County of Los Angeles v. Van Davis Brief Amicus Curiae

    No. 83-1254

In the

Bnpvzmz Court of tljr Mnxtzb ^tatro
October Term , 1983

Richard W. Velde, et aL,

Petitioners,

National Black Police Association, Inc ., et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

E. Richard Larson* 
Isabelle Katz P inzler 
Burt Neuborne 
American Civil Liberties Union 

Foundation 
132 West 43rd Street 
New York, New York 10036 
(212) 944-9800
William L. Robinson 
Norman J. Chachkin 
Lawyers’ Committee for Civil 

Rights Under Law 
1400 “I” Street 
Washington, D.C. 20005 
(202) 371-1212

Counsel fo r  Respondents 
*Counsel o f  Record



QUESTIONS PRESENTED

Respondents —  the National Black Police 

Association and twelve discriminated-against 

individuals —  alleged in their complaint 

that petitioners willfully and maliciously 

refused to enforce any of their constitu­

tional and statutory civil rights enforcement 

obligations, including petitioners' constitu­

tional and statutory obligation to terminate 

federal grants to state and local police 

departments which petitioners knew were 

practicing discrimination. The questions 
sought to be presented to this Court are:

1. Did respondents state a claim for 

relief under the Fifth Amendment by alleging 

that petitioners "willingfully and malicious­

ly" provided funding to grantees known to be 
discriminatory?

2. Are petitioners, who are alleged to 

have "willfully and maliciously" provided 

funding to grantees known to be dis­

1



criminatory, entitled to qualified immunity 

from any liability for damages on the ground 

that their alleged conduct did not violate 

any clearly established constitutional 

rights?
3. Are petitioners, who adopted and 

followed a policy of never terminating fund­

ing to grantees known to be discriminatory, 

entitled to absolute immunity on the ground 

that they performed discretionary functions 

analogous to those of a prosecutor?

4. May respondents seek damages for 

petitioners' across-the-board refusal to 

carry out their mandatory enforcement 
obligations under § 518(c)(2) of the Crime 

Control Act, as amended in 1973?

5. Do respondents, who alleged injury 

and causation/redressability, have Art. Ill 

standing to mantain this lawsuit?



TABLE OF CONTENTS

Page
QUESTIONS PRESENTED...... ................. i

STATEMENT. ..............     .1

REASONS WHY THE WRIT SHOULD BE DENIED.....3
CONCLUSION...........................  22

TABLE OF AUTHORITIES

Cases

Butz v. Economou, 437 U.S. 478
(1978).................................. ..

Coit v. Green, 404 U.S. 997 
(19 71) , sum_. af f 1 g sub nom 
Green v." ConnalTy, '330 "F.
Supp. 1150 (D.D.C. 1971)................ 9

Cooper v. Aaron, 358 U.S. 1
(1958) ............   8

Duke Power Co. v. Carolina 
Environmental Study Group,
438 U.S . 59 (1978)...................... 18

Escambia County v. McMillan,
No. 82-1295 (U.S. March 27,
1984) ..................................... .

Gilmore v. Montgomery, 417 
U.S. 5 56 ( 1974 )........

- i i i -

9, 18



Page :

Gomez v, Toledo, 446 U.S.
635 (1980).............................

Harlow v. Fitzgerald, 457
U.S . 800 (1982)... ........ . . .4 , 7 , 8 ,

Norwood v. Harrison, 413
U.S . 455 ( 1973) ........... ......... « *

Velde v. National Black 
Police Association, 458 
U.S. 591 (1982) ..... ....If 2, 4, 12,

Watt v. Energy Action Edu­
cational Foundation, 454 
U.S. 151 (1981)........................

. .6

10

18

20

.21

IV



STATEMENT

Most of petitioners' mischaracteriza- 

tions of respondents' claims, and of the 

prior proceedings in this case, were 

addressed when this case was previously 

before the Court. See Br. for Resps. at 1- 

10 r Velde v. National Black Police Associa­

tion, 458 U.S. 591 (1982) (No. 80-1074). A

few additional comments nonetheless are in 

order here.

