Rizzo v Goode Tate v Council of Organization on Philadelphia Polica Accountability and Responsibility Brief Amicus Curiae in Support of Respondents

    IN THE

SU PR EM E C O U R T  O F T H E  U N IT E D  S T A T E S
OCTOBER TERM, 1975

N o. 74-942

Frank L. Rizzo , et al.,

P etitioners,
v.

Gerald G. Goode, e t al.,

R esp o n d en ts .

J ames H. J. 'Fate, e t al.,

P etitioners,

v.

Council of O rganizations on Philadelphia 
Police Account ability and Responsibility, e t al.,

R esp o n d en ts .

on writ of certiorari to
THE UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

B R IE F  O F TH E LA W Y ER S’ CO M M ITTEE 
FO R  C IV IL  R IG H T S U N D E R  LAW AS 

AM ICUS C U R IA E IN SU PPO R T O F  R E SPO N D EN TS

O f Counsel:
J. Harold Flannery 

, Paul R. Dimond 
William E. Caldwell 
Norman J. Chachkin

520 Woodward Building 
Washington, D.C. 20005

July, 1975

Peter Van N. Lockwood 
Caplin & D rysdale 
1101-1 7th Street, N.W. 
Washington, D.C. 20036

David Bonderman 
Arnold & Porter 
1229 - 19th Street, N.W. 
Washington, D.C. 20036

A tto r n e y s  fo r  A m ic u s  Curiae.

Washington, D.C. • T H IE L  PRESS  • (202) 638-4521



TABLE OF CONTENTS ^

CONSENT TO FILING .......................................................................  1

INTEREST OF AMICUS CURIAE .................................................... 2

STATUTE INVOLVED ........................................................................ 2

QUESTION P R E S E N T E D ........................................................................ 3

STATEMENT OF FACTS ..................................................................... 3

ARGUMENT:

The District C ourt’s Order Was Based on Ade­
quate Evidence and Is an A ppropriate Form  of 
Equitable R e l i e f .....................................................................................7

A. The Evidence o f R ecord Shows a Pattern of 
Police M isconduct for Which Petitioners Are
Legally Responsible Under 42 U.S.C. § 1983  7

1. Petitioners’ Responsibility ................................................... 8

2. Relief Against Petitioners ................................................... 9

B. The Order o f the D istrict C ourt Is a Wholly 
A ppropriate Rem edy for the Violations
F o u n d .............................................................................................. 10

1. The Present Case Presents a Justiciable
Controversy .......................................................................... 11

2. Respondents Have No Adequate Remedy
at Law ..............  15

3. The District C ourt Was Justified  in O rder­
ing the D epartm ent to  Improve its Han­
dling of Citizens’ Complaints ........................................  16

4. Petitioners’ Objections to  the Precise 
Form of the Trial C ourt’s Decree Are 
Wholly U nsupported by Any Evidence of
R e c o r d ...........................................................   19

CONCLUSION ........................................................................................... 21

(0



TABLE OF AUTHORITIES Page

Cases

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) .......................  19

Alexander v. Rizzo, (E.D. Pa., C.A. No. 70-992) . . . . . . . .  6, 18

Allee v. M edrano, 416 U.S. 802 (1974) ............... 9 ,1 0 ,1 2 ,1 5 ,1 8

Bivens v. Six U nknow n Fed. Narcotics Agents, 403
U.S. 388 (1971)    15

Dom browski v. Pfister, 380 U.S. 479 ( 1 9 6 5 ) ..................................  15

Doran v. Salem Inn, Inc., 43 U.S.L.W. 5039 (June 30,
1975) . .............................................    14

General M otors Corp. v. W ashington, 377 U.S. 436
(1964) ....................................................................................................  19

Gilligan v. Morgan, 413 U.S. 1 (1973) .............................................. 12

Hague v. CIO, 307 U.S. 496 ( 1 9 3 9 ) .....................................  9 ,1 4 ,1 5

Laird v. Tatum , 408 U.S. 1 (1972) .................................................... 14

Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) ....................  12

M onroe v. Pape, 365 U.S. 167 (1961) ........................................  9, 10

O’Shea v. L ittle ton , 414 U.S. 488 (1974) ............................  . 11, 13

Scheuer v. Rhodes, 416 U.S. 232 (1974) ........................................  15

Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir.
1969) ..............................................................................................  9 ,1 1

Smith v. Ross, 482 F.2d 33 (6th Cir. 1973) ............................  9

Steffel v. Thom pson, 415 U.S. 452 (1974) ..................................... 14

U nited States v. Spector, 343 U.S. 169 (1952) .............................19

W itherspoon v. Illinois, 391 U.S. 510 (1968) ................................ 19

Wood v. Strickland, 95 S. Ct. 992 (1975) ........................................ 15

Wright v. McMann, 460 F.2d 126 (2d Cir.), cert.
denied, 409 U.S. 885 (1972) ......................................................... 9

Younger v. Harris, 401 U.S. 37 ( 1 9 7 1 ) ..............................................13



( Hi)

Statutes: ^age

Civil Rights Act of 1 8 7 1 ,4 2  U.S.C. §1983 .............................passim

Other Authorities:

American Bar Association, Standards Relating to the
Urban Police Function  (1973)   17

