Thomas v. County of Los Angeles Brief for Appellees
Public Court Documents
November 13, 1991
Cite this item
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Brief Collection, LDF Court Filings. Thomas v. County of Los Angeles Brief for Appellees, 1991. e1697ff8-c59a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f8d5d5ba-4ac6-4b16-b97e-83f93965eda5/thomas-v-county-of-los-angeles-brief-for-appellees. Accessed January 01, 2026.
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Nos. 91-56047, 91-56048
y AN 1 6 1S92
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARREN THOMAS, et al.,
Plain tiifs-Appellees,
vs.
COUNTY- OF LOS ANGELES, et a!.,
L>c fe n dan Is- Appellants.
On Appeal from a Preliminary Injunction Order in
the United States District Court for the
Central District of California
BRIEF FOR APPELLEES
HUGH MANES
CAROL WATSON
MANES & WATSON
3600 Wilsliire Bivd.. Suite 1710
Los Angeles, CA 90010
(213) 381-7793
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Sq. West, Room 327
New York, NY 10012
( 212) 998-6198
NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC.
PATRICK O. PAT1ERSON
BILL LANN LEE
KEVIN S. REED
CONSTANCE L. RICE
3i5 W. Ninth St., Suite 208
lx>s Angeles, CA 90015
(213) 624-2405
JULIUS L. CHAMBERS
CLYDE E. MURPHY
MARINA C. HSIEII
ALAN JENKINS
99 Hudson St., Suite 1600
New York, NY 10013
(212) 219-1900
Attorneys for Plaintiffs-Appellees
(Additional Counsel on next page)
NAACP LEGAL DEFENSE FUND
LIBRARY
99 HUDSON STREET
NEW
YORK, N. Y. 10013
Additional Plaintiffs-Appellees’ Counsel:
JOHN C. BURTON
JAMES S. MULLER
BURTON & NORRIS
301 North Lake Street, 8th Floor
Pasadena, CA 91101
(818) 449-8300
GARY S. CASSELMAN
11340 West Olympic Blvd., Suite 250
Los Angeles, CA 90064
(310) 478-8388
SCOTT CRAIG
CRAIG & GOLDSTEIN
10866 Wilshire Blvd., 15th Floor
Los Angeles, CA 90024
(310) 441-4111
RICHARD EIDEN
2110 South Hill St., Suite O
Oceanside, CA 92054
(619) 967-9101
JAMES FOSTER
4929 Wilshire Blvd., Suite 915
Los Angeles, CA 90010
(213) 936-2110
ART GOLDBERG
SANDOR FUCHS
GOLDBERG & FUCHS
1467 Echo Park Ave.
Los Angeles, CA 90020
(213) 250-5500
ROBERT MANN
DONALD COOK
MANN & COOK
3600 Wilshire Blvd., Suite 1710
Los Angeles, CA 90010
(213) 252-9444
TED YAMAMOTO
1200 Wilshire Blvd., Suite 206
Los Angeles, CA 90017
(213) 482-2248
Attorneys for Plaintiffs-Appellees
Nos. 91-56047, 91-56048
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARREN THOMAS, et al„
Plaintiffs-Appellees,
vs.
COUNTY OF LOS ANGELES, et al.,
Defendants-Appellants.
On Appeal from a Preliminary Injunction Order in
the United States District Court for the
Central District of California
BRIEF FOR APPELLEES
HUGH MANES
CAROL WATSON
MANES & WATSON
3600 Wilshire Blvd., Suite 1710
Los Angeles, CA 90010
(213) 381-7793
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Sq. West, Room 327
New York, NY 10012.
(212) 998-6198 ,
NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC.
PATRICK O. PATTERSON
BILL LANN LEE
KEVIN S. REED
CONSTANCE L. RICE
315 W. Ninth St., Suite 208
Los Angeles, CA 90015
(213) 624-2405
JULIUS L. CHAMBERS
CLYDE E. MURPHY
MARINA C. HSIEH
ALAN JENKINS
99 Hudson St., Suite 1600
New York, NY 10013
(212) 219-1900
Attorneys for Plaintiffs-Appellees
TABLE OF CONTENTS
ISSUE PRESENTED FOR REVIEW ........................................................................................... 3
STATEMENT OF JURISDICTION.............................................................................................. 3
STATEMENT OF THE CASE....................................................................................................... 3
A. Nature of the C a se ......................................................................................................... 3
B. Proceedings Below ......................................................................................................... 4
C. Attorneys' Fees ...................................................................................................................................... 9
D. Statement of Facts ......................................................................................................... 9
1. Introduction......................................................................................................... 9
2. The Pattern of Constitutional Violations by Lynwood Deputies ................ 10
a. Beatings ................................................................................................ 13
b. Use of Firearms To Terrorize, Maim, and K ill............................... 18
c. Abusive Searches................................................................................ 20
3. Racially Motivated Harassment........................................................................ 23
a. Racial Slurs, Intimidation and Ridicule . . ........................................ 23
b. The Vikings .......................................................................................... 24
c. Policy of Targeting Gangs for "Special Attention"............................... 26
4. Retaliation......................................................................................................... 30
5. Cover C harges.................................................................................................. 32
6. Discouragement of Complaints........................................................................ 33
7. Department-Wide Assignment Policies .......................................................... 35
8. Tacit Authorization of Unconstitutional Conduct........................................... 35
ARGUMENT ............................................................................................................................... 39
I. THE DISTRICT COURT'S ORDER GRANTING A PRELIMINARY
INJUNCTION IS SUBJECT TO REVIEW ONLY FOR ABUSE OF
l
39
41
42
45
46
49
50
51
52
55
55
55
58
60
60
DISCRETION
NO LEGAL RULE INVOKED BY DEFENDANTS REMOTELY
REQUIRES REVERSAL ON THIS RECORD.............................................
A. RIZZO DOES NOT BAR THE PRELIMINARY INJUNCTION
ISSUED BELOW..................................................................................
B. LYO N S INTERPOSES NO OBSTACLE TO THE
INJUNCTION........................................................................................
C. THE INJUNCTION DOES NOT TRESPASS ON ANY
PRINCIPLE OF FEDERALISM.........................................................
D. ANDERSON V. CREIGHTON DOES NOT REVERSE THE
BALANCE OF EQUITIES THAT TIPS IN FAVOR OF
ISSUANCE OF THE INJUNCTION..................................................
THE DISTRICT COURTS FINDINGS OF FACT ARE FULLY
SUPPORTED BY THE RECORD..................................................................
THE DISTRICT COURTS APPLICATION OF THE LAW TO THE
FACTS DID NOT RESULT IN AN ABUSE OF DISCRETION.................
A. THE COURT FOLLOWED THE CORRECT PROCEDURES IN
ISSUING THE PRELIMINARY INJUNCTION...............................
B. THE SCOPE OF THE PRELIMINARY INJUNCTION IS
PROPER................................................................................................
1. The Court Did Not Order Any Classwide Relief. ................
2. The Court’s Order Is Narrowly Tailored To Minimize
Federal Intrusion And Is Limited To The Scope Of The
Probable Constitutional Violations Established By The
Record........................................................................................
3. The Geographic Scope Of The Order Derives From
Defendants’ Representations To The Court Below................
C. THE DISTRICT COURT’S ORDER COMPLIES WITH THE
FORMAL REQUIREMENTS OF RULE 65(d), FED. R. CIV. P. .
1. The District Court's Oral And Written Findings Of Fact And
Conclusions Of Law Set Forth The Reasons For Issuance Of
The Preliminary Injunction.......................................................
2. The District Court’s Order Is Sufficiently Specific In Its
ii
Terms, And It Describes In Reasonable Detail The Acts
Sought To Be Restrained.......................................................
iii
TABLE OF AUTHORITIES
Cases . page
Allee v. Medrano, 416 U.S. 802 (1971) ................................................................................ passim
Anderson v. City of Bessemer City, 470 U.S. 564 (1985) ............................................... 7, 44, 45
Anderson v. Creighton, 483 U.S. 635 (1987) .............................................................................. 43
Aoude v. Mobil Oil Corp.. 862 F.2d 890 (1st Cir. 1988)............................................................ 48
Bennett v. City of Slidell, 728 F.2d 762 (5th Cir. 984) ............................................................... 41
Bethlehem Mines Corp. v. United Mine Workers of America,
476 F.2d 860 (3d Cir. 1973) ........................................................................................... 47
Bracco v. Lackner, 462 F. Supp. 436 (N.D. Cal. 1978) .............................................................. 46
Caribbean Marine Services Co. v. Baldrige,
844 F.2d 668 (9th Cir. 1988) ........................................................................................... 49
Chemlawn Services Corp. v. GNC Pumps, Inc.,
823 F.2d 515 (Fed. Cir. 1987)......................................................................................... 48
City of Canton v. Harris, 103 L.Ed. 2d 412 (1989)..................................................................... 41
City of Los Angeles v. Lyons, 461 U.S. 95 (1983).................................................................passim
Clark v. County of Los Angeles, CV 91-3689 TJH (GHKx) ...................................................... 4
Combs v. Ryan s Coal Co., 785 F.2d 970 (11th Cir. 1986),
cert, denied, 479 U.S. 853 (1986) ..................................................................................... 55
Davis v. City and County of San Francisco, 890 F.2d 1438 (9th Cir.
1989), cert, denied sub nom. San Francisco Firefighters Local 798
v. City and County of San Francisco, 111 S.Ct. 248 (1990) .......................................... 54
Eng v. Smith, 849 F.2d 80 (2d Cir. 1988)..................................................................................... 43
Flynt Distributing Co. v. Harvey, 734 F.2d 1389 (9th Cir. 1984)............................................... 46
Fuller v. County of Los Angeles, No. CV 90-1601 (C.D. Cal.) ................................................. 3
Gibbs v. Buck, 307 U.S. 66 (1938)................................................................................................ 48
IV
Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) ................................................... ................... 41
Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983) .......................................................... 42
Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) ............................................. 48
Harris v. City of Pagedale, 821 F.2d 499 (8th Cir. 1987)............................................................ 41
Henry Hope X-Ray Products, Inc. v. Marron Carrel, Inc.,
674 F.2d 1336 (9th Cir. 1982) ......................................................................................... 54
Hoffritz v. United States, 240 F.2d 109 (9th Cir. 1956)............................................................... 46
Hvbritech Inc. v. Abbott Laboratories,
849 F.2d 1446 (Fed. Cir. 1988)......................................................................................... 48
ICC v. Rio Grande Growers Co-op, 564 F.2d 848 (9th Cir. 1977)............................................. 53
International Longshoremen’s Association v. Philadelphia
Marine Trade Association, 389 U.S. 64 (1967) ............................................................... 57
Johnson v. Radford, 449 F.2d 115 (5th Cir. 1971) ............................................................... 51, 58
LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985)....................................................................... 40
Lawrence v. St. Louis-San Francisco Ry. Co., 274 U.S. 588 (1927).......................................... 55
Los Angeles Memorial Coliseum Commission v. National
Football League, 634 F.2d 1197 (9th Cir. 1980) ...................................................... 43, 49
Lynch v. Baxley, 744 F.2d 1452 (11th Cir. 1984).......................................................................... 43
Masalosalo v. Stonewall Ins. Co., 718 F.2d 955 (9th Cir. 1983) . . .-.......................................... 48
Matter of Thorpe, 655 F.2d 997 (9th Cir. 1981)..........................................................................48
McLaughlin v. County of Riverside, 888 F.2d 1276 (9th Cir. 1988)........................................... 43
Missouri v. Jenkins, 109 L.Ed.2d 31 (1990) ................................................................................ 44
Monell v. Department of Social Services, 436 U.S. 658 (1978) ................................................. 41
Nelson v. IBEW Local 46, 899 F.2d 1557 (9th Cir. 1990)................................................... 40, 58
Nicacio v. INS, 797 F.2d 700 (9th Cir. 1985) .............................................................................. 40
NLRB v. Express Publishing Co., 312 U.S. 426 (1941).............................................................. 58
v
NORML.v. Mullen. 608 F. Supp. 945 (N.D. Cal. 1985);
affd in part, mod. in part, 796 F.2d 276 (1991) .......................................................................... 43
Pennhurst State School and Hospital v. Halderman,
465 U.S. 89 (1984)............................................................................................................. 52
Perfect Fit Industries v. Acme Quilting Co., 646 F.2d 800
(2d Cir. 1981), cert, denied, 459 U.S. 832 (1982)............................................................ 56
Professional Assn, of College Educators v. El Paso Community
College District, 730 F.2d 258 (5th Cir. 1984), cert, denied,
~ 469 U.S. 881 (1984)........................................................................................................... 54
Pulliam v. Allen, 466 U.S. 522 (1984) ......................................................................................... 44
Regal Knitwear v. NLRB, 324 U.S. 9 (1945) .............................................................................. 53
Republic of the Philippines v. Marcos, 862 F.2d 1355
(9th Cir. 1988), cert, denied 490 U.S. 1035 (1989)................................................... 36, 46
Rizzo v. Goode, 423 U.S. 362 (1976).....................................................................................passim
Ross-Whitney Corp. v. Smith, Kline & French
Laboratories, 207 F.2d 190 (9th Cir. 1953)............................................................... 35, 55
Samples v. City of Atlanta, 846 F.2d 1328 (11th Cir. 1988)............. : ........................................ 41
Sampson v. Murray, 415 U.S. 61 (1974)....................................................................................... 55
San Francisco-Oakland Newspaper Guild v. Kennedy,
412 F.2d 541 (9th Cir. 1969) ........................................................................................... 46
Schmidt v. Lessard, 414 U.S. 473 (1974) ..................................................................................... 55
Smith v. City of Fontana, 818 F.2d 1411 (9th Cir. 1987)............................................................ 41
Supreme Court of Virginia v. Consumers Union. 446 U.S. 719 (1980) .................................... 44
Tribal Village of Akutan v. Hodel, 859 F.2d 662 (9th Cir. 1988)............................................... 44
United States v. Crookshanks, 441 F. Supp. 268 (D. Ore. 1977)............................................... 53
United States v. United States Gypsum Co., 333 U.S. 364 (1948)............................................. 45
Vision Sports, Inc. v. Melville Corp.,
888 F.2d 609 (9th Cir. 1989) ........................................................................................... 36
vi
White v. Washington Public Power Supply System,
669 F.2d 1286 (9th Cir. 1982) ......................................................................................... 55
Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983)....................................................................... passim
Statutes and Rules page
42 U.S.C. § 1988 ............................................................................................................................... 8
Cir. Rule 28-2.3 ................................................................................................................................. 8
Rule 23, Fed. R. Civ. P ............................................................................................................... 3, 4
Rule 52(a), Fed. R. Civ. P .................................................................................................... passim
Rule 65(d), Fed. R. Civ. P .................................................................................................... passim
Others page
7 Moore’s Federal Practice H 65.12 (2d ed. 1991)....................................................................... 47
9 Moore’s Federal Practice 11 203.11, p. 3-48 (2d ed. 1991)........................................................47
C. Wright & A. Miller, 11 Federal Practice and
Procedure § 2949, pp. 469-473 ............. 46
ISSUE PRESENTED FOR REVIEW
Whether the district court properly exercised its discretion in granting a preliminary
injunction requiring the Los Angeles County Sheriffs Department to follow its own stated policies
and guidelines governing searches and use of force pending a trial on the merits, where:
a. The record established a persistent pattern of constitutional violations:
b. The court applied the correct legal standards;
c. The court's findings of fact are clearly supported by the record; and
d. The court carefully weighed the relevant factors and issued an injunction in the proper
form.
STATEMENT OF JURISDICTION
Appellees accept the appellants' statements of jurisdiction.
