Barton v. Eichelberger Brief for Amici Curiae NAACP Legal Defense & Educational Fund and the National Office for the Rights of the Indigent
Public Court Documents
January 1, 1971

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Brief Collection, LDF Court Filings. Barton v. Eichelberger Brief for Amici Curiae NAACP Legal Defense & Educational Fund and the National Office for the Rights of the Indigent, 1971. 9214899c-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/24e3f75c-6dfa-4a2f-b987-134b374adaf3/barton-v-eichelberger-brief-for-amici-curiae-naacp-legal-defense-educational-fund-and-the-national-office-for-the-rights-of-the-indigent. Accessed July 09, 2025.
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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 r\ <3 6- \ l is d vJ h W i sjx 101 UJ<L^f<- 3 ^ 3 C c f 0 i“? 7 / 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. / 16 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 19 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 24