First, respondents nowhere alleged in 

their complaint "that petitioners took many 

steps to enforce [petitioners'] civil rights 

obligations." Cert. Pet. at 7. To the 

contrary, respondents repeatedly alleged in 

their complaint that petitioners willfully 

and maliciously refused to enforce any of 

their constitutional and statutory civil 

rights enforcement obligations including 

their constitutional and statutory obligation 

to terminate federal grants to state and

1



local police departments which petitioners
knew were practicing discrimination. J.A. 

11-4 5

Second,

duplicated by 

investigations 

Branch and by 

trial court's 

discovery in 

respondents'

respondents' allegations were 

the findings of subsequent 

conducted by the Executive 

Congress JL/ And, despite the 

denial to respondents of all 

this case, J.A. 1-3 , 341-45 ,

allegations nevertheless were

1 "J.A." refers to the Joint Appendix filed when 
this case was previously before this Court, see Velde 
v. National Black Police Ass'n, 458 U.S. 591 (1982) 
(No. 80-1074).

2. The congressional findings documenting peti­
tioners' blatant disregard of their civil rights 
enforcement obligations are summarized in the Br. for 
Resps. at 1-10, la-24a, Velde v. National Black Police 
Ass’n, 458 U.S. 591 (1982) (No. 80-1074).

Findings issued by the Civil Rights Commission 
two months after this lawsuit was filed also closely 
paralleled the allegations of the complaint. U. S. 
Comm'n on Civil Rights, THE FEDERAL CIVIL RIGHTS 
ENFORCEMENT EFFORT —  1974 (Vol. VI, To Extend Federal 
Financial Assistance) 271-393, 773-77 (1975). The 
Commission's report was filed with the district court 
as an exhibit to respondents' motion for preliminary 
injunction, and relevant portions of the report were 
reprinted in the Appendix filed in the court of 
appeals, C.A. App. 481-623.

2



well supported by documents in the record 

which had been obtained from petitioners 

under the Freedom of Information Act prior to 

the filing of .this lawsuit.-^
Finally, although the proceedings in 

this case admittedly have been lengthy, the 

delay has harmed not petitioners but respon­

dents . Moreover, respondents submit that 

protraction has been caused by petitioners' 

repeated raising of new and alternative, 
insubstantial arguments which never were 

ruled on by the trial court.

REASONS WHY THE WRIT SHOULD BE DENIED 

Several of the questions presented by 

petitioners here were presented to this Court 

two Terms ago in this case, Velde v. National

3. Many of these FOIA documents were filed by res­
pondents in in support of their motion for a preli­
minary injunction and writ of mandamus, J.A. 46-233, 
and in support of respondents' opposition to peti­
tioners' motion to dismiss or for summary judgment, 
J.A. 340-494.

- 3 -



Black Police Association, 458 U.S. 591 (1982)

(No. 80-1074) (Powell and Stevens, JJ., not 

participating), see Cert. Pet. App. 34a. The 

questions did not warrant rulings from this 

Court, and the case instead was remanded on 

the issue of qualified immunity "for further 

consideration in light of Harlow v. Fitzge­

rald, 457 U.S. 800 (1982)." Id.

Several of the other questions presented 

by petitioners, now as before, were never 

ruled on by the trial court and were not 

decided by the court of appeals in either its 

initial decision or in its remand decision.

Especially in light of this procedural 

posture, there are no substantial questions 
which merit plenary review.

1. Petitioners seek review of a ques-
tion never addressed by any of the lower
courts in this case: whether the comp 1 a i n t
states a claim under the Fifth Amendment.

- 4



Petitioners argue that respondents never 

alleged "that petitioners acted with discri­

minatory intent" and that the complaint 
accordingly "does not state a claim under the 

Constitution." Cert. Pet. at 12.
a. This question was never ad-

dressed by the trial court in this case, nor
was it add ressed by the court of appeals in
either of its two decisions below,. As sum-
marized by the court of appeals in its remand
decision:

The district court has not yet
[respondents'] corn-ruled whether

plaint states a claim upon which 
relief can be granted. We did not 
address this issue in our first 
opinion, and the issue has not been 
briefed for us. We therefore do 
not view the issue as properly pre­
sented for our decision in the 
present posture of this case.