STATEMENT OF THE CASE
A. Nature of the Case
This appeal arises from an action under 42 U.S.C. §§ 1983 and 1985 challenging a pattern
of pervasive misconduct by sheriff s deputies assigned to the Lynwood station of the Los Angeles
County Sheriffs Department ("LASD"). Defendants have appealed from the district court’s grant
of a preliminary injunction requiring that, pending final determination of the action, LASD
employees shall (1) follow the LASD's own stated policies and guidelines regarding the use of force
and procedures for conducting searches, and (2) submit to the Court, in camera and under seal,
copies of reports alleging the use of excessive force. ER 1888-89.1
'This brief uses the following abbreviations: "ER" refers to Appellants' Joint Excerpts of
Record; "Supp. ER" refers to Appellees' Supplemental Excerpts of Record; "CR" refers to docket
entries in the Clerk's Record; "Cty. Br." refers to the opening brief tiled on behalf of Appellants
County of Los Angeles. City of Lynwood. Los Angeles County Sheriffs Department. Sheriff
Sherman Block. Undersheriff Robert Edmonds, Assistant Sheriffs Jerry Harper and Richard
Foreman, and Captain Bert J. Cueva; "Dep. Br." refers to the opening brief filed on behalf of 21
individual deputy Appellants; "LASD Manual" refers to the Los Angeles County Sheriffs
Department Manual of Policy and Procedures.
1
B. Proceedings Below
On September 26. 1990. 75 victims of police misconduct (the "Thomas plaintiffs")2 filed this
suit as a class action, alleging systematic lawlessness and wanton abuse of power by sheriffs
deputies assigned to the LASD station in Lynwood, a city whose population of 62.000 is 24 percent
African-American and 70 percent Latino.3 The complaint (ER 1-53) alleged 42 separate incidents -
- all occurring within the span of 104 days between February 10 and May 25, 1990 — of what the
district court characterized as "systematic and unjustified shootings, killings, beatings, terrorism, and
destruction of property caused by Los Angeles County deputy sheriffs at the Lynwood sub-station."4
ER 1957-58. The complaint named as defendants the County of Los Angeles, the LASD. the City
of Lynwood. Los Angeles County Sheriff Sherman Block, the Undersheriff and two Assistant
Sheriffs, the Commander of the Lynwood station (Captain Bert J. Cueva), 21 individual LASD
deputies, and 500 doe defendants.5 ER 4-5. Because the defendants had not taken sufficient
action to correct abuses uncovered by prior individual damage suits,6 the Thomas plaintiffs sought
to litigate their damage claims jointly and requested declaratory and injunctive relief on behalf of
2Six additional named plaintiffs appear solely as guardians ad litem on behalf of minor children.
ER 1-3.
3United States Department of Commerce, Bureau of the Census. Summary Population &
Housing Characteristics (1990), California p. 67. According to the 1980 census, the population of
Lynwood was approximately 55,000, of whom 34 percent were African-American and 43 percent
were Latino. ER 15. The 1980 per capita taxable income for residents of Lynwood was $6,222,
compared to a Los Angeles County per capita taxable income of $11,842. Id.
4One additional incident occurred on October 18. 1989. ER 98 (Demetrio Carrillo).
'The complaint also named as defendants the California Attorney General and the Los Angeles
Countv District Attorney. The district court later dismissed all claims against both of these officials.
CR 63, 137.
6Los Angeles County paid approximately $8.5 million in settlements and jury awards in
individual excessive force lawsuits against LASD in 1986-1989, and the number of such lawsuits has
steadily mounted in the last five years. Supp. ER 23. Sheriff Sherman Block has testified that his
department does not keep records of lawsuits filed against deputies, nor does it keep records of
judgments entered in such suits against deputies or against the department. ER 158-59.
2
a class pursuant to Rule 23. Fed. R. Civ. P.
The district judge who ultimately issued the preliminary injunction in Thomas, Hon. Terry
J. Hatter. Jr., at first declined even to consider the Thomas plaintiffs’ claims. In July and August
1990. the plaintiff in a separate action pending before Judge Hatter, Fuller v. County of Los Angeles,
No. CV 90-1601 (C.D. Cal.), had moved for leave to file an amended complaint, to join additional
parties, and to associate additional counsel in his case. Appellees' Request for Judicial Notice on
Appeal, p. 4. In essence, these motions sought to amend the complaint in Fuller - a § 1983 case
alleging police misconduct by Lynwood deputies — to state all of the claims later pleaded in
Thomas. The district court denied this motion, expressing concern about the effect that the
proposed amendment might have on the rights of the individual deputy defendants in Fuller.
Appellees’ Request for Judicial Notice on Appeal, pp. 13-14.
The Thomas complaint was filed together with a "notice of related case" advising the court
of the Thomas plaintiffs’ position that their case and Fuller were related. See ER 1963 (CR 2).
The Thomas case was initially assigned to Hon. A. Wallace Tashima. Thereafter, in accordance
with the district court's local rules. Judge Tashima determined that the Thomas case was properly
transferable and, with Judge Hatter's consent, ordered that it be transferred to Judge Hatter's
calendar. See ER 1963 (CR 25).3
In November and December. 1990, defendants County of Los Angeles. City of Lynwood.
LASD, Sherman Block, and Bert J. Cueva filed numerous motions, including motions to dismiss
part or all of the complaint on various grounds: to stay all discovery and other proceedings in the
action on various grounds; to stay all discovery relating to class certification and to dismiss the class * *
As the district court noted, a motion to certify the case as a class action had not been filed at
the time the court issued its preliminary injunction. ER 1958. On October 28. 1991. plaintiffs filed
such a motion, which is currently pending in the district court. Supp. ER 230 (CR 162).
sContrary to the assertion in the individual deputy defendants’ brief in this Court, plaintiffs did
not file their notice of related case "(ujpon learning that the instant case had been assigned to
Judge Tashima." Dep. Br., p. 10. The record shows that plaintiffs filed the complaint and notice
of related case at the same time. See ER 1963 (CR 1, 2).
3
allegations of the complaint: and to sever plaintiffs' claims of entity and supervisorial liability from
their claims against individual deputies. CR 28-30. 34-35. On January 2, 1991, the California
Attorney General moved to dismiss all claims against him. CR 37. These motions were fully
briefed, and the district court took them under submission in January 1991. See CR 36.
Anticipating that the district court’s disposition of these motions would significantly affect the
course of future proceedings, the parties stipulated to, and the Court ordered, a stay of further
discovery pending a ruling on the motions. CR 36. 54-55.
On July 19, 1991, the district court granted the Attorney General's motion to dismiss the
claims against him but denied the defendants’ other motions.9 Supp. ER 220 (CR 63). Meanwhile,
plaintiffs' counsel had learned that the pattern of misconduct and abuse by Lynwood deputies was
continuing. On July 9, 1991, 35 additional plaintiffs (the "Clark plaintiffs") filed a complaint
alleging further unlawful acts by Lynwood deputies. Clark v. County of Los Angeles, CV 91-3689
TJH (GHKx) (see Appellees’ Request for Judicial Notice on Appeal, p. 23). On July 15, 1991, the
Thomas plaintiffs filed their motion for a preliminary injunction, seeking protection against specific
forms of misconduct during the pendency of the lawsuit. Supp. ER 200.
In support of their preliminary injunction motion, plaintiffs filed over 200 pages of
documentary evidence, including 58 declarations detailing the deputies' misconduct and 33 color
photographs10 of injuries and property damage suffered by the victims. ER 54-260. Plaintiffs also
relied on documents they had previously filed in opposition to defendants’ pending motions,
including certified copies of the declarations of 11 deputies and news reports concerning the
existence and activities of the "Vikings," a white-supremacist gang of deputies operating within the
Lynwood substation. Supp. ER 48-199. Defendants responded with more than 1,200 pages of
9On August 21, 1991, the Los Angeles County District Attorney moved to dismiss the claims
against him. CR 77, 78. The court granted this motion on September 24, 1991. CR 137.
10In their Excerpts of Record, defendants supplied the Court with indecipherable black and
white copies of most of these photographs, and they omitted one altogether. Plaintiffs have
provided the Court with accurate color photocopies to be substituted for the unintelligible copies
filed by defendants.
4
declarations and other documents in an effort to refute plaintiffs’ claims. ER 352-780, CR 73-76.
In reply, plaintiffs filed 25 additional declarations and other documents. ER 875-904, 1395-1577.
Plaintiffs, but not defendants, requested an opportunity to present oral testimony on the motion.
See ER 1967 (CR 79); see also Plaintiffs' Reply Memorandum in Support of Motion for Preliminary
Injunction, p. 3 (CR 116).
On September 9, 1991, the district court heard the arguments of counsel, asked counsel for
all parties to review LASD’s stated policies and guidelines, and directed counsel to report to the
Court regarding the extent to which those policies and guidelines covered the misconduct alleged
in plaintiffs’ motion. ER 1921-22. Counsel for the parties subsequently conferred and submitted
a joint statement to the court which set forth each specific item of relief sought by plaintiffs in
conjunction with the language of each LASD policy and guideline the parties agreed was relevant.
ER 1741-58. The parties also filed separate statements supplementing their joint report. ER 1607-
1740, 1759-1887. Plaintiffs’ separate submission included a modified proposed order which, in
language taken from LASD’s stated policies and guidelines, specifically set forth the temporary
relief requested with respect to search procedures, use of force, racial slurs, photographs of injured
persons, and reports to the court. ER 1593.
On September 23, 1991, after hearing further argument and after reading and considering
the thousands of pages of declarations, memoranda, reports, and other documents submitted by the
parties, the district judge stated that he did not "relish getting involved in a situation where the
court is asked to indeed supervise ongoing law enforcement activities," but that he could not
"overlook the evidence that’s been presented so far." ER 1949. Faced with credible evidence of
a pattern of widespread constitutional violations by LASD deputies in Lynwood, the district court
made oral findings that serious issues had been raised and that the balance of hardships clearly fell
on the side of the plaintiffs, and stated that it was therefore his intention to grant provisional relief
in the form of "a very simple order." Id. By requiring the defendants to follow their own policies
and guidelines regarding the use of force and the conduct of searches until such time as the factual
5
record could be more fully developed at trial, the order would provide the plaintiffs with a measure
of temporary protection from further violations of their constitutional rights while minimizing the
degree of federal intrusion into the operation of a local law enforcement agency and also
safeguarding the rights of individual deputies. See ER 1948-55.
After the hearing, the district court signed an order requiring that, pending final
determination of the action, all employees of LASD, whether sworn or civilian, shall: (1) "Follow
the Department’s own stated policies and guidelines regarding the use of force and procedures for
conducting searches"; and (2) "Submit to the Court, in camera and under seal, copies of reports
alleging the use of excessive force that are in the possession of the Department on the first of every
month."11 ER 1889.
The district court stayed its order until 5:00 p.m. the following day, September 24, 1991, in
order to permit defendants to seek emergency appellate relief. ER 1889. Defendants then sought
and obtained orders of this Court granting a stay pending appeal and expediting the appeal. Orders
of Sept. 24 and Oct. 1, 1991.
On October 8, 1991, the district court filed written findings of fact and conclusions of law
which supplemented its previous oral findings. ER 1957-61. The Court concluded that plaintiffs
had established their probable success on the merits and the likelihood of irreparable injury, and
that issuance of the preliminary injunction "will serve the public interest in that it will prevent, or
at least minimize the physical, emotional, and psychological harm being suffered by plaintiffs and
the Lynwood community at the hands of Lynwood area deputies." ER 1960. Defendants
subsequently requested and obtained an extension of time in order to address the district court's
written findings and conclusions in their briefs in this Court. Order of Oct. 16. 1991.
uAt the district judge’s direction, plaintiffs’ counsel submitted a proposed order after the
hearing. The judge struck out language in the proposed order that would have limited its
application to "the jurisdiction of the Lynwood station of this Department," and he also struck out
language requiring that copies of departmental reports alleging the use of excessive force be served
on plaintiffs’ counsel, subject to an appropriate protective order. ER 1889.
6 •
C. Attorneys’ Fees
To the extent they are prevailing parties, plaintiffs intend to seek attorneys’ fees for this
appeal pursuant to 42 LLS.C. § 1988. See Cir. Rule 28-2.3.
D. Statement of Facts
1. Introduction
The district court’s findings of fact frame the issues for consideration on this appeal unless
they are "clearly erroneous" under Rule 52(a). Fed. R. Civ. P.12 In the present case, the district
court made its findings in the context of ruling on a motion for a preliminary injunction. Such
findings — made on the basis of a necessarily incomplete factual record, under properly relaxed
evidentiary standards, and in support of temporary relief to deal with an emergency situation -- are
subject only to the most limited appellate review.13 Here, each of the district court’s findings of
fact is supported by ample evidence in the record.
2. The Pattern of Constitutional Violations by Lynwood Deputies
The district court found that, "[a]s a result of the terrorist-type tactics of deputies working
in Lynwood, and policy makers' tolerance of such tactics, plaintiffs are being irreparably injured --
both physically and mentally — and their civil rights are being violated." ER 1959. Plaintiffs’
complaint set forth at least 130 abusive acts committed by Lynwood deputies — almost exclusively
against African-Americans and Latinos — within the first few months of 1990. These acts included
at least 69 warrantless, harassing arrests and detentions; 31 incidents of excessive force and
unwarranted physical abuse against handcuffed and otherwise defenseless detainees (beating,
kicking, pushing, striking with flashlights, choking, slamming doors on legs, slapping, shooting to
12Rule 52(a) requires a court of appeals to respect a district court's factual findings even though
the appellate court might have weighed the evidence differently. Where there are two permissible
views of the evidence, the district court's choice between them cannot be clearly erroneous.
Anderson v. City o f Bessemer City, 470 U.S. 564, 573-74 (1985).
13In such a case, the appellate court is "foreclosed from fully reviewing the important questions
presented. Review of an order granting or denying a preliminary injunction is much more limited
than review of an order granting or denying a permanent injunction." Zepeda v. INS, 753 F.2d 719,
724 (9th Cir. 1983).
7
maim); seven ransackings of homes and businesses; 16 incidents of outright torture (interrogation
with stun guns, beating victims into unconsciousness, holding a gun in a victim’s mouth and pulling
the trigger on an empty chamber, pushing a victim's head through a squad car window); quick-stop
driving to bang a victim’s head against the squad car screen; and uninhibited expressions of racial
animus by deputies, including use of epithets such as "niggers" and "wetbacks." ER 16-38.
The declarations submitted in support of plaintiffs' motion for a preliminary injunction
provided sworn statements supporting the allegations of the complaint. These declarations — which
the district court found "more credible than [the evidence] presented by the defendants" (ER 1959)
- also demonstrated that the pattern of gross misconduct by Lynwood deputies did not end with
the filing of plaintiffs’ complaint in September 1990, but continued to subject plaintiffs to
irreparable injury and continued to deprive plaintiffs of their civil' rights.14 ER 1959. In addition
to documenting 14 of the specific incidents described in the complaint, plaintiffs' declarations
attested to 28 further and strikingly similar incidents. The original complaint names 21 individual
deputies as defendants,15 and the declarations filed by the parties identity an additional 45 deputies
by name as being involved in such incidents.16 This total of 66 specifically identified deputies -
14In the Excerpts of Record they filed in this Court, defendants inserted the portion of their
memorandum of points and authorities below in which they argued their version of the facts set
forth in plaintiffs' declarations. ER 781-812. However, defendants did not include in their Excerpts
of Record any portions of the memoranda filed by plaintiffs in the court below. In accordance with
Circuit Rules 30-1.3 ("excerpts of record shall not include briefs or other memoranda of law filed
in the district court" unless they have independent relevance) and 30-2 (sanctions for "inclusion of
unnecessary material in excerpts of record"), plaintiffs have not included any such memoranda in
their Supplemental Excerpts of Record. Plaintiffs, however, wish to refer the Court to the detailed
statements of the facts set forth in their memoranda below. See CR 62, pp. 3-46; CR 116, pp. 13-
44.
15The complaint names as defendants deputies Rosas. Mato. Delgadillo. Garcia. Courgin. Mann.
Nordskog, Raimo. Gillies. Kiff. Brown-Vover. Boge, Mossotti. Smith. Campbell. Thompson. Pippen.
Leslie. Sheehy, and Archamba'ult.
