 
breaking the tragic sequence of police-community violence.
As Judge Sobeioff aptly put it, where " [T]he sense of impending 
crisis .in police-community relations persists, . . . nothing 
[can] so directly ameliorate it as a judicial decree forbidding 
the practices complained of." Lankford, at 204.

The lower court's factual finding that some of the police 
conduct here was "reprehensible," buried deep in a fifty-four 
page opinion, will do little to prevent the recurrence of 
similar conduct in the future. Indeed, more than once in its 
opinion, the court praised the police, and commended them for 
their "restraint." We do not doubt that at times during the 
period of civil disorder the behavior of some members of the 
York police department was irreproachable. Moreover, we agree; 
with the court that the riotous conditions which existed in 
the City of York were such as to tax the abilities of the most 
well-trained, well-intentioned officer. However, even if,

J 5



arguendo, the police conduct during the relevant period was in 
some respects praiseworthy, this fact does not detract from 
the seriousness of the numerous incidents of misconduct. 
Injunctive relief is the only guarantee that the illegal acts 
which the court did find the police guilty of do not recur.
The lower court's opinion gives the police -- who have every 
reason to believe that they have won a complete victory —  
no incentive to change their behavior. It leaves them utterly 
"free to return to [their] old ways." United States v . W .T . 
Grant Co., 345 U.S. 629, 632 (1953).

In Grant, a case outlining the criteria for the granting 
of injunctive relief where the illegal conduct had terminated 
at the time of trial, the Supreme Court noted that injunctive 
relief should be granted whenever thexe is a "cognizable danger 
of recurrent violation." Grant, supra, at 633. And in United 
States v. Ricnberg, 308 F.2d 523, 530 (5th Cir. 1968), the 
Fifth Circuit found that the district court's refusal to 
enjoin defendant's discriminatory practices for the reason 
that there was no showing of discrimination at the time of trial 
and for mere than seven months prior to trial, was an abuse 
of discx*etion in light of the fact that there was no indication 
that the defendant intended to change his policy. See also 
Bailey v. Patterson, 323 F .2d 201 (5th Cir. 1963), cert. den., 
City of Jackson v. Bailey, 376 U.S. 210 (1964) .

Here, every indication from the record and from the opinion 
of the court below is that police abuse in York will continue.

/

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Nothing in that opinion will prevent the strong animosities 
and racial prejudices which, according to the court, exist 
among some members of the York police force, from giving birth 
to new excesses and abuses. Although it might not eliminate 
the root cause of these prejudicial feelings, a clear judicial 
statement that such overt discriminatory conduct is illegal 
and impermissible would undoubtedly affect some change in 
day-to-day police practices.

Injunctive relief is necessary here for the additional 
reason that it would put to rest "a dispute over the legality 
of challenged practices." Grant, supra, 632. Such a judicial 
mandate is needed to "firmly and publicly establish the . . .
right(s)" which the appellants claim and which the lower court 
has indirectly recognized. Powe.tt.on Civic Home Owners 
Association v. Department of Housing and Urban Development,
284 F. Supp. 809, 839 (1968) ( E.D. Pa.). See also United
States v. Oregon State Medical Society, 343 U.S. 326, 333 (1952); 
Anderson v. City of Albany, 321 F.2d 649 (5th Cir. 1963);
Sellers v. Johnson, 165 F.2d 877, 883 (8th Cir. 1947).

Perhaps most important, injunctive relief is here called 
for to demonstrate to a community which feels helpless in the 
face of a seemingly powerful police force and an unresponsive 
local government that the courts will safeguard constitutional 
rights. The decision below reaffirms the unfortunate but real 
belief of the York black citizen that his rights are not entitled 
to judicial protection, but depend on a policeman's whim. The

/



acts of misconduct described by the court below were not 
instances of isolated, careless indiscretions, but evidence 
an attitude and a policy of widespread disrespect and, indeed, 
contempt for the rights of York blacks. It is this attitude 
which so intimidates black citizens from the exercise and 
enjoyment of their constitutionally guaranteed freedoms, and 
which can only be checked by judicial reaffirmance of constitu­
tional standards. See United States v . Edwards, 333 F.2d 575, 
579 (5th Cir. 1964) (dissenting opinion, Judge Brown.)

Nor is it any answer for the district court to say that 
injunctive relief is not required because the police abuses 
were few in number. In virtually every case involving police 
abuse, where illegal acts have taken place, equitable relief 
has been granted. Note, YALE LAW JOURNAL, supra, 146 (n. 17).
It is manifest on the face of the record that the violations 
here were both substantial and numerous. Even if, however, 
appellants had proved only one serious abuse, equity would 
for that single transgression afford a remedy.