Cert. Pet. App. 7a note 27. For the same 

reasons, the issue is not now properly pre­
sented to this Court.-!/

4. Petitioners' insistence upon seeking review of a 
question never decided below belies their purported 
[cont'd. on next pg]

5



b. The question also is improper­

ly presented as it is premised upon peti­

tioners' extensive mischaracterization of the 

explicit language of the complaint, which 

alleges that petitioners' unconstitutional 

actions were "willful and malicious." J.A. 

44. The complaint not only contains an 

explicit elaboration of the manner in which 

petitioners were alleged to have been "acting 

unconstitutionally and in excess of their 

authority," see J.A. 41-43, but also includes 

repeated references to petitioners' knowing 

refusals to alter their discriminatory 

policies and practices, see, e .g. , J.A. 21- 

41. Respondents, through their unavailing 

contacts with petitioners, had every reason 

to believe that petitioners' unconstitutional

concern about the length of the proceedings in this 
case, in which petitioners have succeeded in blocking 
all proceedings in the trial court for more than eight 
years. "[I]n any event, [the] question [now raised] 
should be decided in the first instance by the" courts 
below. Escambia County v. McMillian, No. 82-1295, 
slip op. at 4 (U.S. March 27, 1984) (per curiam).

-  6



conduct was "willful and malicious, and so

they alleged. J.A. 44. No greater 

specificity in pleading is required. Cf ♦ 

Gomez v. Toledo, 446 U.S. 635 (1980).

2 . Petitioners ask this Court to

review the question which the court of

appeals decided on remand in light of Harlow

v. Fitzgerald, 457 U.S . 800 (1982) : whether

petitioners had "'clearly established' . . . 

constitutional duties to terminate federal 

funds to local law enforcement agencies 

allegedly known to be discriminating unlaw­

fully on the basis of race and sex." Cert. 

Pet. App. 2a. Based upon a long line of this 

Court's decisions dating from 1958, the court 

of appeals recognized that "it is a clearly 

established principle of constitutional law 

that the federal government may not fund 
local agencies known to be unconstitutionally 

discriminating," Cert. Pet. App. 20a, and

7



held that petitioners accordingly were not 

entitled to qualified immunity on summary 

judgment under Harlow. Petitioners, who do 

not directly dispute that the governing con­

stitutional principles had been clearly 

established, have presented no substantial 

issue here .

a. In Harlow, this Court held 

that "government officials performing discre­

tionary functions" are not entitled to quali­

fied immunity where they are alleged to 

violate "clearly established statutory or

constitutional rights of which a reasonable
person would have known." 457 U.S. at 818.

There can be no question here that clearly

established constitutional principles bar 

government officials not only from engaging 

in direct discrimination but also from

providing government "support" to discrimina-

t ion "through any arrangement, management,

funds or property." Cooper v. Aaron, 358

8



U.S. 1, 19 (1958). As Chief Justice Burger

unequivocally reiterated for the unanimous 

Court in Norwood v. Harrison, 413 U.S. 455 , 

467 (1973), a government agency's "constitu­

tional obligation requires it to steer clear 

. . . of giving significant aid to institu­

tions that practice racial or other invidious 

discrimination." See also Gilmore v. Mont­

gomery , 417 U.S. 556 (1974); Coit v . Green,

404 U.S. 997 (1971), sum, aff'g sub nom Green 

v. Connally, 330 F. Supp. 1150 (D.D.C. 1971). 