Com m ent, The Federal Injunction as a R em edy fo r  
Unconstitutional Police Conduct, 78 Yale L J .  143 
( 1 9 6 8 ) ...................................................................................................  10

National Advisory Commission on Criminal Justice 
Standards and Goals, R eport on Police, M odel 
Standards fo r  Police Internal Discipline (1973) ..............  17, 20

Note, The Adm inistration o f  Complaints by Civilians
Against the Police, 77 Harv. L. Rev. 499 (1964) ....................  17

Note, Developments in the Law —Injunctions, 78
Harv. L. Rev. 994 (1965)   18

The President’s Commission on Law Enforcem ent 
and A dm inistration o f Justice, The Challenge o f  
Crime in a Free Society  (1967)   17

The President’s Commission on Law Enforcem ent 
and A dm inistration of Justice, Task Force Report:
The Police (1967)    17

Ruchelman, Models o f  Police Politics—New  York 
City, Chicago, Philadelphia, reprinted in L.
Ruchelman, Who Rules the Police! (1973) ...............................  . 8

Schwartz, Complaints Against the Police: Experience 
o f  the C om m unity Rights Division o f  the Philadel­
phia District A tto rn e y ’s Office, 118 U. Pa. L. Rev.
1023 (1970) ..................................................................................  .9



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975

No. 74-942

Frank L. Rizzo, et a l,
Petitioners,

v.

Gerald G. Goode, et al.,

Respondents.

J ames H. J. Tate, et al.,

Petitioners,
v.

Council of Organizations on Philadelphia 
Police Accountability and Responsibility, et a l,

Respondents.

ON WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

BRIEF OF THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW AS 

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

CONSENT TO FILING

This amicus brief is filed, pursuant to  Supreme Court 
Rule 42(2), w ith the w ritten consent o f all parties to the 
case.

1



2

INTEREST OF AMICUS CURIAE

The Lawyers’ Com m ittee for Civil Rights Under Law 
was organized on June  21, 1963, following a conference 
of lawyers called at the White House by the President of 
the U nited States. The Lawyers’ Com m ittee is a n on ­
profit private corporation whose principal purpose is to 
involve private lawyers throughout the country  in the 
struggle to  assure all citizens of their civil rights through 
the legal process. The Com m ittee includes three form er 
A ttorneys General, tw o form er Solicitors General, th ir­
teen past presidents o f the American Bar Association, a 
num ber of law school deans, and m any of the n a tio n ’s 
leading lawyers.

The Lawyers’ Com m ittee and its local com m ittees, 
affiliates, and volunteer lawyers have been actively 
engaged in providing legal representation to  those seeking 
relief under federal and state civil rights legislation and 
the R econstruction A m endm ents to  the C onstitution. As 
part of these efforts, the Law yers’ Com m ittee is particu­
larly concerned w ith ensuring th a t institutions of govern­
m ent at every level in the U nited States are responsive to 
the need to  p ro tec t and preserve the constitutional rights 
of individual citizens. Because the lower courts in this 
case properly enforced the constitutional requirem ent 
tha t police n o t violate the rights of citizens and entered 
an order which will n o t interfere w ith the legitimate 
operations of the police, the Lawyers’ Com m ittee files 
this amicus brief to  urge th a t the decision be affirmed.

STATUTE INVOLVED

The Civil Rights A ct o f 1871, 42 U.S.C. §1983, 
provides:

“ Every person who, under color of any statu te,
ordinance, regulation, custom , or usage, of any State



3

or Territory, subjects, or causes to  be subjected, any 
citizen of the U nited States or o ther person w ithin 
the jurisdiction thereof to  the deprivation of any 
rights, privileges, or im m unities secured by the 
C onstitu tion and laws, shall be liable to  the party  
injured in an action at law, suit in equity , or other 
proper proceeding for redress.”

QUESTION PRESENTED

On the basis o f the evidence presented to  them , were 
the lower courts in this case justified  in concluding tha t 
the Philadelphia Police D epartm ent has been engaged in a 
pattern  of violations of the constitutional rights of 
citizens, due in substantial part to  inadequate supervision 
by superior officials o f the conduct o f police officers, and 
that the least intrusive potentially  effective rem edy for 
this pattern  o f unconstitu tional action is to  require the 
Police D epartm ent to  set up an adequate internal system 
of handling citizens’ com plaints about m isconduct by 
individual police officers?

STATEMENT OF FACTS

The full factual background of the case is set ou t in the 
opinions of the courts below 1 and in the Brief for 
Respondents. In brief, the facts are as follows:

Two separate civil rights class actions were brought in 
1970 by groups of unrelated plaintiffs against officials of 
the City of Philadelphia, including the M ayor, the 
Commissioner of Police and various o ther high-ranking

lrThe opinion o f the D istrict C ourt is reported  at 357 F. Supp. 
1289 and is reproduced beginning at page 65a o f the A ppendix 
(hereinafter cited as App.). The opinion of the Court of Appeals is 
reported  at 506 F.2d 542 and is reproduced beginning at page 4a 
of the A ppendix to  the Petition for Certiorari (hereinafter cited as 
App. Pet. Cert.).



4

police officials, claiming widespread violations of the 
constitu tional rights o f Philadelphia citizens by members 
of the Philadelphia Police D epartm ent. The tw o actions 
were ultim ately consolidated for disposition by the 
D istrict Court, and, accordingly, were treated  as a single 
litigation by the C ourt of Appeals.