16The declarations (ER 54-260, 352-780, 1395-1577) identity the following additional deputies
(victims of the misconduct are indicated in parentheses): Cormier (Darren Thomas), Pinesett
(Darren Thomas), Ripley (Darren Thomas, Tracy Batts). Wilkerson (Tracy Batts), Wallace (William
Leonard), Sgt. Yarborough (Jose Ortega), Pacina (the Maya family), Goran (the Rodriguez family,
the Villegas family), Orosco (the Calderon family), Benson (Richard Hernandez), Running (Richard
Hernandez), Brownell (Richard Hernandez, Alan Brahier, Thomas Monreal), Brannigan (the
8
which does not take into account the numerous deputies whom plaintiffs have named as doe
defendants but have not yet been able to identify — constitutes more than 50 percent of all deputies
assigned to the Lynwood station.17
Defendants in their briefs seek to create the impression that most if not all of the plaintiffs
and declarants subjected to abuse by Lynwood deputies are dangerous criminals.18 This assertion,
even if true, would hardly justify condoning a massive pattern of police misconduct, abusive
searches, excessive force, and physical brutality. In fact, defendants' assertion is not true. The
record shows that the great majority of the plaintiffs and declarants who were beaten and otherwise
abused by deputies have not been convicted of any criminal activity in connection with those
incidents, and that most were not even arrested during their encounters with the deputies. The
figures are as follows:19 60 plaintiffs and declarants were not'arrested;20 4 were arrested but not
Melendrez family), Schneider (Ron Dalton. Marcello Gonzales), Reeves (Ron Dalton, Marcello
Gonzales), Sgt. Coleman (Ron Dalton, Marcello Gonzales), Lt. Jackson (Ron Dalton, Marcello
Gonzales), Owen (Elzie Coleman), Costleigh (Jeremiah Randle, Cesar Guerrero), Goss (Jeremiah
Randle), Alvarado (Jeremiah Randle), Steinwand (Leopoldo Ortega), Enos (Alan Brahier), O’Hara
(Gregory Mason), Sennett (Gregory Mason), Frazier (the Villegas family), Jonsen (the Villegas
family), Roche’ (the Brown family), McCarthy (the Charles family), Anderson (Thomas Monreal),
Corina (Thomas Monreal), Caldwell (Thomas Monreal), Santana (Enrique Bugarin), Wilber (Larry
Clarke, Stanley Jones, Kelvin Davis), Archer (Kelvin Davis), Rossman (Cesar Guerrero), Dunn
(Jose Luis Hernandez), Saucedo (Richard Cruz), Luna (Lloyd Polk funeral, Ernesto Avila, Jesse
Melendrez), Chapman (Carlos Maya), Santee (Steven Thomas), Payne (Henry Castro), Sgt. Holmes
(Lloyd Polk funeral), Sgt. Golden (Demetrio Carrillo), Lt. Rudelaff (Demetrio Carrillo).
17The record indicates that there are 125 deputies at the Lynwood station, and that 85 of those
deputies are assigned to patrol duties. Supp. ER 50. See also ER 1484 (approximately 85 deputies
assigned to the Lynwood station). Without citing any reference in the record, the County
defendants have claimed in their brief on appeal that the Lynwood station has "approximately 140
sworn officers" and/or "140 patrol officers." Cty. Br.. p. 36 n.24. Using defendants' unsubstantiated
figure, the 66 deputies whom plaintiffs have identified by name constitute 47 percent of all deputies
assigned to Lynwood.
lsThe County defendants assert, for example, that "[tjhose arrested were prosecuted, usually
successfully. Of the named plaintiffs who were arrested, virtually all have been convicted or are
currently being prosecuted. ..." Cty. Br., p. 31 n.16. See also, e.g., id. at 11. 27 n.14, 42; Dep. Br..
p. 41.
19The record does not reveal the status or disposition of any charges against 12 persons: Larry
Clarke, Richard Cruz, Kelvin Davis, Raul Gonzalez, Bernardo Guzman, Stanley Jones, Fernando
Martinez, Gregory Mason, Jesse Melendrez, Raphael Ochoa, Salvador Preciado, and Teresa
Rodriguez.
9
charged with any crime;20 21 12 were charged but later had the charges dismissed by the District
Attorney or by a court;22 2 were tried and acquitted;23 9 still have pending cases;24 and only 7
pleaded guilty or were convicted of a criminal offense, of whom only 2 were convicted of crimes
involving violence.25
20Adolpho Alejade (ER 30), Brian Alejade (ER 30), James Brown (ER 21), Jose Bugarin (ER
85), Antonio Caballero (ER 30), Carolina Calderon (ER 90), Christiana Calderon (ER 90), Jorge
Calderon (ER 90), Linda Calderon (ER 90), Mary Charles (ER 107), Marianne English (ER 36),
Jeffrey Holliman (ER 142), Candi Leonard (ER 92), Sandi Leonard (ER 92), Yidefonza Lorenzana
(ER 33), Antonio Guzman (ER 134), Jose Luis Hernandez (ER 136), Alfredo Maya (ER 168),
George Maya (ER 168), Gilbert Maya (ER 168), Irene Maya (ER 168), Lupe Maya (ER 168),
Marguerita Maya (ER 168), Raul Maya (ER 168), Raul Maya, Jr. (ER 168), Ruben Maya (ER
168), Lilia Melendrez (ER 170), Natalie Mendez (ER 175), Georgia Mendibles (ER 181), Estella
Montoya (ER 31), Rebecca Montoya (ER 31), Alice Orejel (ER 192), Maria Orejel (ER 192), Delia
Osita (ER 130), Frances Palacila (ER 90), Rudy Perez (ER 170), Jeremiah Randle (ER 199),
Estella Rojas (ER 33), Aurelo Salazar (ER 208), Marta Sanchez (ER 33), Charles Scott (ER 226),
Anthony Sorto (ER 90), Elsa Tovar (ER 237), Herman Tovar (ER 237), Jaime Tovar (ER 237),
Jesus Tovar (ER 237), Marcelo Tovar (ER 237), Francisco Tovar, Sr. (ER 237), Francisco Tovar,
Jr. (ER 237), Yesenia Tovar (ER 237), Crystal Trevino (ER 31), Monique Trevino (ER 31), Brenda
Villegas (ER 246), Demesio Villegas (ER 246), Jose Villegas (ER 246), Maria Villegas (ER 246),
Ramona Fuamatu Villegas (ER 246), Herman Walker (ER 254), Alvin Washington ER 256), and
Danny Williams (ER 1570).
21 Aaron Breitigam (ER 28), Calvin Charles (ER 104), Cesar Guerrero (ER 131), and Thomas
Monreal (ER 183).
"Ernesto Avila (ER 1483, CR 27), Enrique Bugarin (ER 84), Henry Castro (ER 102-03), Kevin
Marshall (ER 702), Carlos Maya (ER 1536), Lloyd Polk (ER 151, 1506-15), William Scott (ER
702), Darren Thomas (ER 778), and Steven Thomas (ER 622).
:3Demetrio Carrillo (ER 101) and Elzie Coleman (Appellees' Request for Judicial Notice on
Appeal, p. 16).
24Tracy Batts (ER 609-10), Ron Dalton (ER 121-23. 1540-41), Marcelo Gonzales (ER 1541),
Eric Jones (ER 1541), Jose Ortega (ER 683-87), Alfonso Sanchez (Appellees' Request for Judicial
Notice on Appeal, pp. 17-20). Alfredo Sanehez (id.), Jose Sanchez (id.), and Sergio Sanchez (id.).
The Compton Municipal Court recently granted a motion to hold an evidentiary hearing into
alleged juror misconduct at the trial of the Sanchez brothers. Id.
25Jesus Avila (receiving stolen property) (ER 512-18); Alan Brahier (assault) (ER 597); Ruben
Calderon (taking vehicle for temporary use) (CR 48); Sergio Galindo (receiving stolen property)
(ER 519-22); Richard Hernandez (evading a police officer) (ER 614-18); Leopoldo Ortega (charged
with attempted murder; docket provided by defendants illegible regarding nature of conviction) (ER
543-45); and Michael Sterling (drinking in public) (ER 702).
10
a. Beatings
The record before the district court established a pervasive practice of unjustified beatings
by Lynwood deputies. The beatings, frequently accompanied by racial slurs and taunts (see
Statement of Facts, Section 3, infra), often included blows to the head and other vital parts of the
body with impact weapons.26 Plaintiffs’ declarations document 22 such incidents.
The case of plaintiffs Darren Thomas, Kevin Marshall, William Scott, and Michael Sterling
illustrates the pattern of unjustified beatings by Lynwood deputies. At about 11:30 p.m. on April
25, 1990, Darren Thomas was standing in a private yard in Lynwood, socializing with some African-
American and Latino relatives and friends after a funeral. As they talked and drank beer, two
LASD patrol cars drove up; one deputy flashed a light on the men in the yard and ordered them
to come out into the street, while two other deputies entered the yard and began pushing and
shoving, ordering the men to "get out of the goddamn yard." Once they were out on the street, they
were ordered to put their hands on the hot hood of one of the patrol cars.27 ER 228-29.
The men asked, "What’s the problem? What did we do wrong?," but the deputies ignored
their questions. Then a deputy repeatedly hit Mr. Thomas's cousin, Kevin Marshall, in the back
of the head while telling him to be quiet. Another deputy handcuffed Thomas tightly and ordered
him to go to the patrol car, repeatedly shoving and jerking him around while he attempted to
comply. The deputy also threw Thomas to the ground, causing his glasses to fall off and the frames
to crack. ER 229.
26The declarations include accounts of beatings on the head with clubs, flashlights, saps, and
other objects (Sergio Sanchez, ER 220; Alfonso Sanchez, Supp. ER 217; Jose Sanchez, ER 216;
Richard Hernandez, ER 140; Ron Dalton. ER 121; Alan Brahier, ER 73; Larry Clarke. ER 115;
Stanley Jones, ER 147; Steven Thomas. ER 235); slamming heads into curbs, a brick wall, a trailer,
and a car (Sergio Sanchez, ER 220; Alfredo Sanchez. ER 212; Calvin Charles, ER 104; Alan
Brahier, ER»73; Jose Luis Hernandez. ER 136); and kicking in the face and eyes (Leopoldo Ortega,
ER 196; Gregory Mason, ER 165). See also Complaint H 35. ER 25 (Lloyd Polk's head beaten with
billy clubs); If 38, ER 26 (Fernando Martinez's head shoved through patrol car window); 11 54. ER
31-32 (Ruben Calderon choked with flashlight).
27The record shows that it is a common practice for Lynwood deputies to force persons to place
their unprotected faces and hands against the hot hoods of patrol cars. See ER 99 (Demetrio
Carrillo); ER 229 (Darren Thomas); ER 137 (Jose Luis Hernandez); ER 120 (Richard Cruz).
11
Mr. Thomas, his unde, William Scott, and two cousins, Kevin Marshall and Michael Sterling,
were all arrested and driven to the Lynwood station. Despite repeated requests, they were not told
why they had been arrested. A deputy drove the patrol car recklessly on the way to the station,
making wild turns and slamming on the brakes so that the three handcuffed men in the back seat
would bang their heads against the metal screen separating the front seat from the back.28 ER
229.
When they arrived at the Lynwood station, the men were taken to the back room of an
"OSS" ("Operation Safe Streets," or "gang") trailer, where the deputies told them they had "fucked
up" and that the deputies would "kick [y]our ass" if they didn't shut up and quit asking so many
questions. As a deputy began to book him, Thomas asked what he was being charged with, and why
his rights had not been read to him. The deputy became angry, put the handcuffs back on Thomas,
and said, "Lve had enough of this shit." ER 229-30.
After another deputy entered, hitting his hand with his flashlight in a menacing manner, the
first deputy put Thomas in a carotid chokehold and choked him unconscious. The next thing
Thomas remembers is being hit with a jolt of electricity from a taser gun. He was on his knees,
handcuffed, and repeatedly hit and kicked while he was subjected to racial slurs. One of the
deputies said, "Yeah nigger, you ain't got no rights. We are going to make sure you don’t ask any
more questions." Thomas looked down and saw his blood and broken teeth on the floor of the
trailer. ER 230.
Thomas was again put in a chokehold and choked into unconsciousness, and he was again
shot with the taser gun. He then found himself flat on the floor, face down. As a deputy picked
him up by the neck, he heard someone say, "That's enough." He also heard Scott and Sterling
yelling, "What are you doing to him?" In response, a deputy grabbed Scott, pointed a shotgun in
Sterling's face, and told them to be quiet or they would be next. Scott and Sterling were then taken
28This is known as a "screen test" in the jargon of the deputies. See also ER 27 (Complaint 1111
39-40, Fernando Martinez).
12
out of the room, and Thomas was taken to the hospital after being threatened again with the taser
gun. His lip required stitches, his two front teeth were knocked out, and he was in severe pain.
ER 230-31.
Thomas was falsely charged with attempted assault on an officer (dismissed before trial),
drinking in public (dismissed during trial because there is no Lynwood ordinance prohibiting
drinking on private property), and resisting, delaying, and obstructing an officer (dismissed after the
jury was unable to reach a verdict). ER 231. As the district court found, several other plaintiffs
were also charged with crimes pursuant to an unwritten policy of charging persons injured by
deputies. ER 1958. See Statement of Facts, Section 5, infra.
Examples of the many other unjustified beatings by Lynwood deputies that are documented
by the record are the following:
• Deputies arrested Lloyd Polk, kicked him and repeatedly beat him with billy clubs,
breaking both his arms and inflicting other serious injuries. See ER 151, 154-57; ER 25. A
Municipal Court judge later dismissed charges that Polk had assaulted a police officer, finding that
there was "abundant evidence that the officer was using excessive force" and that "the conduct on
the part of these officers was outrageous." ER 1510, 1513. Almost ten months after the beating,
Jason Mann (one of the deputies who beat Polk) signed a declaration stating that he had never
been under investigation for the use of excessive force. Supp. ER 142.
• After Demetrio Carrillo criticized deputies for driving over a sidewalk and almost
hitting him with their patrol car in a school driveway, the deputies handcuffed Carrillo and severely
beat .him in a secluded area behind the Lynwood Civic Center while calling him "mother-fucker"
and "God-damn Mexican." ER 98-100.
• Deputies struck Jose Louie Ortega across the back and ribs with a flashlight,
denied him medical attention, and arrested him for resisting or obstructing an officer. ER 194-95.
• Deputies handcuffed Richard Hernandez, dragged him through gravel and broken
glass, and beat him with batons and flashlights while calling him "son of a bitch" and "asshole." ER
13
140-41.
• Deputies beat Ron Dalton with fists and batons. A month later, they picked him
up again, kicked him repeatedly and beat him with fists, batons, and flashlights. They then hogtied
him and kicked and beat him some more. ER 121-23.
• Deputies kicked Calvin Charles in the testicles, spread his arms and fingers back,
dragged him across asphalt by the handcuffs, shoved his head into the side of the "gang" trailer at
the Lynwood station, and punched him in the face and stomach. ER 104-106.
• Deputies dragged Alan Brahier out of his car, threw him to the pavement, hit him
on the head and body with flashlights, punched him in the eye. dragged him face down on the
pavement, slammed his head into a brick wall, and hogtied him and beat him with flashlights. ER
73-75.
• Deputies handcuffed Leopoldo Ortega and then beat, kicked, and struck him with
a flashlight or baton. A deputy also tried to break his fingers. Deputies then took him to the OSS
trailer at the Lynwood station, where he was subjected to further kicking and beating about the
face, arms, and legs. Later, at the County Jail, a large number of deputies beat him severely after
they learned that he had been charged with the attempted murder of Lynwood deputies. After this
beating, he was strapped to a bed in the hospital ward for two days. ER 196-98.
• Deputies punched Thomas Monreal in the eye. beat him in the back of a patrol
car, and slapped him at the OSS trailer at the Lynwood station. ER 184-86. Several deputies also
repeatedly beat and kicked Cesar Guerrero, who was handcuffed, at the OSS trailer. ER 131-32.