Petitioners, who not only served as law en­

forcement officials but also were lawyers, do 

not seriously dispute that the foregoing 

decisions clearly established petitioners' 

constitutional obiigat ions. Cert. Pet. at 

17-19. The court of appeals' proper

application of these decisions through the 

objective test in Harlow is unassailable /

5. Although petitioners complain that the court of 
appeals' decision does not provide adequate guidance 
to federal officials who seek to avoid liability, 
[cont'd. on next pg]

9



b Qualified immunity is also
unavailable to petitioners as they did not 

and cannot meet the threshold Harlow 

requirement of exercising "discretionary 

functions." 457 U.S. at 818. As the court 

of appeals recognized in its first decision 

below, in view of petitioners' mandatory 

statutory duties under § 518(c)(2) of the

Crime Control Act, 42 U.S.C. § 3766(c)(2)

(Supp. V 1974), see infra at 11-13, peti­

tioners had "virtually no discretion under 

the relevant statute in deciding whether to 

terminate LEAA funding to discriminatory 

recipients." Cert. Pet. App. 39a. In fact, 

the "mandatory language" of the statute, when

Cert. Pet. at 17-19, we fail to understand how federal 
enforcement officials can mistake the meaning of the 
court of appeals' decision or of the decisions of this 
Court in the context of this case. Petitioners, after 
all, were alleged to have willfully and maliciously 
provided funding to known discriminators, and peti­
tioners' own discriminatory actions were well docu­
mented by findings made by Congress and by the U.S. 
Commission on Civil Rights, see supra at 2 note 2, as 
well as through FOIA materials in the record of this 
case, see supra at 3 note 3.

10



read in conjunction with petitioners' "con­

stitutional . . . duty not to allow federal

funds to be used in a discriminatory manner 

by recipients, takes [petitioners'] civil 
rights enforcement duties outside the realm 

of discretion." Id. at 40a note 15; see also 
id. at 13a-20a. This lack of discretion also 

takes petitioners outside of the realm of 

qualified immunity under Harlow.

3. Ignoring their nondiscretionary 

statutory mandate, petitioners urge this 

Court to review yet again whether all of the 

petitioners should have been accorded abso­

lute immunity based on this Court's allowance 

of prosecutorial immunity in Butz v. 

Economou, 4 38 U.S. 478, 515 (1978), to those 
specific agency officials who enjoy "broad 

discretion in deciding whether a [civil 
penalty] proceeding should be brought and 

what sanctions should be sought." Two Terms 

ago in this case, this Court declined to

11



adopt petitioners' identical argument and 

thereby declined to disturb the court of

appeals' rejection of that argument. Cert. 

Pet. App. 34a. No substantial question is 
presented here.

a. The nondiscretionary enforce­

ment obligations imposed upon petitioners by 

their governing statute, § 518(c)(2) of the 

Crime Control Act, precluded petitioners from 
claiming prosecutorial immunity. in enacting 

§ 518(c)(2), Congress used language quite 
different from that in other statutes such as 

Title VI of the Civil Rights Act of 1964, and 

instead mandated the use of fund termination 

proceedings against grantees not in compli­

ance with the statute's nondiscrimination 

requirements _§/ By specifying that such pro-

6. As the court of appeals explained: "The broad 
discretion over enforcement methods provided by Title 
VI is in sharp contrast to the mandatory language of 
the Crime Control Act." Cert. Pet. App. 13a.

The mandatory language of the Crime Control Act 
and the circumstances which compelled Congress to 
impose this uniquely stringent mandate are set forth 
at considerable length in the court of appeals1 remand 
[cont'd. on next pg]

12



ceedings must be brought against grantees

found to be discriminatory, Congress express­

ly denied petitioners any "broad discretion 

in deciding whether a proceeding should be 

brought." 438 U.S. at 515. Petitioners 

similarly had no discretion to decide "what 

[civil penalty] sanctions should be sought,"

id ., since § 509 of their statute provided
only for the termination of the "federal
payments" which the noncomplying grantees
were not eligible for in the first place. As

the court of appeals succinctly concluded in 
direct response to petitioners' argument: 

"The purpose of shielding discretionary 

prosecutorial decisions from fears of civil 

liability has no place where, as here, agency 

officials lack discretion." Cert. Pet. App. 

39a; see also id. at 13a-20a.

decision, Cert. Pet. App. 13a-20a, and in its initial 
decision, id. at 38a-40a. See also Br. for Resps. at 
1-10, 16-29, la-24a, Velde v. National Black Police 
Ass1n, 458 U.S. 591 (1982) (No. 80-1074).