A t trial, the plaintiffs presented evidence o f approxi­
m ately 40 specific instances of alleged police m isconduct. 
The trial judge entered extensive findings of fact with 
respect to  each incident. With respect to  the incidents 
presented in Goode, the trial judge found at least seven 
instances of m isconduct by the police tow ard these 
plaintiffs (principally involving one officer DeFazio) 
consisting of illegal arrests (Shaw, Goode), unnecessary 
force (Shaw, Goode, Brown, Sisco and Reas), racial slurs 
(Brown, Reed) and antisem itic remarks. The trial judge 
further found tha t, despite the num erous justifiable 
com plaints relating to  D eFazio’s conduct, his superiors 
never meaningfully disciplined him ,2 no records were 
kept of the com plaints, and D eFazio’s repeated record of 
m isconduct and the com plaints thereof had no effect 
upon D eFazio’s official fitness ratings.3

With respect to  the 28 incidents in COPPAR, the trial 
judge described in detail the conduct of the police and 
found tha t the evidence showed “ widespread” violations 
of citizens’ legal and constitutional rights, principally:

(1) arrests “ for investigation” ;

2D eFazio’s tw o short suspensions were bo th  w ith pay, i.e., 
unscheduled vacations.

3In fact, as the num ber of instances of m isconduct increased, 
D eFazio’s official rating improved.



5

(2) m istreatm ent—including bo th  unlawful arrests 
and beatings—of citizens who question the 
propriety  of police conduct in specific cases;

(3) im proper charges of resisting arrest when the 
arrest was unlawful to  begin w ith; and

(4) extrem e overreaction, frequently  including use 
of unnecessary force and assaults and beatings 
of civilians, in connection w ith actual or re­
ported  assaults on police.

The trial court concluded tha t this repeated m iscon­
duct was the natural and foreseeable result o f the 
institutional failure o f the D epartm ent to  supervise police 
officers’ conduct or to  discipline or otherwise control 
officers who act unlawfully or unconstitutionally . Thus, 
the court found tha t where police officers act unlawfully 
“ little or nothing is done [by the D epartm ent] to  punish 
such infractions, or to  prevent their recurrence.” (App. at 
126a, 357 F. Supp. at 1319). The court also found tha t it 
is “ the policy of the departm ent . . .  to  avoid or minimize 
the consequences of proven police m isconduct . . . .” 
(App. at 124a, 357 F. Supp. at 1318).

In this regard, the court found tha t the D epartm ent 
fails to m aintain adequate records o f incidents of 
m isconduct (particularly ones involving racial bias) in 
connection w ith perform ance ratings o f individual offi­
cers, and tha t it is “ the policy o f the departm ent to 
d isc o u ra g e  the filing o f such [citizens’] com ­
plaints . . . and to  resist disclosure of the final disposition 
of such com plaints.” (App. a t 124a, 357 F. Supp. at 
1318). As a result o f its refusal to  m aintain records or 
process com plaints, the D epartm ent has no  m ethod of 
identifying officers w ho engage in conduct o f the type 
found by the court to  be unlawful. Thus, the D epartm ent 
is in no position to  evaluate or supervise those officers.



6

The trial court determ ined, therefore, th a t the plaintiffs 
had made a sufficient showing o f unconstitu tional con­
duct by the D epartm ent to w arrant some form  o f relief 
under 42 U.S.C. §1983.

The court nex t dealt w ith various forms of relief 
proposed by  the plaintiffs. A fter carefully considering 
both  the need to  p ro tec t the p lain tiffs’ constitutional 
rights and the necessity to  avoid undue interference w ith 
the workings o f the Philadelphia Police D epartm ent, the 
trial court rejected the COPPAR p lain tiffs’ request for 
the appoin tm ent of a receiver for the D epartm ent. The 
court also determ ined th a t detailed injunctive relief was 
unnecessary since m any o f the abuses in this case m ight 
well be resolved by  a consent injunction entered in to  by 
the same defendants in another case involving similar 
issues, Alexander v. Rizzo, (E.D. Pa., C.A. No. 70-992).

The court found tha t a sufficient rem edy for m ost of 
the abuses n o t covered by the Alexander decree would be 
the institu tion  by the Police D epartm ent of a procedure 
for handling and m aintaining records o f citizens’ com ­
plaints against individual police officers. The trial judge 
further determ ined th a t such a rem edy w ould be the least 
intrusive feasible mechanism which could provide relief 
of the sort to  which plaintiffs were entitled. Accordingly, 
he directed the parties to  prepare and subm it a proposed 
form of order setting up a program for police handling of 
citizens’ com plaints o f police m isconduct. A fter the 
parties were unable to  agree on an appropriate form  of 
order, the judge ultim ately entered an order (App. Pet. 
Cert. 20a) setting forth  detailed procedures for the 
handling of citizens’ com plaints by the Philadelphia 
Police D epartm ent.4 As entered, the decree tracked the

4The trial court retained jurisdiction to  m odify the procedures 
upon application of any party  in interest.



7

D epartm ent’s proposal in a num ber of m ajor respects as 
to the allocation of responsibility for m aintaining and 
processing such com plaints.