186.
• Deputies slammed Jose Luis Hernandez's face onto the hot hood of a patrol car.
grabbed him by the neck and threw him down, bent back his arm and thumb, threw him into the
patrol car, slammed the door shut on his leg, and threatened to shoot him. ER 136-38.
Deputies handcuffed Larry Clarke and Stanley Jones, and then proceeded to kick
them in the groin, lift them off the ground by their handcuffs, and beat them repeatedly with saps.
14
ER 115-16. The deputies also held guns to their heads and pulled their triggers on empty
chambers. ER 115. 147. During the beatings. Clarke told a deputy three times that Jones was an
epileptic. ER 116.
• A deputy handcuffed Richard Cruz and then hit him on the hip with a club,
saying, "I can hit you in places where there won't be any bruises." ER 119. The deputy later used
his car to force Cruz off the bicycle he was riding, and then made Cruz put his hands on the hood
of the car and punched him in the eye. ER 120.
• Deputies kicked Aurelo Salazar with their boots, repeatedly beat him with their
fists, and squashed his hand with a boot as if putting out a cigarette, breaking his thumb. One of
the deputies, who had falsely arrested Salazar before, said, "Remember me from court?" The
deputies then laughed at him and left him lying on the sidewalk as they drove away. ER 208.
• Deputies handcuffed and hog-tied Gregory Mason at the Lynwood station and
kicked him in the eye, face, and arm while calling him "asshole" and "stupid-ass nigger." ER 166.
• After they observed him driving his new BMW, deputies handcuffed and
repeatedly kicked Jeremiah Randle — a black Los Angeles school teacher — in the knee while
calling him "nigger" and heaping other verbal abuse on him. ER 201. They also severely twisted
his fingers and wrists. Id.
b. Use of Firearms To Terrorize, Maim, and Kill
The record shows that Lynwood deputies have repeatedly used their firearms to terrorize
members of the public. They routinely enter homes and other premises with their weapons drawn
and give armed orders to men. women, and young children without regard to whether their captives
pose any threat to deputies or others. See, e.g., ER 108 (deputy cocked gun and pointed it. without
provocation, at Mary Charles' 13-year-oJd son); ER 85 (when Enrique Bugarin asked if he had a
search warrant, deputy grabbed his gun and said, "This is my search warrant"); ER 80 (when told
that he was violating James Brown's constitutional rights by illegally searching his home, deputy
responded by telling Brown to shut up and putting his gun closer to Brown's face); ER 142-43
15
(while Jeffrey Holliman lay on the ground in response to deputies’ commands, deputy shoved the
muzzle of his shotgun into Holliman's neck and threatened to kill him).
Lynwood deputies also frequently use their firearms to terrorize people during beatings.
See, e.g., ER 230-31 (when William Scott and Michael Sterling protested the beating of Darren
Thomas, deputy grabbed Scott by the neck, pointed a shotgun in Sterling’s face, and told them to
be quiet or they would be next); ER 122 (during beatings, one deputy put a gun to Marcello
Gonzales' head, and another deputy put a gun in Ron Dalton's mouth and threatened to blow his
head off if he moved or tried to run); ER 115, 147 (during beatings, a deputy put a gun in Larry
Clarke’s right ear and pulled the trigger on an empty chamber, and another deputy twice placed the
barrel of his gun behind Stanley Jones’ head and pulled the trigger on an empty chamber).
The record further demonstrates that Lynwood deputies misuse their firearms to kill or
maim unarmed persons. See ER 149-50 (8 to 12 deputies surrounded, shot, and killed William
Leonard without justification); ER 63 (after deputies shot and wounded Tracy Batts in the leg,
deputy directed a Compton police officer to unleash his attack dog on Batts); ER 117 (deputy fired
at Elzie Coleman 23 times without justification, hitting him in the leg, thumb, torso, arm, and
testicles); ER 125-26 (after yelling to his partner to "[mjove so I can shoot his black ass," deputy
shot Kelvin Davis in the buttocks, causing him to lose one kidney and part of his intestines; as
Davis lay wounded on the ground, the other deputy kicked him in his side and face, saying, "You
shouldn’t have been running anyway, nigger").29
c. Abusive Searches
The record contains evidence of two searches of a business and ten searches of homes in
which Lynwood deputies stormed in during the early morning hours without giving notice of their
identity or time for the occupants to answer the door; they destroyed property; they threw property
Z9See also Supp. ER 31-45 (October 1990 newspaper study reporting that deputies shot at least
56 people under "seriously questioned circumstances" between 1985 and 1990); ER 1573, 903
(deputies shot and killed an unarmed African-American man in August 1991 and placed an object
near or under his body); ER 901-02 (deputies shot and killed an unarmed Latino man in August
1991).
16
on the floor or from room to room; they terrorized the occupants by brandishing weapons; they
forced whole families to stand or kneel, nearly naked, in the cold night air for long periods of time;
they confiscated property not identified in search warrants; they shoved or needlessly moved the
frail and ill; and they left people terrified and suffering psychologically and physically from the
experience.
The January 24, 1991, raid on the Villegas family's home is illustrative. At 5:30 a.m., Jose
and Maria Villegas and their adult children and young grandchildren were awakened by someone
breaking down the door to their Lynwood home. ER 243, 248, 250. Members of the Latino family
initially thought the intruders, who did not identify themselves, were gang members (ER 250) or
robbers. ER 252. It later became apparent, however, that they were Lynwood deputies. At
gunpoint, the deputies ordered the adults to go outside in their underwear or nightgowns, where
they were forced to stay in the cold night air for a long period of time while deputies searched the
house and photographed the two Villegas brothers holding name cards. ER 243-44, 246, 250.
Cynthia Villegas pleaded with the deputies to be careful with her 68-year-old father, Jose,
because he had diabetes and a heart condition and could not see much without his glasses. ER 243,
253. His wife, Maria, also told them that her husband was sick. ER 250. Nevertheless, the
deputies repeatedly pushed Mr. Villegas and, after hearing his wife’s and daughter's pleas, said they
did not care and again pushed him, almost knocking him to the ground. ER 243, 253. Additionally,
for a long period of time during the raid, deputies refused to let 58-year-old Maria Villegas go to
the bathroom. When they finally let her go, she was humiliated as three male deputies watched her
use the toilet. ER 251.
After Brenda Villegas was ordered outside at gunpoint, she told the deputies that her three
young children (ages 6, 5, and 2) were asleep in the house and that they would be frightened. After
a while, she was allowed to go as far as the living room to call for them; but when they appeared,
deputies pointed guns at them, refused their mother's request to get clothes for herself and her
children, and ordered all of them to go outside. Her 6-year-old daughter. Perla, became feverish
17
as they stood out in the cold, and she vomited and was sick the next day. Perla and her 5-year-old
sister, Christina, in particular, have experienced emotional distress since the raid. ER 244.
Despite repeated requests, Ramona Fuamatu Villegas also was not allowed to go back inside
to get her 5-year-old daughter, Elizabeth. After a deputy eventually went into Elizabeth’s room,
the child came out crying and freezing because she was without shoes or a jacket. Since the raid,
Elizabeth has been afraid that deputies will return and that everyone in the family will be arrested,
and she has had nightmares about someone shooting her. ER 252-53.
Although the deputies caused physical damage to the Villegas home and psychological harm
to the members of the family, their search revealed no guns or illegal items, and no one was
arrested. ER 244-45, 246-47, 248, 253.
The record contains evidence of many other abusive searches conducted by Lynwood
deputies, including the following:
• On February 15, 1990, deputies raided the J & A Towing and Repair shop, an
African-American-owned business, terrorizing customers and employees and needlessly destroying
property. ER 142-45, 226-27, 256-57. In September 1990, deputies returned to the shop, searched
it without a warrant, and threatened retaliation if the owners did not drop this lawsuit. ER 145-46.
• In the predawn hours of March 1, 1990, deputies raided several Latino families’
homes at gunpoint. They failed to give reasonable notice and an opportunity to open the door;
they needlessly destroyed property; they mistreated small children and elderly persons; and they
forced people to stay outdoors for long periods in night clothes or underwear. ER 88-90, 96-97,
168-69, 181-82, 192-93, 237-42.
• In another early morning raid, deputies broke down the gate in front of Thomas
Monreal’s house. They forced him to stand outside in his underwear while they searched the house,
causing damage and disarray. One of the deputies punched him in the eye while he was
handcuffed. ER 184-85.
• Deputies conducted two warrantless searches of the Bugarin home, during which
18
they intimidated the people there and unnecessarily destroyed property. ER 82-87.
• In an early morning raid of the Mendez family’s home, deputies failed to give
reasonable notice and an opportunity to open the door, needlessly destroyed property, and
mistreated small children and a pregnant woman. ER 170-77.
• Deputies raided an African-American family's home at gunpoint, pulling down the
support pole on the front porch and crashing through the front door without announcing who they
were. When James Brown stated to one of the deputies that they were violating his constitutional
rights, the deputy told Brown to "shut up" and put his gun closer to Brown's face. ER 80.
• Deputies raided another African-American family's home three times in nine
months. They held family members at gunpoint (including Maiy Charles’ 15-month-old
granddaughter), ransacked the children’s rooms, and needlessly destroyed property. ER 107-110.
3. Racially Motivated Harassment
a. Racial Slurs, Intimidation and Ridicule
The district court found that "[t]he actions of many deputies working in the Lynwood sub
station are motivated by racial hostility ...." ER 1958. This finding is amply supported by the
record, which shows that racial slurs — "nigger," "goddam Mexican," "stupid-ass fucking nigger,"
"mother-fucking Mexican," and the like — frequently accompany beatings and other abuse
administered by Lynwood deputies. The record contains the following examples, among others, of
such racial slurs:
• When Jeremiah Randle, a 28-year-old black school teacher, asked why he had
been stopped, a deputy replied, "Look, nigger, I don't have to tell you shit." Deputies then told
him, "Your black ass is going to jail," and "Yeah, nigger is going to jail, and going to jail tonight."
While the deputies then kicked him repeatedly as he screamed out in pain, the deputies called him
"nigger," "pussy," "bitch," and "cry-baby." After the beating was over, another deputy told him.
"We're not racist; we think everyone should own a nigger." ER 200-201.
• When Larry Clarke asked why a deputy had pulled Clarke up off the ground by
19
the handcuffs and had then put his gun in Clarke’s ear and pulled the trigger on an empty chamber,
the deputy told him, "Shut the fuck up,” and then called him a "stupid black guy" while beating him
on the head and back with a sap. Clarke lost consciousness twice during the beating. ER 115-16.
• While beating Demetrio Carrillo, deputies called him a "mother-fucker" and a
"God-damn Mexican." ER 100.
• Deputies called Gregory Mason a "stupid-ass nigger" while beating and kicking him
at the Lynwood station. Mason was then taken to St. Francis Hospital, where he asked that medical
treatment be delayed until someone had called his wife and asked her to come to the hospital.
When a deputy learned that Mason’s wife was on the way. Mason was handcuffed and taken back
to the station, where a lieutenant called him a "stupid-ass fucking nigger," accused him of "trying
to be smart," and told him that they were going to "lose [him] in the system." ER 166-67.
• Deputies said, "nigger, you ain't got no rights" and subjected Darren Thomas to
other racial slurs while beating and kicking him at the Lynwood station. ER 230.
• Deputies called Alfredo Sanchez a "mother-fucking Mexican" and yelled other
offensive remarks about "Mexicans" while beating and kicking the Sanchez brothers into
unconsciousness. ER 213, Supp. ER 217.
• Deputies called Calvin Charles a "nigger" and kicked him in the testicles, and then
told him, "We are going to take you home to your Mammy." ER 105.
• Aiming at Kelvin Davis, a deputy yelled to his partner, "Move so I can shoot his
black ass," and then shot Davis in the buttocks. As Davis lay wounded on the ground, the other
deputy said, "You shouldn't have been running anyway, nigger," and then kicked him in his side and
in his face. Davis lost one kidney and part of his intestines from the gunshot wound, and he had
to wear a colostomy bag for five months. ER 125-26.
The district court also found that "many of the deputies and sergeants in Lynwood were out
to intimidate and ridicule Blacks and Hispanics." ER 1959. In addition to the evidence outlined
above, this finding is supported by evidence that Lynwood deputies regularly forced black residents
20
to posture themselves as gorillas to pass the "A.P.E. Test"; posted on the Lynwood substation
employee bulletin board and maintained for an extended period of time a map of Lynwood shaped
as Africa; and distributed to black residents advertisements for "Nigger Pills" and "Coon-ard Line
Boat Tickets to Africa." ER 1400-1402.
b. The Vikings
The district court found that "[m]any of the incidents which brought about this motion
involved a group of Lynwood area deputies who are members of a neo-nazi. white supremacist gang
— the Vikings - which exists with the knowledge of departmental policy makers." ER 1958.
Plaintiffs filed with the Court certified copies of the declarations of 11 LASD deputies concerning
the existence of a white-supremacist gang of Lynwood deputies known as the "Vikings." Supp. ER
59-199. These declarations show that, for more than a year, Sheriffs Department personnel within
the Lynwood station were aware of allegations of racially motivated, anti-black, white-supremacist,
hate crime activities by Lynwood deputies affiliated with the Vikings (Supp. ER 164-99
[Declarations of Danielle Cormier, Dan Figueroa, Lance Fralick, Doug Gillies, Kevin Kiff, Jerold
Reeves, and Jay Ritter, H 3]); that knowledge of these allegations was widespread throughout the
Sheriffs Department (id.., 11 6); and that on numerous occasions starting as early as April 1990, the
commander of the Lynwood station stated that deputies affiliated with the Vikings were linked to
criminal activities and were associated with "raping and pillaging" minority members of the
community (id., U 4; Supp. ER 153 [Declaration of Clifford Yates, U 6]).
Also before the Court was a lengthy investigative report on the Vikings, which found that
"[a] sizeable group of deputies in the Lynwood Sheriffs Station has taken on characteristics of a
street gang, and their harassing activities within the department have led their commander [Captain
Cueva] to label them a ’malignancy’ that must be dealt with quickly." Supp. ER 48. However, the
record indicates that the only action ever taken with regard to the Vikings did not occur until
several months after this lawsuit was filed, and it consisted merely of transferring four deputies from
21
Lynwood to other locations.30 Supp. ER 59-199.
c. Policy of Targeting Gangs for "Special Attention"
The Court’s findings with regard to racially motivated harassment and intimidation are
further buttressed by evidence that an official policy of targeting certain gangs in the Lynwood area
for "special attention" (ER 129) has resulted in racially motivated harassment. In accordance with
provisions of the LASD Manual (CR 130),31 the Commander of the Lynwood station has told his
deputies to target members of some 30 gangs and to arrest them for any kind of conduct that could
be construed as a violation of any statute or municipal ordinance. ER 129. Operation Safe Streets
("OSS") deputies are assigned to the Lynwood station to specialize in targeting suspected gang
members and in suppressing gangs. ER 762.
The record contains substantial evidence demonstrating the racial harassment associated
with this gang-targeting policy:
• When Herman Walker, a 23-year-old African-American, tried to calm a group of
younger men who were upset because someone they knew had been shot, Lynwood deputies picked
him up and held him in the back of a patrol car for approximately three hours. Instead of thanking
him for his assistance, Lynwood deputies asked him what gang he belonged to, and told him that
30Although plaintiffs have not yet had an opportunity to conduct thorough discovery, the record
at present shows that at least deputies Jason Mann, Michael Schneider, and Brian Steinwand are
members of the Vikings. Deputies Mann and Schneider were transferred from the Lynwood station
in December 1990 because the station's commander, Captain Cueva, suspected them of being
Vikings. Supp. ER 56-199. Deputy Steinwand’s mark of membership is in the form of a Viking
tatoo on his outer left ankle, with his moniker "Steiny" above it and the initials "LVS" below it. ER
1410. Deputy Mann inflicted savage beatings on Lloyd Polk (ER 151) and Alan Brahier (ER 73-
75), and he reportedly shot and killed Arturo Jimenez, who was unarmed. See ER 902. Deputy
Schneider was involved in the incident in which Ron Dalton was beaten. See ER 706. Deputy
Steinwand was involved in the Leopoldo Ortega incident (ER 546) and in the framing of Tracy
Batts (ER 1410).