13



b. The record here also bars 

petitioners' claim of prosecutorial immunity 

since the record establishes both that peti­

tioners denied themselves all discretion and 

that they in fact never exercised any prose­

cutorial functions. First, and directly 

contrary to their statutory mandate requiring 

administrative action prior to pursuit of 

judicial relief, petitioners strictly adhered 

to an administrative regulation interpreted 
by petitioner Richard Velde to "require LEAA 

to pursue court action and not administrative 

action to resolve matters of employment dis­

crimination." J . A . 90. Second, in their 

pre-Butz affidavits filed in the trial court, 

none of the petitioners anywhere claimed to 

have any prosecutorial functions much less 

either the authority or the responsibility 

for refusing to initiate administrative fund 

termintion proceedings. J.A. 236-64. 

Instead, petitioners uniformly described 

themselves only as administrators. Id.

14



Under But 2 they accordingly are entitled to

no more than qualified immunity.

4. Petitioners next ask this Court to 

review another question now raised for the 

first time in this litigation: "whether 

respondents may pursue a personal damages 

remedy against petitioners on the basis of 

the Crime Control Act alone." Cert. Pet. at 

22-23 .

a. Since petitioners never moved 

to dismiss respondents' complaint on this 

ground, J.A. 234-35, and since this question 

accordingly was never addressed by the trial 

court or by the court of appeals in either of 

its decisions, petitioners in effect seek an 

advisory opinion from this Court on a matter 

which has never been properly placed in 

issue. If petitioners truly desire a ruling 

on respondents' statutory cause of action, 

petitioners on remand may file an appropriate 

motion to dismiss with the trial court. The

15



issue simply is not properly presented here 

in the posture of this case. See supra at 5- 

6 & note 4.

b. Apart from their request for 

review of a question never before raised in 

this case, petitioners provide no legal sup­

port for their view that respondents lack a 

cause of action under the Crime Control 

Act. To the contrary, respondents fully 

satisfy each of the four criteria in Cort v. 

Ash, 422 U.S. 66, 78 ( 1975). Additionally,
since Congress subsequently recognized the

pendency of this lawsuit, approved of such

actions, and preserved the implied right of 
7 /action—  when it amended § 518(c) of the

Crime Control Act in 1976, respondents' cause 

of action is confirmed by the "contemporary 

legal context" in which Congress

legislated. Cannon v. University of Chicago,

7. See H.R. Rep. No. 155, 94th Cong., 2d Sess. 11, 
27 (1976); see also LEAA Hearings Before the Subcomm. 
on Crime of the House Comm, on the Judiciary, 94 th 
Cong., 2d Sess. 491-516 (1976).

16



441 U.S. 677 , 698-99 (1979) ; see generally

Merrill Lynch, Pierce, Fenner & Smith v. 

Curran, 456 U.S. 353, 374-88 (1982).

5. Petitioners lastly seek review of 

the holding below that respondents have Art. 
Ill standing to maintain this action. Con­

trary to petitioners' assertion, Cert. Pet. 

at 9 note 8, there was no disagrement among 

the appellate judges below that the allega­

tions in the complaint were sufficient to 

establish respondents' standing, Cert. Pet. 

App. 2a note 3, 40a note 16, 42a-48a. Addi­
tionally, although respondents' standing was 

previously at issue before this Court —  and 

comprised the bulk of oral argument!/ —  the 
court of appeals' initial decision upholding 

respondents' standing was not disturbed by 

this Court. Cert. Pet. App. 34a. Peti-

8* See Oral Arg. Trans. 4-8, 18, 26-30, 34-35, 37,
41, 43-44.