The defendants then  appealed to  the C ourt of Appeals 
for the Third Circuit, which affirm ed the judgm ent of the 
D istrict Court. The C ourt o f Appeals held, inter alia, tha t 
there was adequate evidence to  support the District 
C ourt’s findings of a pattern  o f police m isconduct in 
violation of 42 U.S.C. §1983; tha t the pattern  of 
m isconduct was sufficiently substantial to  w arrant the 
granting of relief; and tha t the order entered by the 
D istrict C ourt was an appropriate form  o f relief for the 
constitu tional violations found.

ARGUMENT
THE DISTRICT COURT’S ORDER WAS BASED ON 
ADEQUATE EVIDENCE AND IS AN APPROPRIATE 
FORM OF EQUITABLE RELIEF.

A. The Evidence of R ecord Shows a Pattern  of 
Tolerance o f Police M isconduct for Which Peti­
tioners Are Legally Responsible U nder 42 U.S.C. 
§1983.

Although the petitioners have never contested the 
specific findings of police m isconduct in this case and 
although their Brief purports to  be lim ited to  the 
propriety of the D istrict C ourt’s order, Amicus feels 
com pelled to  address a t the outset w hat appear to  be 
suggestions woven in to  the petitioners’ o ther arguments 
tha t there were no findings below of participation by 
them  in the constitutional violations and that, therefore, 
the entry of any relief under 42 U.S.C. §1983 was 
im proper. Petitioners’ contentions in this regard both  
misstate the lower courts’ findings and m iscom prehend 
the law.



8

1. Petitioners’ Responsibility. As the petitioners as­
sert th roughout their Brief, they are the officials charged 
by law w ith the supervision and control o f the Philadel­
phia Police D epartm ent,5 an organization having almost 
7,500 individual police officers at the dates involved in 
this case.6 The day-to-day conduct of those officers on 
the jo b  will inevitably reflect their perception of the 
desires and expectations o f their superiors. Indeed, as the 
com m entators have uniform ly  observed, a police depart­
m ent is substantially m ore hierarchical in its organization 
(resembling in this regard the military) than  m ost other 
governmental and private organizations.7 U nder these 
circumstances, it hardly needs elaborating to  say th a t the 
expectations o f a superior m ay be com m unicated by 
indirect and tacit means as well as by direct and explicit 
ones.

The trial court specifically found, on abundant evi­
dence, tha t a principal cause o f the instances of police 
m isconduct presented in this case was the failure of 
superior officers of the Philadelphia Police D epartm ent 
(including the Commissioner and D eputy Commissioner 
of Police) and their civilian superiors (the M ayor and the 
C ity’s Managing D irector)—the petitioners in this case—to 
control and supervise the conduct o f individual members 
of the Police D epartm ent. In particular, the D istrict 
Court found th a t the Police D epartm ent’s systematic 
failure to  keep records of citizens’ com plaints; dis­

5See also the provisions of the Philadelphia Home Rule 
Charter, cited at pages 4-5 of petitioners’ Brief.

6The precise figure was 7,439 officers in 1969. See Ruchel- 
man, Models o f  Police Politics—New York City, Chicago, Philadel­
phia, reprin ted  in L. Ruchelm an, Who Rules the Police?, at 254 
(1973) (hereinafter cited as Ruchelm an).

7See, e.g., Ruchelm an, supra a t 249.



9

couragem ent of the filing of com plaints by citizens 
against policemen; failure to  investigate com plaints; and 
failure to  discipline adequately policem en as to whom 
citizens’ com plaints have been shown valid,8 all operated 
to  encourage or acquiesce in a pattern  o f m isconduct by 
some police officers. The C ourt of Appeals affirm ed these 
findings o f the D istrict Court.

Under these circum stances, the petitioners can hardly 
dispute th a t they are indeed responsible for the policies 
of the D epartm ent, and tha t these policies are responsible 
for the pattern  of unconstitu tional police activity found 
to exist by the lower courts.

2. R elie f Against Petitioners. As a legal m atter, the 
propriety of an injunction against a police departm ent for 
unconstitu tional action o f its officers due to  the failure 
of superiors to  exercise proper supervision and control 
was settled by this C ourt in Allee v. Medrano, 416 U.S. 
802 (1974) (injunction against Texas Rangers proper 
where officers violate constitu tional rights of citizens).9 
See also Monroe v. Pape, 365 U.S. 167 (1961); Hague v. 
CIO, 307 U.S. 496 (1939).

Furtherm ore, it  is particularly compelling to  regard the 
toleration o f constitu tional violations by superior police 
officials as calling for relief under 42 U.S.C. §1983 
because it is clear tha t one o f the principal reasons for the 
enactm ent of Section 1983 was the toleration by state

g
See also Schwartz, Complaints Against the Police: Experi­

ence o f  the C om m unity R ights Division o f  the Philadelphia D istrict 
A tto r n e y ’s Office, 118 U. Pa. L. Rev. 1023 (1970).

9Ten courts of appeals had previously reached the same result. 
E.g., Sm ith v. Ross, 482 F.2d 33 (6th Cir. 1973); Wright v. 
McMann, 460 F.2d 126 (2d Cir.), cert, denied, 409 U.S. 885 
(1972); Schnell v. City o f  Chicago, 407 F.2d 1084 (7th Cir. 1969).