A recent opinion by District Court Judge Pettine of Rhode 
Island illustrates the necessity for the use of equitable 
remedies whenever police abuse is shown. Strasser v. Doorley, 
309 F. Supp. 716, 725 (1970)(U.S.D.C. D. R.I.). In that case, 
peddlers of an "underground" newspaper charged that they were 
being harassed by the police in an effort to prevent them from 
selling their paper in downtown Providence. Judge Pettine 
found that of the several incidents of alleged police harassment 
which the plaintiffs sought to prove, only one had merit. That

18



incident occurred when 
arrested while selling 
to verbal abuse by the 
of the judicial relief 
noting:

three of the plaintiffs were illegally 
the paper, manhandled, and subjected 
police. Judge Pettine's discussion 
called for by this incident is worth

"The police of a community are a part of 
our system of justice in daily contact with 
the public. There is no dramatic contest 
between society and law enforcement personnel 
whc are charged with enforcing the law which 
they do not enact and maintaining order. Of 
course, they do not possess unlimited powers 
to deter or reduce disobedience and the 
exercise of personal discretion is an inescapable 
part of their job.

However, deprivation of civil rights demands 
immediate ancl unqualified redress. The federal 
court has power t;o vindicate such wrongs by 
employing mandatory injunctive procedures against 
the officials involved. Lankford v. Gelston, 364 
F .2d 197 (4th Cir. 1966).'

The Mall arrest incident was a deliberate, 
unwarranted police act and as to the same, 
the court declares it to have been, at the 
very least, a violation of plaintiffs' first 
amendment rights, and the court grants declaratory 
relief. However, it refrains from injunctive 
action believing as it does that the police 
officials in the instant case in the light of the 
court's declaration do not need the coercion of 
injunctive relief. Id_., at 725, 726. (Emphasis 
added)

Thus, although Judge Pettine thought that the plaintiffs 
had made out their claim of police hc.rassment as to only one 
of a number of incidents which they sought to prove, he was cf 
the opinion that police illegality o:i the one occasion was, 
in itself, enough to warrant judicial redress.

i

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B. The Findings Of The District Court Demonstrate 
That The Expansive Equitable Relief, Which 
The District Court Had The Power To Grant, Is 
Required Here To Protect Appellants' Constitu­
tional Rights.

Needless to say, injunctive relief must be sufficiently 
thorough to curb the police misconduct found by the court 
below in all of its aspects. That the flexible equity power 
of the courts to remedy constitutional violations is ample 
to this end cannot be doubted. The courts have wide discretion 
to tailor an injunctive decree to the particular factual 
situation of the case so as to secure, as expeditiously and 
effectively as possible, the vindication of constitutional 
rights. The Supreme Court recognized this principle in Brown 
v. Board of Education, 349 U.S. 294 (1955). "[T]raditionally,
equity has been characterized by a practical flexibility in 
shaping remedies...." (Id., at 300.) For other exemplifications 
of the point, see Griffin v. County School Board of Prince 
Edward County, 377 U.S. 218 (1964); Alexander v. Holmes 
County Board of Education, 396 U.S. 19 (1970)r and the re- 
apportionment cases, e.g. Baker v. Carr, 369 U.S. 186 (1962);

4/Reynolds v._Sims, 377 U.S. 533 (1964). In one case in-

4/ In the anti-trust area, it is firmly established that 
courts have the power to grant relief appropriate -to the 
factual situation. In construing Section 4 of the Sherman .
Act, 15 U.S.C. § 4, which gives the federal courts power to 
enjoin anti-trust violations, the Court has held that the 
"essential consideration [governing remedial injunctive re­
lief] is that the remedy shall be as effective and fair as 
possible in preventing continued or future violations. . .
in the light of the facts of the particular case." United 
States v. National Lead Co., 332 U.S. 335 (1946). Remedial 
power is broader still in civil rights cases, where the federal 
courts are under statutory mandate to fashion efficient re­
medies fdr violations of vital constitutional rights.
42 U.S.C. § 1988; see Basista v. Weir, 340 F.2d 74 (3d Cir. 1965) .