31LASD Manual § 2-06\050.10 describes the "Safe Streets Bureau," which is comprised of two
Details: the "Gang Enforcement Team" and the "Operation Safe Streets Detail (OSS)." CR 130.
The responsibilities of the OSS Detail include "[targeting particularly violent or active street gangs
within assigned OSS team areas," "[participating in street gang suppression efforts within assigned
OSS team areas," and "[investigating all cases, otherwise routinely assigned to Station Detectives
that involve ’target’ street gang members." Id.
22
they knew he must be a gang member because he was black. ER 254-55.
• To investigate a robbery of four bicycles during which a victim was wounded by
shots from a handgun, deputies used a form search warrant to search eight different homes of
suspected Latino gang members for a wide variety of items, including all "evidence of gang
membership to include items of personal property with gang graffiti on them, doodles, writings,
plaques, phone books that tend to show membership in the ‘Young Crowd’ gang, also any clothing
to include, but not limited to, jackets, hats, sweatshirts, and common everyday objects [on] which
gang graffiti has been placed." ER 420-22. The "Statement of Probable Cause" in support of the
warrant application includes several pages of form allegations setting forth sweeping statements
about the behavior of supposed gang members in general (ER 424-30), with only limited reference
to the specific facts of the incident purportedly under investigation. See ER 426. Deputies used
a similar form search warrant in another investigation to search seven different homes of suspected
Latino gang members. ER 638-46.
• In the court below, deputies assigned to the Gang Enforcement Team at the
Lynwood station claimed that they initially approached Darren Thomas because he and others were
drinking in front of his house and were therefore "prime targets for gang drive-by shootings." ER
688-89, 693, 695. According to each of the deputies’ declarations, "it was dark enough so we could
not even tell what nationality or the specific characteristics of any of the individuals who were
standing around [sic]." ER 688, 693, 695. The deputies acknowledged that, "simply to get them off
the street and avoid their being our next victims, a decision was made to cite them for drinking in
public. This involves taking the individuals to the station where they are cited and released within
a few hours." ER 689, 694, 696. Deputies proceeded to subject Thomas to racial slurs and to
administer a severe beating in which they knocked out his two front teeth. ER 228-34.
• The "OSS" or "gang" trailer at the Lynwood station is a common site for beatings.
Darren Thomas (ER 229-30), Calvin Charles (ER 105), Leopoldo Ortega (ER 196-97), Thomas
Monreal (ER 186), and Cesar Guerrero (ER 131) were all beaten there.
23
Additionally, the record shows that deputies have subjected individuals suspected of gang
connections to recurring instances of abuse, including the following:
«
• Lloyd Polk, claimed by deputies to be a member of a gang (ER 752), alleged three
separate incidents of deputy misconduct on February 11, April 15, and April 22, 1990, including a
severe beating in which both his arms were broken. ER 25-26, 151, 154-57. Deputies later
subjected him to further harassment after a court dismissed criminal charges that he had assaulted
a police officer. ER 151. Lloyd Polk was subsequently murdered. ER 754-55. When Polk’s friends
- identified by deputies as "gang members" (ER 753) — held a car wash to raise money for his
funeral, Lynwood deputies arrived in at least 11 cars, blocked off the street, and "ran makes" and
wrote tickets on all the low-rider cars parked at or near the car wash site. ER 60-62. Pursuant to
a "policy and practice of the O.S.S. unit to monitor all funerals involving gang members ..." (ER
753). deputies appeared at Polk’s funeral, videotaping and intimidating the mourners. ER 152-53.
• Acting pursuant to a warrant alleging the presence of gang members (ER 420-30),
in March 1990 deputies staged an early-morning raid on the home of Teresa Rodriguez, terrorizing
and abusing family members and destroying property. ER 181-82, 192-93. In October 1990, after
Rodriguez and others had filed this lawsuit, deputies arrested her and said, "You’re one of the
bitches that wants to get rich with the Lynwood lawsuit." ER 206. Since that incident, deputies
have often shined their spotlights'into the windows of her home at night. Id.
• Believing Calvin Charles to be a gang member (ER 660), deputies staged abusive
raids on his mother’s home three times in nine months. ER 107-110. Deputies have beaten Calvin
Charles on more than one occasion. ER 104.
• Deputies raided the J & A Towing and Repair shop - claimed by defendants to
be owned by gang members (ER 782) -- in February 1990, terrorizing and abusing employees and
customers. ER 142-45. Deputies searched the shop again in September 1990 and threatened its
owners with further retaliation for participating in this litigation. ER 145-46. After the assistant
manager called the Lynwood station and complained to the watch commander, deputies returned
24
yet again and one deputy yelled, "Do you want a fucking war?!" ER 146.
• Deputies beat Ron Dalton, identified by defendants as a member of a gang (ER
802), on at least two occasions, in April 1990 and again in May 1990. ER 121-23.
• In August or September 1990, deputies raided the home of Thomas Monreal,
claimed by defendants to be a gang member (ER 803), forcing him to stand outside in his
underwear while they searched his house. They caused damage and disarray, and a deputy punched
Monreal in the eye while he was handcuffed. No charges were ever filed against him. ER 184-85.
In October 1990, deputies arrested Monreal and Cesar Guerrero for attempted murder. They beat
Monreal in the back of a patrol car, and then took him to the OSS trailer at the Lynwood station,
where he observed other deputies beating and kicking Guerrero, who was handcuffed. A deputy,
noticing that Monreal was watching Guerrero being beaten, slapped Monreal and shut the door.
The next morning, both Monreal and Guerrero were released without any charges being filed
against them. ER 131-32, 185-87.
• Apparently believing that Richard Cruz was a gang member (ER 119, 467), a
deputy arrested, verbally abused, and clubbed him. ER 119. The deputy then took Cruz to the
Lynwood station, where he was booked and released with a citation. Id. Later that day, the same
deputy spotted Cruz riding a bicycle he had borrowed from a friend. The deputy forced him off
the bicycle, called him an "asshole," punched him in the eye, and then let him go. ER 120. When
Cruz returned to his mother’s house, he found the same deputy parked outside, shining his spotlight
in the windows of the house. Id.
• Deputies, claiming that gang members were drinking beer in front of Enrique and
Jose Bugarin’s apartment complex (ER 716), conducted two warrantless, abusive searches of their
apartment in the space of one week. ER 82-87. ’
4. Retaliation
The district court found that, "[sjince the date this case was filed, there have been many
confrontations between deputy sheriffs and plaintiffs, in an apparent attempt by the deputies to
25
convince plaintiffs to dismiss this action." ER 1958. For instance, when they searched Jeffrey
Holliman’s auto repair shop, deputies asked him, "Who do you think you are to file a lawsuit
%
against the sheriffs?" ER 145. The deputies threatened to return to plant drugs and cause other
problems, and told Holliman that it would be in his "best interest" to drop the suit. ER 145-146.
The next day, after Holliman had filed a complaint about this conduct with the Lynwood watch
commander, the deputies returned and one of them said, "Do you want a fucking war?!" ER 146.
Other evidence of retaliatory conduct by deputies includes the following: ER 206 (deputy
called Teresa Rodriguez "one of the bitches that wants to get rich with the Lynwood lawsuit"; often
since that incident, deputies have harassed her by shining spotlights into the windows of her home);
ER 134 (deputy told Antonio Guzman to "tell your two white-boy lawyers [referring to plaintiffs’
lead counsel George V. Denny III and plaintiffs’ investigator David Lynn] that they can kiss my
behind," and said that plaintiffs’ lawyers were interested only in getting money from the
government); ER 198 (deputies beat Leopoldo Ortega after questioning him about this lawsuit);
ER 60-62 (deputies often harassed plaintiff Lloyd Polk because he was a named plaintiff in this
lawsuit; deputy referred to plaintiffs’ lead counsel and investigator in disparaging terms; deputies
harassed persons conducting car wash to raise money for funeral expenses for plaintiff Polk); ER
152-53 (deputies harassed mourners at the funeral of plaintiff Polk).
Retaliation against the plaintiffs for filing this lawsuit is part of a larger pattern of
retaliation and intimidation directed at persons who assert their rights or otherwise question
deputies’ authority. As the district court found, many Lynwood deputies "regularly disregard the
civil rights of individuals they are sworn to protect. ..." ER 1958. For example, when deputies
arrested Darren Thomas and three friends and family members and took them to the OSS trailer
at the Lynwood station, Thomas and the others asked what they had done wrong and why they had
been arrested. Deputies told them that they had "fucked up" and that the deputies would "kick
[their] ass" if they didn't shut up and quit asking so many questions. ER 229-30. When Thomas
asked a deputy what he was being charged with and why he had not been advised of his rights, the
26
deputy became angry, put handcuffs back on Thomas, and said, "I’ve had enough of this shit."
During the severe beating that ensued, one of the deputies said, "Yeah, nigger, you ain’t got no
rights. We are going to make sure you don’t ask any more questions." ER 230.
Other examples of such retaliation and intimidation include the following:
• When Jeremiah Randle asked deputies what their "p.c." was for stopping him, a
deputy replied, "I don’t have to tell you shit." Randle then stated that he had not broken any laws
and asked if it was department policy to stop and detain people without telling them why. The
deputy responded, "Shut the fuck up! I don't have to tell you anything." ER 200. Deputies then
proceeded to kick him repeatedly while calling him "nigger" and spouting other verbal abuse. ER
200-201.
• When James Brown complained that deputies were violating his constitutional
rights by illegally searching his home, a deputy responded by saying, "Shut up," and put his gun
closer to Brown’s face. ER 80.
• When Enrique Bugarin told a deputy he could not come into the Bugarin home
without a search warrant, the deputy grabbed his gun and said, "This is my search warrant." ER
85.
• When Kelvin Davis lay wounded on the ground and asked why he had been shot,
a deputy replied, "You shouldn’t have been running anyway, nigger." The deputy then-kicked him.
ER 126.
• As deputies stormed Jorge Calderon’s home, he asked, "What did I do?" In reply,
a deputy screamed at him, "Shut up asshole," and ordered him to sit down. ER 88. When
Calderon threatened to sue, a deputy told him, "Shut up or I’m going to kick your fucking ass." ER
89.
• When a deputy said to Henry Castro, "What are you doing here, stupid
motherfucker?," Castro responded, "You don’t have the right to talk to people like that." The
deputy then told him that he was "going to jail right now." ER 102.
27
• Asked by a deputy why he was driving through "Cedar," Jose Luis Hernandez
responded, "Excuse me, can’t we pass through Cedar?" The deputy became angry and yelled,
"Don’t you fucking get smart with me!" He then pulled Hernandez out of the back of the patrol
car and threw him against a pole, saying, "If you ever do that again I’ll shoot you." ER 138.
• When Lynwood deputies raided their home, Jesse Melendrez told his sister out
loud to call David Lynn, plaintiffs’ investigator. A deputy then grabbed Melendrez by the collar
and took him to a patrol car, saying, "I don't have to take this crap." ER 171.
5. Cover Charges
The district court found that "[sjeveral plaintiffs were charged with crimes after they were
allegedly brutalized by deputies. These individuals were charged pursuant to an unwritten Sheriffs
Department policy of charging a person injured in the course of a routine stop. Because of the
unreasonable force used in effectuating their arrests, many of these victims had their criminal
charges dropped at arraignment."32 ER 1958.
As an LASD deputy testified at a recent criminal trial, he learned in his training that, if
deputies hurt someone, they should arrest and charge the person with a crime in order to protect
themselves from accusations of police brutality. ER 65-71. The record shows that this policy was
followed in many of the cases before the Court, in which criminal charges were made and
subsequently dropped or dismissed. See ER 98-101 (Demerrio Carrillo beaten and charged with
obstructing an officer; acquitted); ER 102-103 (Henry Castro beaten and charged with drinking in
public, being intoxicated, and disturbing the peace; charges dropped); ER 117 and Appellees’
Request for Judicial Notice on Appeal, p. 16 (Elzie Lee Coleman shot at 23 times and charged with
being an ex-felon with a gun and brandishing a weapon; acquitted); ER 151, 1483, 1506-1515
(Municipal Court dismissed charges against Lloyd Polk, finding that deputies used "excessive force"
and that "the conduct on the part of these officers was outrageous"); ER 165-67 (Gregory Mason
32The record shows that at least 16 plaintiffs or declarants either were arrested but not charged
or had charges dismissed by the District Attorney or a court. See nn. 21-22, supra.
28
beaten at Lynwood station; subsequently charged with drunk driving and assault on a police officer
after attorneys filed complaint about the beating); ER 194-95 (Jose Louie Ortega beaten;
subsequently arrested for obstructing an officer after friend called station to request medical
attention); ER 228-31 (Darren Thomas beaten and charged with resisting, delaying, and obstructing
an officer; charges dismissed after jury unable to reach verdict).
6. Discouragement of Complaints
The district court found that "[witnesses who attempted to file misconduct reports regarding
some of the brutality incidents were discouraged from doing so by deputies and their superiors."
ER 1958. The record shows that a number of plaintiffs and declarants were subjected to conduct
designed to discourage them from filing complaints. A deputy told Jeffrey Holliman, for example,
that Holliman’s wife had been calling the Lynwood watch commander and "telling him a bunch of
bullshit" .(Le., complaining about the raids on Holliman’s auto repair shop); the deputy warned
Holliman to "watch out." ER 145. After Holliman himself filed a complaint with the Lynwood
watch commander, another deputy confronted him again. ER 146.
This inference of supervisory involvement in the discouragement of complaints is further
supported by evidence that Lynwood sergeants told would-be complainants on the telephone that
they probably deserved to be beaten and that the sergeants themselves would also "kick ass" if the
complainants came to the station. ER 1401. The sergeants would then stop the tape recorder on
which those calls were recorded and rotate the tape backwards in order to insure that recordings
of those calls would not be preserved. Id.
Other evidence supporting the district court's finding on discouragement of complaints
includes the following:
• On a Wednesday afternoon in December of 1990, Maria Hernandez took her son,
Jose, to the Lynwood station to file a complaint about a beating he had received at the hands of
deputies. After waiting a considerable length of time, they were first told that the deputy in charge
had left for the day and that they should come back at 6:00 a.m. the next morning to file a
29
complaint. They were later told that no one would be available to take their complaint until 5:00
a.m. the following Saturday morning. Only when Ms. Hernandez threatened to hire an attorney
was she given a complaint form. ER 138-139.
• When Herman Walker went to the Lynwood station and tried to register a
complaint of racial harassment, a deputy actively discouraged him and belittled him for attempting
to complain. ER 255.
• Gregory Mason was beaten, then jailed and released the following day without any
charges having been filed against him. After his attorneys filed a complaint about the beating,
Mason was charged with drunk driving and assault on a police officer. ER 167.
• When Steven Thomas went to the Lynwood station to file a complaint, the deputy
behind the counter said, "Since the Rodney King incident, everyone wants to get into the act." ER
236. A sergeant initially refused to let Thomas file a complaint, but eventually gave him a
complaint form. Id.
• Captain Cueva, the Commander of the Lynwood station, expressly stated that he
was not inclined to investigate any complaint of deputy misconduct filed by an alleged gang member
unless the complainant was willing to take a polygraph examination. ER 130.