17



t ioners advance no persuasive just if ications 

for revisiting the question now,

a. As consistently alleged in 

this case, respondents were injured by peti­

tioners' refusals to carry out their consti­

tutional and statutory civil rights obliga­

tions and by petitioners' consequent funding 

of grantees which were also discriminating 

against respondents. See J.A. 18-41. As in 

Norwood v. Harrison, 413 U.S. 455 (1973), the 

alleged violations by petitioners caused the 

injuries which respondents assert; and, 

similarly, the relief sought by respondents 

(injunctive relief and damages) would remedy 

and compensate for the injuries caused by 

petitioners' transgressions. Respondents 

here —  in a position no different from that 

of the plaintiffs in Norwood and in Gilmore 

v. Montgomery, 417 U.S. 556 (1974) —  more

than adequately alleged the injury and causa- 

tion/redressability necessary to establish

18



their standing. Duke Power Co. v. Carolina 

Environmental Study Group, 438 U.S. 59, 72

( 1978) .
b. Even under petitioners' mis­

taken view of this case (as one in which 

respondents' only injury was caused not by 

petitioners' own Norwood violations but

instead solely by the discrimination prac­

ticed by petitioners' grantees, Cert. Pet. at 

23-25) , respondents have also met the injury 
and causation/redressability requirements of

Art. III. As Judge Tamm stated in his

separate opinion when the court of appeals

first considered this case, Cert. Pet. App.

42a-48a, respondents' complaint was adequate 

to survive petitioners' motion to dismiss 
since respondents had to be allowed discovery 

to show that the actual or even threatened 

termination of funding to petitioners' dis­

criminatory grantees would effect nondis- 

criminatory behavior by the grantees.

19

Even



without discovery in this case, not only is 

the power of fund termination well docu­

mented, see Br. for Resps. at 40-42, Velde v. 

National Black Police Association, 458 U.S. 

591 (1982) (No. 80-1074), but the actual 

existence here of injury and causation/re- 

dressabil ity is in fact established in the 

record in this case with regard to petitioner 

Joel Michelle Schumacher ,-2/ The standing of

9. Respondent Schumacher, who had been denied 
employment by the New Orleans Police Department 
because she was a female, alleged in the complaint 
that she had "been discriminated against by the 
[petitioners] through their provision of and refusal 
to terminate their LEAA funding to the New Orleans 
Police Department, despite the [petitioners'] know­
ledge that the Department has discriminatorily denied 
employment to [respondent] Schumacher." J.A. 34.

At the time the complaint was filed —  in Septem­
ber, 1975 —  petitioners had never invoked or even 
threatened to invoke the mandatory fund termination 
proceedings against discriminatory grantees. J.A. 
21. Subsequent to the filing of this lawsuit, how­
ever , petitioners began to change their posture of 
nonenforcement. One such instance, revealed in the 
record in this case, establishes respondent Schu­
macher's standing under petitioners' own narrow 
theory.

Subsequent to the filing of this lawsuit, and 
substantially after petitioners had found the New 
Orleans Police Department to be illegally engaged in 
sex discrimination, petitioner Herbert Rice advised 
[cont'd. on next pg]

20



one respondent thus having been affirmatively 

established beyond peradventure, respondents' 
complaint may not now be dismissed. Watt v. 

Energy Action Educational Foundation, 454 
U.S. 151, 160 (1981 ) .

the Superintendent of Police that without the imme­
diate elimination of the discrimination petitioners 
"will be forced to initiate administrative proceedings 
to terminate funding to your Department." Within 
weeks, the Superintendent of Police responded to 
petitioner Rice that the discrimination was being 
eliminated solely because of the proposed "cancella­
tion of all LEAA fundings to this Department," and in 
fact "under duress, namely, the threatened cancella­
tion of LEAA fundings to this Department." See 
Attachments N.O.-9 and N.O.-IO appended to the State­
ment of Reasons and Appendix filed in the district 
court in support of Defendants' Motion to Dismiss or 
for Summary Judgment.

21



CONCLUSION

No substantial issues warranting further 

briefing or oral argument have been raised by- 

petitioners. The writ of certiorari should 
be denied.

Dated: April 6, 1984

Respectfully submitted,

E. RICHARD LARSON*
ISABELLE KATZ PINZLER 
BURT NEUBORNE 
American Civil Liberties 

Union Foundation 
132 West 43rd Street 
New York, New York 10036 
212/944-9800

WILLIAM L. ROBINSON 
NORMAN J. CHACHKIN 
Lawyers' Committee for Civil 

Rights Under Lav/
1400 "I" Street 
Washington, D.C. 20005 
202/371-1212
Counsel for Respondents 
*Counsel of Record

22



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