10

officials after the Civil War of abuses o f the constitu tional 
rights o f blacks. See Monroe v. Pape, supra, 365 U.S. 
at 174-77. Indeed, even the dissenters in Allee v. 
Medrano, supra, 416 U.S. at 858 n.20, cited w ith 
approval a law review article10 which made the po in t 
tha t the critical feature of m any police conduct cases was 
the toleration o f m isconduct by  superior officers, no t 
their direct participation therein.

Accordingly, on the evidence o f record, the lower 
courts were am ply justified  in finding a violation o f 42 
U.S.C. §1983 in the petitioners’ system atic failure to  
control m isconduct by their subordinates in the Philadel­
phia Police D epartm ent, a t least insofar as the propriety  
of equitable relief directed a t them  is concerned.

B. The Order of the District Court Is a Wholly
Appropriate Remedy for the Violations Found.

In our view, the D istrict C ourt’s order, as affirm ed by 
the C ourt of Appeals, is a m odel of restraint. The courts 
below, having found a pa tte rn  o f violation o f constitu ­
tional rights by the Philadelphia Police D epartm ent, 
fashioned an order which was specifically tailored to  the 
particular violations and was designed to  be as unintrusive 
as possible on the legitimate workings of the D epartm ent. 
The petitioners now  make a num ber of arguments in 
support of their contentions tha t the entry o f any 
injunctive relief at all, and of the type o f injunctive relief 
chosen by the courts below in particular, was im proper. 
We deal w ith these contentions seriatim below.

^C o m m en t, The Federal In junction  as a R em edy fo r  Unconsti­
tutional Police C onduct, 78 Yale L .J. 143 (1968).



11

1. The Present Case Presents a Justiciable Contro­
versy.

W ithout precisely saying so, petitioners appear to  be 
claiming tha t the present case does n o t present a 
justiciable controversy because the low er courts did no t 
hold th a t the D epartm ent’s com plaint review procedure 
was in and o f itself unconstitu tional. Petitioners contend 
tha t the lower courts have im properly entered a judgm ent 
against them  based upon a consideration of the “wisdom, 
need, desirability or appropriateness”  o f the D epart­
m en t’s regulations and th a t courts have no  pow er to  
inquire in to  such m atters. Pet. Br. 18-19.

Petitioners’ claims in this regard are plainly incorrect 
because they have confused the wrong (unconstitutional 
D epartm ent action) w ith the rem edy adopted to  cure 
it .11 It goes w ithout saying th a t a person seeking 
injunctive relief under 42 U.S.C. §1983 need n o t allege 
or show th a t he has a constitu tional right to  a particular 
type o f relief to  present a justiciable controversy. R ather 
a p lain tiff m ust allege or show tha t he has been or will be 
injured by some violation o f his constitu tional rights. As 
this C ourt pu t it recently in O ’Shea v. Littleton:

“Plaintiffs in the federal courts ‘m ust allege some 
threatened or actual injury resulting from  the 
putatively illegal action before a federal court m ay 
assume jurisd iction .’ ” 414 U.S. 488, 493 (1974).

^ P e titio n e rs ’ confusion on this po in t is som ew hat difficult to  
understand since the District C ourt explicitly sta ted  th a t its order 
was n o t based on a determ ination th a t the D epartm ent’s p roced­
ures were constitutionally  defective, b u t tha t revision of those 
procedures was “a necessary first step in a ttem pting to  prevent 
future abuses.” A pp. a t 130a, 357 F. Supp. a t 1321.



12

Where a p lain tiff makes the necessary allegations of 
injury and then prevails on the m erits by showing 
unconstitu tional action on the defendants’ part and 
resultant injury, the court is em powered under 42 U.S.C. 
§1983 to  fashion appropriate relief. Allee v. Medrano, 
supra; Schnell v. City o f  Chicago, 407 F .2d 1084 (7th 
Cir. 1969); Lankford v. Gelston, 364 F .2d 197 (4th  Cir. 
1966). Such relief is awarded because it is designed to 
cure the dem onstrated unconstitu tional actions of the 
defendants, no t because the relief itself is constitutionally 
required in the absence of proven unconstitutional 
conduct.

In the present case, the lower court found “ that 
violations of legal and constitu tional rights o f citizens by 
the police [departm ent] are . . . widespread . . . .” (App. 
at 124a, 357 F. Supp. at 1318). These findings were based 
upon fully 47 pages of specific discussion and findings 
relating to  unlawful action by D epartm ent officers and 
injury to  the respondents and the class they represent. 
(App. 73a-119a.) Accordingly, the lower court entered an 
injunction designed to  rem edy the constitu tional viola­
tions it found and bo th  its findings and the relief awarded 
were affirm ed by the C ourt of Appeals.

There can thus be no doubt tha t respondents’ initial 
allegations, and the findings o f the courts below, show 
the presence o f a justiciable controversy in the present 
case. Indeed, this is clear from  a com parison o f the 
present case w ith the authorities cited by petitioners.