7. Department-Wide Assignment Policies
The district court found that "[m]ost of the deputies who work in the Lynwood area are
permanently assigned to the Lynwood sub-station; however, a significant number of officers, such
as reserve officers and members of department-wide bureaus, are not permanently assigned to the
Lynwood sub-station, but occasionally work in the Lynwood area." ER 1958. This finding is
supported by defendants’ admission below that an "artificial and meaningless limitation to deputies
assigned to the Lynwood station does not accord with the operational practices or training of the
*
Sheriffs Department (in which personnel are freely assigned and transferred) ...." Defendants'
Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Preliminary
Injunction, CR 76, p. 26. Counsel for the county defendants advised the district court at the
30
hearing on September 23. 1991. that an injunction limited to the Lynwood station would "interject
confusion into law enforcement operations of a local law enforcement agency" (ER 1934), and
counsel for the individual deputy defendants told the .Court that, "[fjrom a practical point of view,
... it would be impossible for the court to issue such an injunction ...." ER 1936-37.
8. Tacit Authorization of Unconstitutional Conduct
The district court found "a direct link between departmental policy makers, who tacitly
authorize deputies' unconstitutional behavior, and the injuries suffered by the plaintiffs." ER 1959.
The record contains substantial evidence of the open and notorious nature of deputies’
unconstitutional conduct, including several widely disseminated media reports of excessive force and
improper use of deadly force against minorities, as well as reports of white-supremacist activities
by the Vikings that have long been known to policymaking officials. ER 899-903; Supp. ER 4-199.
Despite these reports and the evidence of massive and repeated brutality presented in this case,33
the Commander of the Lynwood station admitted that, between June 1989 and April 1990, he did
not discipline a single deputy for unnecessary or unreasonable use of force. ER 129.34
Policymakers either have tacitly authorized the deputies' failure to make the use-of-force reports
required by LASD’s formal policies,35 or they have received those reports and, with full knowledge
33The record shows, for example, that in March 1987 Deputy Paul Archambault fired all the
bullets in his gun, reloaded, and then continued to fire at Pascual Solis as he lay on the ground,
killing him and then planting a weapon. Los Angeles County settled the resulting lawsuit for
$520,000. Supp. ER 29-30. In May 1990, Deputy Archambault fired all the bullets in his gun,
reloaded, and then continued to fire at plaintiff Elzie Coleman as he lay on the ground, severely
wounding him and then planting a weapon. Id; ER 117. Coleman was subsequently acquitted of
all charges relating to the incident. Appellees' Request for Judicial Notice on Appeal, p. 16. Three
years after killing Solis and five months after shooting Coleman, Deputy Archambault was still on
patrol duty at the Lynwood station, where he helps train rookie officers. Supp. ER 30.
34Not until December 1990, three months after this lawsuit was filed, were any deputies
transferred out of the Lynwood station because of their activities in the Vikings. Supp. ER 56-199.
The transferred deputies state that they were never investigated for the use of excessive force.
Supp. ER 128, 142, 147, 156.
35LASD Manual § 3-01/030.25 requires deputies to make reports to supervisors in all cases
involving the use of physical force (ER 1785-86); § 5-09/430.20 requires an immediate departmental
investigation at the scene of an officer-involved shooting (CR 130); and § 5-07/075.00 requires
deputies to photograph premises before and after a search. CR 130.
31
of their contents, have tacitly authorized and ratified the deputies’ violent and unconstitutional
behavior.36
The photographs filed with plaintiffs' declarations also demonstrate that defendants have,
at the very least, tacitly authorized abusive conduct and physical brutality by deputies. In view of
the reporting requirements imposed by LASD policies, supervisory and policymaking officials
cannot reasonably claim that they were unaware of the extent of the physical injuries and
destruction of property documented in those photographs. See, e.g., ER 76-79, 1499-1502 (injuries
to Alan Brahier); ER 118 (damage to Charles home); ER 154-57 (injuries to Lloyd Polk); ER 178
(damage to Melendrez home); ER 232-34 (injuries to Darren Thomas); ER 1485-90 (injuries to
Ron Dalton); ER 1491 (injuries to Cesar Guerrero); ER 1492-94 (injuries to Jose Hernandez); ER
1495-98 (injuries to Richard Hernandez); ER 1503-05 (injuries to Leopoldo Ortega).
Furthermore, Captain Cueva, the Commander of the Lynwood station, has stated that he
is not inclined to investigate complaints of deputy misconduct made by asserted gang members
unless the complainants first submit to a polygraph examination. ER 130. This policy further
assures deputies that, whenever they can claim that their victims are gang members, they are not
likely to be punished for the use of excessive force or other unconstitutional behavior. This practice
of tolerating and tacitly authorizing misconduct is reinforced by training in which deputies are
taught to arrest and make criminal charges against persons they injure (ER 65, 68), and by a code
of silence under which a deputy will not "snitch another officer off." ER 65, 71.
The district court’s finding of tacit authorization of deputy misconduct is also supported by
the testimony of Sheriff Sherman Block. Los Angeles County paid approximately $8.5 million in
36There is also evidence of direct involvement by Lynwood station supervisors themselves in such
misconduct. See, e.g., ER 166-67 (lieutenant called Gregory Mason a "stupid-ass fucking nigger,"
accused him of "trying to be smart," and told him they were going to "lose [him] in the system");
ER 201-202 (sergeant, informed of use of excessive force against Jeremiah Randle, said that he
could arrest Randle for resisting arrest and take him to the doctor, or that Randle could take
himself to the doctor); ER 1400-01 (sergeants told callers complaining of excessive force that they
probably deserved to be beaten, and then rewound tape to obliterate evidence of conversations);
ER 732 (supervising sergeant was present at scene of Jose Luis Hernandez incident); ER 757
(sergeant directed deputies to attend Lloyd Polk's funeral).
32
settlements and jury awards in cases arising out of deputy misconduct in 1986-1989, and the number
of excessive force lawsuits filed against LASD has steadily mounted in the last five years. Supp. ER
31-45. Sheriff Block, however, has testified that his department does not keep records of lawsuits
filed against deputies, nor does it keep records of judgments entered in such suits against deputies
or against the department. ER 158-59. The Sheriff explained that, "without question," he had more
faith in the department’s internal investigative procedures than he did in independent judicial
determinations in civil lawsuits. ER 159. Sheriff Block’s satisfaction with his department’s internal
procedures is understandable; even on the extraordinary record of unconstitutional behavior and
abuse presented in this case, there is no evidence that even one of the deputies identified by
plaintiffs has been disciplined in any way.
33
ARGUMENT
I. THE DISTRICT COURT’S ORDER GRANTING A PRELIMINARY INJUNCTION IS
SUBJECT TO REVIEW ONLY FOR ABUSE OF DISCRETION.
Presented with credible evidence of a pattern of widespread constitutional violations by
Lynwood deputies, the district court issued a preliminary injunction designed to provide the
plaintiffs with a measure of temporary protection while minimizing the degree of federal intrusion
into local law enforcement operations and also safeguarding the rights of individual deputies. See
ER 1948-55. Like any preliminary injunction, the court’s order is provisional, and it will remain in
effect only until the factual record can be developed more fully at trial.37 ER 1889.
At this stage of the case, until a permanent injunction is granted or denied, this Court is
"foreclosed from fully reviewing the important questions presented. Review of an order granting
or denying a preliminary injunction is much more limited than review of an order granting or
denying a permanent injunction." Zepeda v. INS, 753 F.2d 719, 723-24 (9th Cir. 1983). See also Los
Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir.
1980). Such an order may be reversed only if the district judge exceeds the boundaries of his broad
discretion in one of three ways: "(1) he may apply incorrect substantive law or an incorrect
preliminary injunction standard; (2) he may rest his decision to grant or deny a preliminary
injunction on a clearly erroneous finding of fact that is material to the decision to grant or deny the
injunction; or (3) he may apply an acceptable preliminary injunction standard in a manner that
results in an abuse of discretion." Zepeda, 753 F.2d at 724. In issuing the preliminary injunction
in the present case, the district judge did not abuse his discretion in any of these ways.
(1) The district court’s order would be reversible for legal error "if the court did not employ
the appropriate legal standards which govern the issuance of a preliminary injunction, ... or if, in
37The findings and conclusions before this Court on appeal are. of course, "not to be considered
as foreclosing any findings and conclusions to the contrary based upon evidence which may be
received at the trial on the merits." Ross-Whitney Corp. v. Smith, Kline & French Laboratories, 207
F.2d 190, 199 (9th Cir. 1953).
34
applying the appropriate standards, the court misapprehended the law with respect to the
underlying issues in litigation Zepeda, 753 F.2d at 724. As defendants appear to concede (see
Cty. Br., pp. 19-20), the district court applied the appropriate preliminary injunction standards,
determining not only that plaintiffs had established their probable success on the merits and the
possibility of irreparable harm (ER 1960), but also that plaintiffs had raised serious questions on
the merits and that the balance of hardships clearly weighed in their favor. ER 1949. See, e.g.,
Vision Sports, Inc. v. Melville Corp., 888 F.2d 609. 612 (9th Cir. 1989); Republic o f the Philippines v.
Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988), cert, denied. 490 U.S. 1035 (1989); State o f Alaska v.
Native Village of Venetie, 856 F.2d 1384, 1389 (9th Cir. 1988).
It is equally clear that the district court did not "misapprehend[ ] the law with respect to the
underlying issues in litigation." Zepeda, 753 F.2d at 725. Defendants cannot reasonably be heard
to argue that a federal court may never, in any circumstances, issue any injunctive relief against a
local law enforcement agency. As this Court has held, "[fjederal district courts have equitable
power to enjoin law enforcement agencies when such agencies have engaged in a persistent pattern
of misconduct." Zepeda, 753 F.2d at 725 (citing Allee v. Medrano, 416 U.S. 802, 815-16 (1974); Rizzo
v. Goode, 423 U.S. 362, 373-76 (1976); City of Los Angeles v. Lyons, 461 U.S. 95, 105-07 (1983)).
Defendants’ contentions on this appeal thus boil down to questions of degree and fine
judgment in the application of precedents such as Rizzo and Lyons to the particular record in the
case at bar. Especially at the preliminary injunction stage, those are questions peculiarly within the
district court’s discretion. In any event, the record here is plain that this is precisely the kind of
case in which a federal court can and should intervene to restrain a pervasive pattern of
constitutional violations. See Section II infra.
(2) The district court did not "rest . . . [its] decision to grant or deny a preliminary injunction
on a clearly erroneous finding of fact ...." Zepeda, 753 F.2d at 724. The district court’s findings in
the present case are supported by ample evidence in the record, and they are not "clearly
erroneous" under Rule 52(a), Fed. R. Civ. P. See Section III infra.
(3) The only other basis on which defendants can argue for reversal is that the district court,
while applying the correct preliminary injunction standard and the correct rules of substantive law
to properly determined facts, abused its discretion because its decision was not "based on
consideration of the relevant factors" or because it committed "a clear error of judgment
Zepeda, 753 F.2d at 725. In considering such arguments, which go to the heart of a district court’s
discretion, this Court "will not reverse the district court’s order simply because [it] would have
reached a different result. ... 'The [reviewing] court is not empowered to substitute its judgment for
that of the [district court].’" Zepeda, 753 F.2d at 725 (citations omitted) (insertions in original).
Here, the only grounds advanced by defendants to impugn the district court’s judgment are claims
(a) that the court made certain procedural mistakes in issuing the injunction, and (b) that the form
of the injunction is improper in some respects. These contentions provide no basis for reversal.
See Section IV infra.
II. NO LEGAL RULE INVOKED BY DEFENDANTS REMOTELY REQUIRES REVERSAL
ON THIS RECORD.
Defendants treat Rizzo v. Goode, 423 U.S. 362 (1976), and City o f Los Angeles v. Lyons, 461
U.S. 95 (1983), as though they overthrew the long-accepted power of the federal courts to enjoin
local police officials, under appropriate circumstances, from committing flagrant, widespread,
systematic violations of citizens’ constitutional rights. But neither Rizzo nor Lyons undermines this
power, which was firmly established in such landmark cases as Hague v. CIO, 307 U.S. 496 (1938),
and Allee v. Medrano, 416 U.S. 802 (1974). Rizzo recognizes, as did Hague and Allee, that "[isolated
incidents of police misconduct . . . would not . . . be cause for the exercise of a federal court’s
injunctive powers," Allee, 416 U.S. at 815; and Lyons requires that a constitutionally cognizable case
or controversy support the federal court's jurisdiction. See also Zepeda. 753 F.2d at 725. The
conditions for injunctive relief spelled out in both cases are abundantly satisfied here.
A. RIZZO DOES NOT BAR THE PRELIMINARY INJUNCTION ISSUED
BELOW.
In Rizzo, the Supreme Court found the record inadequate to support a permanent injunction
36
ordering Philadelphia’s Police Commissioner, Mayor, and other city officials to design and
implement "’a comprehensive program for improving the handling of citizen complaints alleging
police misconduct,’" id. at 365. Although that record showed a total of 19 incidents "occurring in
the city of Philadelphia over a year’s time in which numbers of police officers violated citizens’
constitutional rights," id. at 368 (summarizing the figures at 367-68), the Court found no "common
thread running through them," id. at 375 - nothing equivalent to the "‘pervasive pattern of
intimidation’ flowing from a deliberate plan by the named defendants to crush the nascent labor
organizations [that had won injunctive relief in Hague and/l//ee]," ibid, (emphasis in original). To
the contrary, only "[iIndividual police officers not named as parties to the action were found to have
violated the constitutional rights of particular individuals," id. at 371 (emphasis in original); and
"there was no showing that the behavior of the Philadelphia police was different in kind or degree
from that which exists everywhere; indeed, the district court found 'that the problems disclosed by
the record . . . are fairly typical of [those] afflicting police departments in major urban areas,’" id.
at 375 (insertions in original).
In short, the Philadelphia police were not shown to have targeted any racially or
geographically distinct subpart of the community for intimidation: no named defendant had violated
anybody’s constitutional rights; and the types and amounts of unconstitutional police conduct
committed by officers unnamed as defendants were no greater than-cauki.be expected for any urban
metropolis. The Rizzo plaintiffs’ "claim to 'real and immediate’ injury . . . [rested solely] on what
one of a small, unnamed minority of policemen might do to them in the future because of that
unknown policeman's perception of departmental disciplinary procedures." Id. at 372; see also id.
at 376 (referring to "the actions of a small percentage of the police force"). Thus, Chief Judge
Wallace in Zepeda was exactly right to describe Rizzo as holding simply that there is "no duty on
[a] . . . police department to eliminate future misconduct by a small part of [the] police force."
Zepeda, 753 F.2d at 725.
The facts of the present case contrast sharply with those in Rizzo. Here the plaintiffs have
37
alleged and documented multiple incidents of intimidation aimed at a specific population.
Residents of Lynwood who are African-Americans and Latinos — and particularly those who are
thought to be connected with "gangs" - are the focus of repeated instances of police brutality. See
pages 7-33 supra. Plaintiffs’ original complaint alleged 42 episodes of this kind within a three
month period in an area populated by approximately 62,000 persons and policed by approximately
125 deputies (see note 17 supra). By comparison, in Rizzo there were "some 20 [incidents] in all --
occurring at large in a city of three million inhabitants, with 7.500 policemen." Rizzo. 423 U.S. at
373. Projecting the Lynwood rate of alleged incidents per officer, Philadelphia would have had to
have, not 20, but 80,640 incidents a year to match it.38 39 Moreover, unlike Rizzo, where no named
defendants were connected to unconstitutional incidents, here 21 deputies - more than a sixth of
the total number assigned to the Lynwood station - were named as defendants. See page 8
39supra.
Also, unlike Rizzo, the Lynwood incidents have a "common thread running through them."
Rizzo, 323 U.S. at 375. The police violence is aimed almost exclusively at racial minorities and is
often accompanied by explicit racial taunts: "nigger," "wetback," and so forth. See pages 19-21
supra. Particularly when minorities have the temerity to claim that their rights are being violated
or to question a deputy’s authority, they are likely to be abused. See pages 26-26 supra. The district
court found that "[t]he actions of many deputies working in the Lynwood sub-station are motivated
by racial hostility," ER 1958, and that "many of the deputies and sergeants in Lynwood were out
to intimidate and ridicule Blacks and Hispanics," ER 1959. It is the official policy of the LASD to
38The yearly abusive incident rate in Rizzo was 2.7 per 1000 officers (20 incidents/7500 officers
x 1000). The rate in Lynwood for three months is 336 (42 incidents/125 officers x 1000). The yearly
rate in the present case which would be comparable to the yearly rate in Rizzo is 1344 (336 x 4).