20



volving, like this one, illegal police conduct, the Fifth 
Circuit held that a district court had expansive power to 
afford complete relief. United States v. McCleod, 385 F.2d 
734 (5th Cir. 1967). There, in a suit brought by the United 
States to enjoin harassment arrests and prosecutions of in­
dividuals who had sought to exercise the right, to vote, the court 
indicated that an order would be appropriate that required 
county officials to return fines, expunge arrest records, and 
reimburse the aggrieved parties for costs including attorneys' 
fees incurred in the defense of unconstitutional state criminal 
prosecutions. Accord: Wheeler v. Goodman, note 3, supra.

It remains to consider the elements of appropriate relief 
here. We have argued that the facts of this case show such 
purposeful, pervasive, uncontrolled wrong-doing by the York 
police that the lower court's mere condemnation of particular 
instances of misconduct will not sufficiently protect appellants' 
rights. Adequate protection requires that the district court go 
to the heart of the problem: the organization of the York police 
department. Of course, the district court cannot and should not 
itself undertake to run the department. But it could well require 
the establishment of new structures within the department that 
will assure the capacity of responsible police officials them­
selves to promulgate and administer a code of internal regulation 
adequate to safeguard plaintiffs and the York community against
a recurrence of the intolerable constitutional violations of the/
past.

21



Unquestionably, the extensive relief which we think is 
required in this case goes beyond the commonplace, but it 
would no*: be unprecedented. Courts have not hesitated to order 
a restructuring of police department practices where necessary 
to enforce the Constitution. See Baker v. City of St. Peters-

Vburg, 400 F.2d 294 (5th Cir. 1968).
It is manifest from the facts of record that similarly 

expansive relif is required in this case. By propsed orders 
submitted to the court below, the appellants detailed the ele­
ments of the relief they sought. Briefly, they requested, 
inter alia, an injunction against each of the specific sorts 
of police lawlessness, violence, and encouragement of private 
violence established by the record; the appointment of a master 
to hear citizens' complaints; the requirement that an effective 
code of regulations be promulgated governing police behavior 
and providing for the discipline of offending officers; in­
vestigation of officers primarily responsible for abuses al­
ready proved; and, perhaps most important, the maintenance of

5 / For example, in United States v. Clark, supra, the district 
court restrained Sheriff Jim Clark of Selma, Alabama "from any 
further use of the Dallas County posse, as that organization 
is presently constituted, in connection with any racial matters. 
(249 F.Supp., at 730) In the City of Grenada litigation, 
supra, Judge Clayton, finding that municipal law enforcement 
authorities had wilfully failed to protect black children from 
violence by white hooligans in connection with school de­
segregation, issued an extensive injunctive order. 11 RAPE 
REL. L. RPTR., at 1782-1783. See also the order entered by 
Judge Christenberry in the I-Iicks v. Knight litigation, supra, 
when certain law enforcement officials of Bogalusa, Louisiana 
failed to comply with the court's initial order to provide 
police prtection to black civil rights demonstrators in the 
city. 10 RACE RET- L. RPTR., at 1507-1508

22 -



continuing jurisdiction by the district court to insure com­
pliance with its orders and any supplemental orders that

§ ymight be required.
Counsel for amici are agreed with appellants that those 

are essential elements of relief if police-community relations 
in York are to see any improvement. The courts should obviously 
eschew undue intervention into the internal operations of a 
city police department. In the first instance, the department 
itself should be responsible for designing and promulgating 
its policies and regulations, disciplining its men, and thereby 
insuring adherence to constitutional standards. However, our 
experience confirms us in the view that, in a situation such as 
this one where there has been a vast disregard for constitutional 
rights, the internal policies of the police must first be made 
specific and visible, second be made constitutionally sound, 
and third be made subject to continuing scrutiny by the court.
The relief which appellants requested would not inhibit the 
police department in the proper exercise of its duties. On the 
contrary, .it is designed to afford the maximum opportunity for 
self-regulation consistent with effective review by the court to 
assure constitutional guarantees.

6/ School desegregation cases furnish a good example of the 
relationship a court may establish with a public agency to 
insure compliance with its orders. See Lee v. Kacon County, 
267 F.Supp. 458, where a Three-Judge Court ordered Alabama 
school districts to file periodic reports for review by the 
Court. See also, United States v. Jefferson County Board 
of Education, 380 F.2d 385 (5th Cir. 1967) (en banc).

23



CONCLUSION
For the reasons described above, the judgment of the 

district court should be reversed.

Respectfully submitted,

JACK GREENBERG 
JAMES M NABRIT, III 
MICHAEL MELTSNER 
MELVYN ZARR

10 Columbus Circle 
New York, New York 10019

ANTHONY G. AMSTERDAM
Stanford University Law Schc 
Stanford, California 94305

Attorneys for Amici Curiae

i

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