For exam ple, petitioners cite Gilligan v. Morgan, 413 
U.S. 1 (1973), where this C ourt held nonjusticiable a suit 
brought by certain students o f K ent State University 
seeking, as a result o f one incident of alleged m isconduct 
by the Ohio N ational Guard, an order setting standards 
for the training, kind of weapons, and scope and kind of



13

orders to  control the actions of the National Guard. N ot 
only did the case involve a request for broad relief based 
on an isolated incident, b u t it also involved the doctrine 
of separation o f powers in th a t the regulation o f the 
militia has been expressly entrusted  by the C onstitu tion 
to the Congress and by it, in part, to  the Executive 
branch. In contrast, in the present case, no  separation of 
powers question is involved (indeed, 42 U.S.C. §1983 is 
expressly aimed at controlling the conduct of State 
officials, such as petitioners) and the injunctive relief 
ordered below is based on a continuing pa tte rn  of 
conduct by  the petitioners which has been and remains a 
substantial contributing cause o f the violations o f the 
constitu tional rights o f respondents and their class.

Petitioners’ reliance on O’Shea v. Littleton, 414 U.S. 
488 (1974), is equally misplaced. O ’Shea involved the 
propriety o f a com plaint for injunctive relief against 
allegedly unconstitu tional conduct by a State magistrate 
and a State judge. This C ourt held th a t the plaintiffs 
there failed to  present a case or controversy in th a t there 
were insufficient allegations o f continuing conduct which 
was likely to  affect the plaintiffs, none o f whom was 
“identified as him self having suffered any injury in the 
m anner specified.” 414 U.S. a t 495. In the present case, 
however, the petitioners have n o t even contested  the trial 
co u rt’s findings of continuing illegal conduct by  the 
police which directly im pacts on the respondents’ class 
and inadequate contro l o f th a t conduct by petitioners. 
The alternative ground o f decision in O ’Shea was simply 
an application o f the rule established in Younger v. 
Harris, 401 U.S. 37 (1971), against federal court in terfer­
ence w ith S tate criminal prosecutions. Here, o f course, no



14

such interference is p resen t.12 Cf. Doran v. Salem Inn, 
Inc., 43 U.S.L.W. 5039 (June 30, 1975); Steffel v. 
Thompson, 415 U.S. 452 (1974).

In this case, of course, b o th  unconstitu tional conduct 
by the police and resulting injury to  respondents have 
been found by the lower courts, and those findings are 
not even contested here. Accordingly, this C ourt’s sta te­
m ent in Laird v. Tatum, 408 U.S. 1 (1972), with 
reference to judicial control o f unconstitu tional conduct 
by the m ilitary is of particular applicability to  the 
unconstitu tional police activity involved in this case:

“ [W jhen presented w ith claims o f judicially cog­
nizable injury resulting from  m ilitary intrusion in to  
the civilian sector, federal courts are fully em ­
pow ered to  consider claims of those asserting such 
injury; there is nothing in our N ation ’s history or in 
this C ourt’s decided cases, including our holding 
today, tha t can properly be seen as giving any 
indication tha t actual or th reatened injury by reason 
of unlawful activities of the m ilitary w ould go 
unnoticed or unrem edied.” 408 U.S. a t 15-16.

1 2Petitioners’ reliance on Hague v. CIO, supra, is som ewhat 
m ysterious. Petitioners claim th a t this C ourt’s refusal to  perm it a 
lower court to  save a blatantly  unconstitu tional ordinance by 
rewriting it should be read as a determ ination tha t m andatory relief 
against city officials is generally im proper. What petitioners ignore 
is tha t the relief ordered by this C ourt was m ore severe than th a t 
ordered by the lower court, nam ely, an injunction against 
enforcem ent of the ordinance altogether. In fact, Hague stands as 
strong support for the lower cou rts’ decisions here in tha t it 
recognizes the propriety of equitable relief against unconstitutional 
conduct by city officials such as petitioners.



15

2. Respondents Have No Adequate Rem edy at 
Law.
Petitioners claim tha t injunctive relief is inappropriate 

here because respondents have an adequate rem edy at 
law. This con ten tion  is wholly w ithout m erit.

First, 42 U.S.C. §1983 specifically authorizes injunc­
tive relief against unconstitu tional official action and 
“where . . . there is a persistent pattern  o f police m iscon­
duct, injunctive relief is appropriate.” AUee v. Medrano, 
supra, 416 U.S. at 815 (m ajority opinion), 838 (dissent­
ing opinion); Dombrowski v. Pfister, 380 U.S. 479, 
485-89 (1965); Hague v. CIO, supra. This, o f course, is 
precisely such a case.

Second, suits for damages by those subjected to 
unconstitu tional conduct by the police will no t suffice to  
prevent recurrence o f such m isconduct. For instance, the 
offending police officers will generally be judgm ent p roof 
and their superiors m ay have a partial im m unity to  
damage suits though n o t to  injunctive action. See Wood 
v. Strickland, 95 S. Ct. 992 (1975); Scheuer v. Rhodes, 
416 U.S. 232 (1974). Moreover, as the D istrict C ourt 
specifically found here, private damage suits are “ inade­
quate” because they

“ are expensive, time-consuming, n o t readily availa­
ble, and not notably  successfu l. . . .” (App. at 126a, 
357 F. Supp. a t 1319.)

This conclusion by the D istrict C ourt is in full agreement 
with the views o f Chief Justice Burger:

“ The problem s of bo th  error and deliberate m iscon­
duct by law enforcem ent officials call for a w orka­
ble rem edy. Private damage actions against individ­
ual police officers concededly have n o t adequately 
m et this requirem ent . . . ."B ivens v. Six Unknown 
Fed. Narcotics Agents, 403 U.S. 388, 421 (1971).