The Philadelphia police force is 60 times the size of the force at the Lynwood station (7500/125).
If the Lynwood rate were applied to a police force the size of Philadelphia's, it would produce
80,640 incidents per year (1344 x 60).
39The declarations filed by the parties identify by name 45 additional deputies who were involved
in the incidents of which plaintiffs complain. See page 8 supra. The record in this case thus
implicates a total of 66 identified deputies, or more than 50 percent of all deputies assigned to the
Lynwood station, in defendants' pattern of unconstitutional behavior.
38
target certain "gangs" for "special attention" by OSS deputies (see page 22 supra); the OSS or "gang"
trailer at the Lynwood station is a frequent scene of vicious beatings (see page 23 supra);
applications for search warrants executed with excessive force contain boilerplate averments about
general "gang" behavior (see page 23 supra); persons suspected of "gang" connections are repeatedly
abused by deputies (see pages 22-25 supra); the commander of the Lynwood station has said that
he would be "disinclined" to investigate "gang" members’ complaints of police misconduct unless
they first take a polygraph test (see page 30 supra) — a policy that the county defendants support
as "not constitutionally unreasonable" (Cty. Br„ p 33); and it is hardly accidental that deputies view
African-American and Latino men as putative "gang" members (see pages 22-23 supra). Where
racial subgroups are singled out as the targets for "a "pervasive pattern of intimidation,’" Rizzo, 423
U.S. at 375, quoting Allee, 416 U.S. at 812, this Court's precedents plainly recognize that injunctive
relief is appropriate and consistent with Rizzo. E.g., Nicacio v. INS. 797 F.2d 700 (9th Cir. 1985);
LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985); Zepeda, 753 F.2d 719.
Additionally, the pattern of unconstitutional intimidation here has been "causally linked" to
LASD policies and to the responsible LASD officials named as defendants. See Rizzo, 423 U.S. at
375. The district court specifically found "a direct link between departmental policy makers, who
tacitly authorize deputies’ unconstitutional behavior, and the injuries suffered by the plaintiffs." ER
1959. It further found that "[m]any of the incidents which brought about . . . [the] motion [for a
preliminary injunction] involved a group of Lynwood area deputies who are members of a neo-nazi,
white supremacist gang - the Vikings -- which exists with the knowledge of departmental policy
makers." ER 1958. Yet, in counterpoint to the LASD’s vigorous repressive campaign against
minority-race "gangs," its response to the Vikings was to do nothing before the present lawsuit was
filed, and almost nothing after. See pages 21-22, 31 supra. Complaints of police brutality are
discouraged by deputies and their superiors (see pages 29-30 supra); and the LASD has neither
changed nor reviewed its training policies or investigation techniques in the face of damage
settlements and jury verdicts in police misconduct cases costing Los Angeles County $8.5 million
39
between 1986 and 1989 (see pages 32-33 supra). This sort of tacit authorization of notorious
misconduct (see pages 31-32 supra) - acts of misconduct "so persistent and widespread that they
were the subject of prolonged public discussion or of a high degree of publicity," Bennett v. City of
Slidell, 728 F.2d 762, 768 (5th Cir. 1984), on rehearing. 735 F.2d 861 (5th Cir. 1984) (en banc) -
would clearly satisfy the requirements for governmental liability under Monell v. Department of
Social Services, 436 U.S. 658 (1978), and City of Canton v. Harris, 489 U.S. 378 (1989). See, e.g.,
Harris v. City o f Pagedale, 821 F.2d 499 (8th Cir. 1987); Samples v. City o f Atlanta, 846 F.2d 1328
(11th Cir. 1988). For similar reasons, it supplies the "causal link" required by Rizzo.
B. LYONS INTERPOSES NO OBSTACLE TO THE INJUNCTION.
Plaintiffs’ complaint below asserts claims for damages and equitable relief that unmistakably
"involve the same operative facts and legal theory."' Smith v. City of Fontana, 818 F.2d 1411, 1423
(9th Cir. 1987). These claims have not been severed. Hence, the case-or-controversy requirement
of City o f Los Angeles v. Lyons is satisfied under the binding rule of Giles v. Ackerman, 746 F.2d 614
(9th Cir. 1984).
In any event, Lyons failed to demonstrate a case or controversy of any equitable entitlement
to injunctive relief because he had only been subjected to a police stranglehold on one occasion,
when he was fortuitously stopped for a traffic violation. He offered no reason to believe that the
unprovoked violence he had suffered would ever be repeated even if he was stopped again, see 461
U.S. at 106; so he "was no more entitled to an injunction than any other citizen of Los Angeles,"
id. at 111.
That is manifestly not this case. Here, a number of plaintiffs have been repeatedly subjected
to police brutality. See pages 24-25 supra. They have sometimes been mistreated again Because the
deputies involved remembered them from prior episodes of mistreatment. See pages 15, 24-25
supra. They have been mistreated in retaliation for their involvement in this lawsuit. See pages 24-
26 supra. They have been mistreated because they are believed to be members of "gangs" that are
singled out for "special attention" by OSS deputies assigned to the Lynwood station. See Section
40
11(A) supra. They have been mistreated because they are African-Americans or Latinos in
Lynwood, called "niggers" and "wetbacks" while being beaten. See ibid. For the defendants to
invoke holding of Lyons under these-circumstances is incomprehensible.
C. THE INJUNCTION DOES NOT TRESPASS ON ANY PRINCIPLE OF
FEDERALISM.
Defendants alternatively extrapolate from Rizzo and from Lyons two versions of a
proposition which those cases do not hold but which is said to follow from the references to
federalism in their opinions. The more moderate version is that when a federal court is asked to
issue an injunction against state law enforcement officials, "principles of comity and federalism must
be weighed heavily in the balance of equities." Cty. Br., p. 27 (emphasis in original). We agree that
this is a proper reading of the opinions. See Rizzo, 423 U.S. at 378-80; Lyons, 461 U.S. at 112.
But so did the district court. It approached the present case with the attitude that it did not
"relish getting involved in a situation where the court is asked to indeed supervise ongoing law
enforcement activities," ER 1949, and it framed its preliminary injunction with an eye to reducing
to the absolute minimum any intrusion of its powers into local law enforcement. As a result, it
preliminarily ordered the defendants simply to follow their own stated but disregarded policies and
guidelines governing the use of force and searches. Ironically, this very self-restraint is now the
basis for the defendants’ specious arguments that the district judge wrongly undertook to enforce
state law instead of the Constitution. See section IV(B)(2) infra. Here we need only note that the
county defendants’ claim that the district court "fail[ed] to accord any, much less the proper
substantial weight to the principles of federalism and comity" (Cty. Br.. p. 30) and the deputy
defendants’ equally categorical claim that "[njowhere in the transcript of the hearings, the
preliminary injunction, or the judge’s post hoc findings . . . is there any indication that he gave any
weight to [considerations of federalism]" (Dep. Br., p. 21) are flatly belied by the very form of the
injunction at which they rail.
The deputy defendants also make a far more extreme "federalism" argument. Citing
Gonzales v. City o f Peoria, 722 F.2d 468 (9th Cir. 1983), they argue that after Rizzo and Lyons,
41
federal injunctions "to combat recurrent unlawful government misconduct . . . have been aimed at
federal administrative agencies, where no principles of federalism or comity are involved" (Dep. Br.,
p. 20; emphasis in original) and that "[n]o case since Rizzo and Lyons has granted the type of
injunctive relief against a local law enforcement agency . . . which was issued below" (Dep. Br., p.
21; emphasis in original). This is wrong on all counts.
First, Gonzales merely reiterates the Lyons rule that "we must avoid interference with state
and local law enforcement unless it is necessary to prevent policies that violate constitutional rights."
722 F.2d at 482 (emphasis added). The Gonzales court engaged in precisely the kind of weighing
process that the district court conducted in the present case: it asked whether the injunctive relief
was "necessary to prevent the violation of constitutional rights" (id. at 481) and concluded that it
was not, because of two considerations shown by the record: "the Peoria police are perfectly willing
to comply with federal law, once it is made clear to them what their responsibilities are" (ibid.), and
"there is no indication that the police intended to use the law as a pretext to harass persons of
Mexican descent" (ibid.). These conclusions (which would be superfluous if the deputies’ reading
of Gonzales were correct) paint a picture that is at the farthest end of the spectrum from the district
court's conclusions here: (1) that a preliminary injunction is necessary to prevent the violation of
constitutional rights (ER 1959-60); (2) that the defendants are not willing to comply with the
Constitution (ER 1958-59); and (3) that their misconduct is "motivated by racial hostility" (ibid.).
Second, post-R/zzo, post-Lyons cases in this Circuit and elsewhere continue to award
injunctive relief against state or local law enforcement officials under appropriate circumstances.
E. g.. McLaughlin v. County of Riverside. 888 F.2d 1276 (9th Cir. 1989), vacated and remanded for
further consideration on the merits with no indication that injunctive relief is inappropriate. 114 L.Ed.2d
49 (1991); NORML v. Mullen, 608 F. Supp. 945 (N.D. Cal. 1985), affd in part, modified in part, 796
F. 2d 276 (9th Cir. 1986); Eng v. Smith. 849 F.2d 80 (2d Cir. 1988); Lynch v. Baxley. 744 F.2d 1452
(11th Cir. 1984).
Third, the deputies’ arguments - based in part upon an exaggerated reading of Lyons and
42
in part upon the Peace Officers’ Bill of Rights (Dep. Br., pp. 31-33) - ignore both the Supremacy
Clause (U.S. Const., Art. VI. cl. 2) and the purposes of the Fourteenth Amendment: "’The
Fourteenth Amendment . . . was avowedly directed against the power of the States,’ . . . and so
permits a federal court to disestablish local government institutions that interfere with its
commands." Missouri v. Jenkins, 109 L.Ed.2d 31, 56 (1990).
D. ANDERSON V CREIGHTON DOES NOT REVERSE THE BALANCE OF
EQUITIES THAT TIPS IN FAVOR OF ISSUANCE OF THE INJUNCTION.
Doctrinally, the Supreme Court's decision in Anderson v. Creighton, 483 U.S. 635 (1987), has
nothing to do with the issues presented in this case. Anderson’s qualified immunity doctrine applies
only to actions for money damages and does not shield officers from suits for injunctive relief. E.g.,
Supreme Court o f Virginia v. Consumers Union, 446 U.S. 719, 736-37 (1980); Pulliam v. Allen, 466
U.S. 522, 537-38 (1984). There is no justification and no need to import Anderson into the law of
preliminary injunctions, for Anderson is aimed at striking a balance between the vindication of
constitutional rights and "the risk that fear of personal monetary liability and harassing litigation
will unduly inhibit officials in the discharge of their duties." 483 U.S. at 638. In the injunctive
context, the striking of that very balance is the function of the familiar, alternatively phrased test
for preliminary relief set forth in, e.g., Tribal Village of Akutan v. Hodel. 859 F.2d 662, 663 (9th Cir.
1988); Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200-
01 (9th Cir. 1980). And here, where both alternative prongs of the test were met - with the district
court finding specifically (1) that "we indeed have serious issues" and the balance of hardships
"fall[s] on the side of the named plaintiffs" (ER 1949)40 and (2) that "[plaintiffs have established
their probable success on the merits" and "have . . . established irreparable harm" (ER 1960) —
resort to an Anderson analysis would be peculiarly superfluous.
But even if it were to be applied as an equitable consideration, the rule of Anderson would
40The district court also found that "the irreparable injury to plaintiffs that would result from
the denial of a preliminary injunction far outweighs any possible injury that such relief could cause
defendants." ER 1960.
43
present no obstacle to the preliminary injunction issued by the district court. Anderson protects
only conduct that "a reasonable officer could have believed ... to be lawful, in light of clearly
established law and the information the . . . officer[] possessed." 483 U.S. at 641. By holding the
defendants only to the terms of "the Department’s own stated policies and guidelines regarding the
use of force and procedures for conducting searches," ER 1899, the district court obviated any
concern that a deputy will be penalized for good-faith conduct. Precisely the opposite of good-faith
conduct was, of course, the basis for the preliminary injunction: the district court expressly found
that "the actions of many deputies working in the Lynwood sub-station are motivated by racial
hostility; these deputies regularly disregard the civil rights of individuals they have sworn to protect."
ER 1958.
III. THE DISTRICT COURT’S FINDINGS OF FACT ARE FULLY SUPPORTED BY THE
RECORD.
A district court's findings of fact may not be reversed unless they are "elearly erroneous"
within the meaning of Rule 52(a), Fed. R. Civ. P. - Le., the findings must be affirmed unless "the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). Under
this standard,
If the district court’s account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would have weighed the
evidence differently. Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous. ...
This is so even when the district court’s findings do not rest on credibility
determinations, but are based instead on physical or documentary evidence or inferences
from other facts.
Anderson v. City of Bessemer City, 470 U.S. 564. 573-74 (1985) (citations omitted) (emphasis added).
On appeal from an order granting a preliminary injunction, review of a district court’s
44
findings of fact is further limited by the absence of a "fully developed factual record,"41 Zepeda, .
753 F.2d at 724. It is also limited by the relaxed evidentiary standards under which, contrary to
defendants' arguments, the district court may consider news reports and other hearsay evidence that
might not be admissible at a trial on the merits. This Court has made it clear that a district court
"may give even inadmissible evidence some weight, when to do so serves the purpose of preventing
irreparable harm before trial." Flynt Distributing Co. v. Harvey, 734 F.2d 1389. 1394 (9th Cir. 1984).
See also Republic of the Philippines v. Marcos, 862 F.2d at 1363.
Defendants’ objection to the district court’s consideration of declarations and exhibits is also
unpersuasive. It is well established in this Circuit that a preliminary injunction may be granted or
denied on the basis of conflicting declarations submitted by the parties, and that the district court
is not required to take oral testimony. See San Francisco-Oakland Newspaper Guild v. Kennedy, 412
F.2d 541, 546 (9th Cir. 1969); Hoffrilz v. United States, 240 F.2d 109, 111 (9th Cir. 1956). The
urgency required by a motion for a preliminary injunction makes such submissions appropriate; the
weight to be given to such evidence is, of course, a decision left to the discretion of the district
court. See Bracco v. Lackner, 462 F. Supp. 436, 442 n.3 (N.D. Cal. 1978) (citing C. Wright & A.
Miller, 11 Federal Practice and Procedure § 2949, pp. 469-473).
As plaintiffs have demonstrated in the statement of facts above, the district court’s findings
in the present case are not only plausible but fully supported by the record as a whole. These
findings are not clearly erroneous, and they must therefore be affirmed.
IV. THE DISTRICT COURT’S APPLICATION OF THE LAW TO THE FACTS DID NOT
RESULT IN AN ABUSE OF DISCRETION.
A. THE COURT FOLLOWED THE CORRECT PROCEDURES IN ISSUING THE
PRELIMINARY INJUNCTION.
Defendants have several complaints, all without merit, about procedural matters. First,
41As Chief Judge Wallace noted in Zepeda, in some cases parties appeal orders granting or
denying motions for preliminary injunctions "in order to ascertain the views of the appellate court
on the merits of the litigation," even though the disposition of such appeals "provides little guidance
on the appropriate resolution of the merits." 753 F.2d at 724. In many cases, such appeals result
in "unnecessary delay to the parties and inefficient use of judicial resources." Id.
45
defendants suggest that the district court’s order is entitled to less deference because plaintiffs did
not file their motion for a preliminary injunction until ten months after they filed this lawsuit. Cty.