16

In sum, respondents and o ther citizens of Philadelphia 
are entitled to  an effective rem edy against the sort o f 
police m isconduct shown here and, contrary  to  peti­
tioners’ contentions, a private action for damages is not 
such a remedy. As the lower courts have found here, 
only injunctive relief offers any hope o f effectively 
protecting the constitu tional rights of citizens from 
system atic police abuse.

3. The District Court Was Justified in Ordering 
the Department To Improve its Handling o f  Citi­
zens’ Complaints.
Petitioners nex t claim tha t the federal judiciary is 

wholly w ithout pow er to order a municipal police 
departm ent to  establish adequate internal procedures for 
handling citizens’ com plaints about police m isconduct 
because the determ ination as to  the necessity for such 
procedures is “ discretionary” and, therefore, the deci­
sions of police officials on this isssue m ust be left to  the 
judgm ent of the electorate. But petitioners wholly fail to 
recognize tha t the Fourteenth  A m endm ent, and 42 
U.S.C. §1983, were enacted for the specific purpose of 
limiting the pow er of elected or appointed officials to 
engage in unconstitu tional trea tm ent of citizens. The fact 
that a m ajority of voters in a city might possibly approve 
of the sort o f police violations o f the C onstitu tion shown 
in this case does n o t make the evaluation of police 
conduct a political question or preclude an injunction 
which requires a police departm ent to  m odify its existing 
citizen com plaint procedure in order to  end a pattern  of 
unconstitu tional conduct.

Moreover, contrary  to the contentions of petitioners 
tha t a requirem ent th a t a police departm ent establish 
some form of internal review and control of the conduct 
of its members is a novel and oppressive concept, it can



17

safely be stated tha t every professional evaluator of 
police affairs is in agreement tha t an adequate form  of 
internal control is a necessity for a properly run police 
departm ent. See, e.g., S tandard 5.4, and related com m en­
tary at pages 164-67, o f the American Bar A ssociation’s 
Standards Relating to the Urban Police Function (1973), 
which were unanim ously approved by the Executive 
Com m ittee o f the International Association o f Chiefs of 
Police in December, 1972; National Advisory Commis­
sion on Criminal Justice Standards and Goals, Report on 
Police, Model Standards fo r  Police Internal Discipline, 
Standards 19.1-19.6 (1973); The President’s Commission 
on Law Enforcem ent and A dm inistration of Justice, The 
Challenge o f  Crime in a Free Society, at 115-16 (1967), 
and Task Force Report: The Police, at 193-97 (1967); 
Note, The Administration o f  Complaints by Civilians 
Against the Police, 77 Harv. L. Rev. 499 (1964).

The reason for this general agreement is bo th  straight­
forward and exem plified by the facts o f this case. As the 
President’s Commission on Law Enforcem ent and Adm in­
istration of Justice has stated:

“There is no profession whose members are m ore 
frequently tem pted to  misbehave, or provided w ith 
more opportunities to  succumb to  tem ptation , than 
law enforcem ent. The opportunities arise, on the 
whole, from  the simple physical fact tha t policemen 
generally w ork alone or in pairs, ou t o f sight o f their 
colleagues and superiors.” The Challenge o f  Crime in 
a Free Society, a t 115.

In such a contex t, where the basic constitutional rights 
of citizens are at stake, it is particularly im portan t tha t 
institutional restraints on official m isconduct exist. When 
the absence o f an adequate system o f internal control 
can, as here, be shown to  have contribu ted  to  an



18

excessive num ber of instances o f unconstitu tional police 
conduct, it is well w ithin the pow er o f a federal court to 
require tha t effective internal controls be institu ted .

Indeed, in this connection it is m ost revealing to  
com pare the injunction entered by the lower courts w ith 
tha t approved by this C ourt in Allee v. Medrano, supra. 
Thus, in Allee this C ourt approved an injunction which 
prohibited specific acts of m isconduct in the carrying out 
of their duties by members o f the Texas Rangers on the 
ground tha t such an injunction was necessary to  p ro tect 
the constititu tional rights of the respondents in tha t case. 
This C ourt approved such an injunction even though, to 
some exten t, the result was to  make the Rangers subject 
to possible contem pt proceedings for im proper arrest and 
similar decisions in the field. Here, in contrast, the 
injunction requires only the prom ulgation and m ainte­
nance by high-ranking city officials of a system of 
internal police procedures for handling citizens’ com ­
plaints.

It w ould appear self-evident that, as the lower courts 
concluded, an order instructing the Philadelphia Police 
D epartm ent to  institu te procedures aimed at increasing 
its ability to  discipline its errant members is a far more 
innocuous interference w ith the D epartm ent’s operations 
and com m and structure than  any o ther type o f order 
which could provide the relief the lower courts found 
necessary.13

1 3
Since the petitioners have consented to  the en try  of an 

injunction prohibiting the police from  certain form s of m isconduct 
in Alexander v. R izzo , (E.D. Pa., C.A. No. 70-992), it is possible 
th a t they believe, as a m atter o f legal principle, tha t prohibitory  
injunctions are preferable to  m andatory ones. But see Develop­
m ents in the Law —Injunctions, 78 Harv. L. Rev. 994, 1061-63 
(1965).



19

4. Petitioners’ Objections to the Precise Form o f
the Trial Court’s Decree Are Wholly Unsupported
by A ny Evidence o f  Record.
The petitioners devote six pages o f their Brief (pages 

29-35) to  a litany of horrible consequences which they 
assert will follow from  the trial co u rt’s judgm ent in this 
case. However, petitioners failed to  m ake a. single one of 
these objections to  either the trial court or the C ourt of 
Appeals in this case, and there is no  evidence a t all in the 
record of this case to  support any o f these objections. 
Indeed, as the Brief for respondents shows in detail, 
m any of the objections which petitioners now assert m ost 
vigorously relate to  m atters which are either existing 
practices of the Philadelphia Police D epartm ent or were 
suggested initially to  the trial court by petitioners in the 
proposed form of order subm itted by them . The im pro­
priety of such argum ents by petitioners in this Court 
should be readily apparent.

Petitioners are asking this Court to  serve, in effect, 
as a trial court for the purpose o f making factual 
determ inations as to issues wholly outside the record. 
Such a role contem plates th a t this Court could approp­
riately reverse the decisions of the District Court and 
the Court o f Appeals in this case on alleged “ facts” 
not of record and on grounds never presented to  
either of those courts. This Court has invariably 
rejected such attem pts to  circumvent its appellate func­
tions in the past. E.g., Witherspoon v. Illinois, 391 
U.S. 510, 516-18 (1968), and General Motors Corp. 
v. Washington, 377 U.S. 436, 449 (1964) (Court will 
no t reach claims unsupported  by  evidence in the reco rd ); 
Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 
(1970), and United States v. Spector, 343 U.S. 169, 172 
(1952) (Court will not decide issues not raised below 
by petitioners). And it should do so again in this case.



20

Furtherm ore, petitioners have totally  ignored para­
graph 7 of the trial co u rt’s order (App. Pet. Cert, at 23a) 
which states “ this C ourt reserves jurisdiction to  m odify 
this Order and the attached  procedures and to  grant such 
further relief as may be appropriate, upon the application 
of any party  in in terest.’’ In the event th a t petitioners 
seriously believe any o f the specific provisions of the 
order entered below would unduly interfere w ith the 
operations of the Philadelphia Police D epartm ent, they 
will be at liberty , after an affirm ance by this Court, to 
seek a m odification of those procedures from the D istrict 
judge  in a proceeding in which their objections m ay be 
fully explored and appropriately resolved.14

Finally, petitioners’ predictions of adverse conse­
quences from the procedures established by the trial 
co u rt’s order are purely speculative and, in fact, contrary 
to the judgm ent o f m ost professional police adm inistra­
tors. For example, in the Model Standards for Police 
Internal Discipline prom ulgated by the National Advisory 
Commission on Criminal Justice Standards and Goals, it 
is stated tha t “ the chief executive o f every police agency 
im mediately should insure tha t the investigation o f all 
com plaints from the public, and all allegations of criminal 
conduct and serious internal m isconduct, are conducted 
by a specialized individual or un it of the involved police

14In this connection, the trial court has already recognized the 
need to  minimize interference w ith the day-to-day operations of 
the Police D epartm ent.

“ [D ] eference to  the essential role o f the police in our 
society does m andate th a t intrusion by  the courts into this 
sensitive area should be limited, and should be directed 
tow ard insuring tha t the police themselves are encouraged 
to rem edy the situation .” App. a t 127a, 357 F. Supp. at 
1320.



21

agency.” Standard 19.3. Similarly, S tandard 19.5(3) 
provides that: “An adm inistrative factfinding trial board 
should be available to  all police agencies to  assist in the 
adjudication phase.” Indeed, as the authorities cited at 
page 17, supra, uniform ly recognize, there is no serious 
disagreement among police professionals (o ther than 
petitioners) w ith the proposition th a t any properly run 
Police D epartm ent should have an effective internal 
mechanism, such as th a t required by the trial c o u rt’s 
order in this case, for investigating and adjudicating 
claims of m isconduct by police officers.

CONCLUSION

As the foregoing discussion dem onstrates, the tw o 
lower courts found, on abundant evidence, tha t the 
petitioners herein are responsible for a continuing pattern  
of unconstitu tional conduct by the Philadelphia Police 
D epartm ent. Taking careful consideration o f the neces­
sity for minimal interference w ith Police D epartm ent 
procedures, the lower courts entered an injunction which 
they found to  be the least intrusive relief which could 
potentially  rem edy the violations found. The petitioners’ 
legal arguments concerning the lower courts’ asserted lack 
of pow er to order the D epartm ent to  improve its



22

procedures for handling citizens’ com plaints of police 
m isconduct are w ithout m erit and their objections to the 
specifics of the order are w ithout foundation in the 
record. Accordingly, the lower courts’ decisions should 
be affirm ed by this Court.

Respectfully subm itted,

Peter Van N. Lockwood 
Caplin & Drysdale 
1 101 - 17th Street, N.VV. 
Washington, D.C. 20036

David Bonderman 
Arnold & Porter 
1229 - 19th Street, N.W. 
Washington, D.C. 20036

Attorneys fo r  Amicus Curiae.

O f Counsel:
J. Harold Flannery 
Paul R. Dimond 
William E. Caldwell 
Norman J. Chachkin

520 Woodward Building 
Washington, D.C. 20005

Ju ly , 1975



' V