Br., p. 21. The record shows, however, that the need for such a motion did not become clear until
shortly before it was filed. Plaintiffs elected not to request a preliminary injunction when they first
filed their complaint, hoping that the existence of the lawsuit would itself help to stem the deputies’
misconduct. However, while potentially dispositive defense motions were pending for eight months
and all discovery was stayed for six months, counsel for plaintiffs were made aware that the pattern
of abusive conduct was continuing. See CR 28-30, 34-36, 54-55. Plaintiffs filed their motion for a
preliminary injunction only when it became clear that such an injunction was essential to prevent
further irreparable injury. The plaintiffs cannot be faulted for waiting to file their motion until it
was clearly necessary, and the district court cannot be faulted for considering and ruling on the
motion when it was presented.
Second, defendants contend that the district court erred in issuing written findings of fact
and conclusions of law after defendants had filed a notice of appeal. Cty. Br. pp. 22-23; Dep. Br.
pp. 42-43. However, it is neither unusual nor erroneous for a district court to file written findings
"after the entry of an order, or even after an appeal has been taken, provided there is no prejudice
to the appellant." 7 Moore’s Federal Practice 11 65.12, p. 65-153 2d ed. (1991). The appellants here -
- who failed to object in a timely fashion in the district court, but instead requested and obtained
an extension of time from this Court in order to brief issues presented by the written findings and
conclusions (Order of Oct. 16, 1991) - can show no such prejudice.
The failure to file such written findings and conclusions contemporaneously with an order
granting a preliminary injunction does not deprive a district court of power to hold those violating
the order in civil contempt. Bethlehem Mines Corp. v. United Mine Workers o f America, 476 F.2d
860, 862 (3d Cir. 1973). Although as a matter of sound judicial administration the same issue
generally should not be put before two courts at the same time, see 9 Moore’s Federal Practice
11 203.11, p. 3-48 (2d ed. 1991), a district court does not lose all jurisdiction to act on an issue simply
46
because that issue has become the subject .of a notice of appeal - especially where, as here, the
district court’s action aids the appellate court by clarifying the issues on appeal. See, e.g.,
Masalosalo v. Stonewall Ins. Co., 718 F.2d 955 (9th Cir. 1983); Matter o f Thorp, 655 F.2d 997 (9th
Cir. 1981).
An appellate court should consider written findings and conclusions that were issued after
an appeal was filed but before it has been briefed and argued. Gibbs v. Buck, 307 U.S. 66, 78
(1938). In Hybritech Inc. v. Abbott Laboratories, 849 F.2d 1446 (Fed. Cir. 1988), the court held that
the filing of a notice of appeal did not divest Judge Kozinsky, sitting in the Central District of
California, of jurisdiction to issue written findings and conclusions two and a half months after he
orally granted an injunction. Hybritech, 849 F.2d at 1450 (applying Ninth Circuit law and rejecting
claims that differences between written and oral findings required reliance on oral findings only).
As the court in Hybritech recognized, "reduction of the oral ruling into written findings and
conclusions aids [appellate] review." Id. See also Aoude v. Mobil Oil Corp., 862 F.2d 890, 895 (1st
Cir. 1988) (findings and conclusions issued two months after order considered on appeal). To hold
otherwise would elevate form over substance, and would result in unnecessary delay in resolving the
substantive issues on this appeal.42
Finally, defendants consistently seek to portray the district judge as unfair to them and
"totally hostile to their mission." Dep. Br„ p. 3. The record shows, however, that the district judge
initially declined even to permit plaintiffs to file their claims as part of a pre-existing action {see
Appellees’ Request for Judicial Notice on Appeal, pp. 13-14), and did not "relish getting involved
in a situation where the court is asked to indeed supervise ongoing law enforcement activities." ER
1949. He reluctantly concluded, however, that he could not "overlook the evidence that's been
42The cases on which defendants rely are clearly distinguishable. See Griggs v. Provident
Consumer Discount Co., 459 U.S. 56 (1982) (dictum in case involving district court's consideration
of motion to alter or amend judgment after appeal filed); Chemlawn Services Corp. v. GNC Pumps,
Inc., 823 F.2d 515, 527-18 (Fed. Cir. 1987) (district court failed to make any findings or conclusions,
oral or written, until five months after issuance of preliminary injunction and two and one-half
months after filing of notice of appeal).
47
presented so far." Id.
In deciding to grant the preliminary injunction, the district judge carefully weighed the
interests of all parties.43 See ER 1911, 1949-50, 1960. He declined to issue an order in the form
requested by plaintiffs (see Supp. ER 1593; ER 1880), and he took particular care to shape his
order so as to safeguard the rights and concerns of individual deputies (ER 1951 j44 and to honor
defendants’ request that the court not issue an injunction limited to the Lynwood station (ER 1934-
37). By requiring the defendants temporarily to follow their own policies and guidelines, his order
not only minimized the degree of federal intrusion into the operation of the Sheriffs Department,
but also limited the impact on individual deputies by insuring that they would not be expected to
do anything more than comply with rules with which they were already quite familiar. The record
as a whole demonstrates that the district judge carefully considered the rights and interests of all
parties, and that he issued the most limited form of relief that was appropriate under the
circumstances.
B. THE SCOPE OF THE PRELIMINARY INJUNCTION IS PROPER.
1. The Court Did Not Order Any Classwide Relief.
Contrary to defendants’ contentions (see Cty. Br., p. 51; Dep. Br„ pp. 43-44), the preliminary
injunction issued by the district court does not require defendants to follow their policies and
guidelines with respect to anyone other than the named plaintiffs. The district judge stated on the
43Defendants argue that the district court did not describe with sufficient particularity its
consideration of their interests and concerns. See Dep. Br., pp. 7-8, 26-27. In fact, the district court
followed this Court's direction to "’identify the harms which a preliminary injunction might cause
to the defendants and ... weigh these against plaintiffs threatened injury."' Caribbean Marine
Services Co. v. Baldrige, 844 F.2d 668. 676 (9th Cir. 1988) (quoting Los Angeles Memorial Coliseum
Commission v. National Football League, 634 F.2d at 1203). Contrary to defendants' contention,
nothing in Carribean Marine or any other decision of this Court requires a district court to expressly
state each and every way in which the parties’ interests might be affected by a preliminary
injunction.
44Among the possible harms advanced by defendants and accommodated by the district court
were concerns that deputies might be endangered if the court imposed rules that conflicted with
existing policy (ER 371), and that individual deputies might be hampered in defending the damage
claims against them if they were identified by name in the court's order (ER 1935).
48
record that "we don't even have the class that's been certified here," and that "there would not be
any sort of injunctive relief towards a class yet, but [only for the benefit of] all the named
individuals." ER 1929. The district court's written findings also expressly noted that no class
certification motion had been filed. ER 1958.45 Thus, unlike the order in Zepeda, 753 F.2d at 729,
the order in the present case did not grant relief to any persons who were not before the court.46
2. The Court’s Order Is Narrowly Tailored To Minimize Federal Intrusion And
Is Limited To The Scope Of The Probable Constitutional Violations
Established By The Record.
The district court heard argument and received extensive evidentiary submissions from the
parties in order to define the boundaries of preliminary relief pending a full trial on the merits.
Declining to grant relief in the form requested by plaintiffs, the court ultimately confined the
preliminary injunction to the defendants' own policies and guidelines.
After preliminarily finding that LASD deputies in Lynwood had engaged in a pattern of
widespread constitutional violations to the detriment of plaintiffs, the court voiced its concern that
any interim injunction requiring defendants to conform to the Constitution be practicable and
"simple." ER 1949. Defendants contended that their own stated policies already addressed the full
scope of plaintiffs' concerns. See ER 1916-18. While arguing that they had not violated the
Constitution, defendants identified precisely which of their own policies in their opinion governed
the allegedly unconstitutional behavior, filing jointly with plaintiffs a document entitled, "Parties’
Joint Submission Regarding Sheriff Department Policies Relevant to Proposed Preliminary
45On October 28. 1991, after issuance of the district court's order and written findings, plaintiffs
filed a motion for class certification. Supp. ER 230 (CR 162).
46The district court's order is not specifically limited by its terms to the individual named
plaintiffs. If this Court concludes that the order itself must include an explicit limitation, the Court
may clarify or modify the injunction in that respect pending a ruling by the district court on
plaintiffs’ pending motion for class certification. See Nelson v. IBEWLocal 46, 899 F.2d 1557, 1564-
65 (9th Cir. 1990).
49
Injunction Order."47 ER 1741-58.
The district court properly found that enforcement of the policies identified by the
defendants themselves was necessary to protect against further violations of the Constitution.4®
In substance, the terms of the preliminary injunction in the present case closely resemble the search
procedures approved in Zepeda, 753 F.2d at 723, with additional terms necessitated by the factual
record here on the use of force. The district court’s order is thus tailored — far more narrowly than
defendants suggest — to the probable constitutional violations demonstrated by the record.
It was well within the district court's power to order, at this preliminary stage, that
defendants comply with policies which defendants themselves promulgated and which all parties to
the litigation agreed were relevant to the relief requested by plaintiffs.47 * 49 Indeed, plaintiffs
requested far more extensive relief than the district court granted to insure defendants’ compliance
with the Constitution pending a final disposition of this case. See Supp. ER 209-16; ER 1593.
The preliminary injunction was properly based on "the lower court’s factual findings of
47The joint submission sets forth policies and guidelines which state in part that deputies should
"knock and announce authority and purpose and ... must wait a reasonable time to allow any
occupants within to come to the door before forcing entry"; that deputies "shall not cause
unnecessary damage to ... property" and that the "interior of locations searched should be left in
approximately the same condition they were in" prior to a search; that deputies shall not "willfully
subject any person ... to cruel treatment or willfully neglect necessary humane action"; that deputies
"shall use force only when necessary and fully justified by circumstances"; that deputies shall not use
terms that would "defame or demean the nationality or culture of any individual" and shall not
"speak disparagingly of the nationality, color, creed, or belief of any person"; that deputies must
"photograph all subjects and suspects that are taken into custody"; and that deputies must make
reports to their supervisors "[i]n all cases where personnel are required to use physical force." ER
1741-58.
^Defendants discuss in their briefs in this Court a number of additional LASD policies and
guidelines that were not included in the parties' joint submission to the district court. See, e.g., Cty.
Br., p. 46; Dep. Br„ pp. 30. 34. To the extent that these additional policies go beyond the stated
policies which the parties agreed below were relevant to plaintiffs' constitutional claims, they fall
outside the scope of the district court's order.
49The order under review here is "apreliminary injunction [which] may be a ’broad’ prohibition,
as it is intended to be temporary, and necessarily at times lacks the degree of precision which may
be required of a final decree." Johnson v. Radford, 449 F.2d 115, 117 (5th Cir. 1971) (emphasis in
original) (noting that claims of overbreadth may be presented at a final hearing on the merits,
where the trial court can consider defining the boundaries of a permanent injunction more sharply).
50
[LASD] practices violative of the fourth amendment and its finding that the [LASD] reasonably
could be expected to continue the practices... ." Zepeda, 753 F.2d at 726. These findings establish
that LASD deputies utilize "terrorist-type tactics" against plaintiffs within the jurisdiction of the
Lynwood station, thus requiring the minimally intrusive relief ordered -- adherence to policies which
defendants themselves claim would assure the cessation of any terrorist-type tactics. It is at the very
least unseemly for defendants to object to the scope of a preliminary injunction consisting of
nothing more than an order that they follow their own prophylactic measures.
Contrary to defendants' arguments, moreover (see Cty. Br.. pp. 4, 7. 21, 23), the district
court’s order in no way contravenes Pennhurst State School and Hospital v. Halderman, 465 U.S. 89
(1984). Pennhurst held that federal courts are without jurisdiction to redress violations of state law
by state defendants. 465 U.S. at 106, 124. The court of appeals in Pennhurst ordered injunctive
relief based solely upon a pendent state law claim asserted by the plaintiffs. The Supreme Court
reversed, holding that the Eleventh Amendment barred "the claim that [state officials] violated state
law in carrying out their official duties ...." Id. at 103 (italics in original; boldface added).
In the present case, only federal constitutional violations are at issue. The plaintiffs did not
allege and the district court did not find a violation of any state law or departmental policy or
guideline. Rather, the district court ordered compliance with defendants’ own stated policies
regarding the- use of force and the conduct of searches as a temporary method of enforcing
plaintiffs' federal constitutional rights. Pennhurst has nothing whatsoever to say about such an order.
3. The Geographic Scope Of The Order Derives From Defendants'
Representations To The Court Below.
Defendants' contention in this Court that the preliminary injunction improperly covers
LASD employees beyond the law enforcement jurisdiction of the Lynwood station requires another
repudiation of their position in the court below. The geographic scope of the district court’s order
reflects that court's deference to defendants' own factual representations to the court.
Plaintiffs sought a preliminary injunction that would bind deputies acting "within the
jurisdiction of the Lynwood station." ER 1889. See also Supp. ER 200, 209; ER 1593. Defendants,
51
however, vigorously attacked this request, representing to the district court that "plaintiffs’ artificial
and meaningless limitation to deputies assigned to the Lynwood station does not accord with the
operational practices or training of the Sheriffs Department (in which personnel are freely assigned
and transferred) CR 76, p. 26. They also asserted that, due to their assignment policies, an
injunction limited to the Lynwood station would "interject confusion into law enforcement
operations" (ER 1934), and that "[fjrom a practical point of view, ... it would be impossible for the
court to issue such an injunction ...." ER 1936-37. The district court properly exercised its
discretion to fashion a preliminary injunction that would alleviate defendants" concerns.
The application of the court’s order to LASD employees beyond the Lynwood station is also
fully consistent with Rule 65(d), Fed. R. Civ. P., which provides that an injunction is binding "upon
the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those
persons in active concert or participation with them who receive actual notice of the order by
personal service or otherwise." Rule 65(d) is
derived from the common-law doctrine that a decree of injunction not only binds
the parties defendant but also those identified with them in interest, in "privity" with
them, represented by them or subject to their control. In essence it is that
defendants may not nullify a decree by carrying out prohibited acts through aiders
and abettors, although they were not parties to the original proceeding.
Regal Knitwear v. NLRB, 324 U.S. 9,14 (1945) (successors and assigns bound by injunction because
they may be "instrumentalities through which defendant seeks to evade an order or may come
within the description of persons in active concert or participation with them in the violation of an
injunction"). See United States v. Crookshanks, 441 F. Supp. 268, 269 (D. Ore. 1977) ("a court can
enjoin non-parties whose actions threaten to interfere with compliance with prior orders of the
court"). See also ICC v. Rio Grande Growers Co-op, 564 F.2d 848 (9th Cir. 1977).
Defendants themselves established the factual predicate for binding LASD employees
outside of Lynwood as potential "aiders and abettors." Under defendants' representations
concerning the operations of the Sheriffs Department, it was necessary for the district court to
enjoin all LASD employees throughout Los Angeles County in order to guard against nullification
52
of the preliminary injunction when such employees perform police services in Lynwood. See Regal
Knitwear, 324 U.S. at 14. Defendants should be estopped from taking the inconsistent position in
this Court that the injunction is overbroad.
Assuming no bad faith misrepresentation, defendants at the very least should direct their
present concerns not to this Court but to the court below. Any further factfinding can only be
made by that court and, in any event, will undoubtedly be addressed at the trial on the merits. At
this time, however, defendants have no legitimate basis for claiming overbreadth on the very record
they created in the district court.50
C. THE DISTRICT COURTS ORDER COMPLIES WITH THE FORMAL
REQUIREMENTS OF RULE 65(d). FED. R. CIV. P.
Rule 65(d), Fed. R. Civ. P.,51 sets forth the formal requirements for an injunction. "The
primary purpose of Rule 65(d) is to assure adequate notice to parties faced with the possibility of
contempt." Davis v. City and County of San Francisco, 890 F.2d 1438, 1450 (9th Cir. 1989), cert,
denied sub nom. San Francisco Firefighters Local 798 v. City and County of San Francisco, 111 S.Ct.
248 (1990). This Court "has not taken a rigid approach to Rule 65(d)," id. at 1450; even where an
order may be technically defective, it will be upheld so long as the record as a whole demonstrates
that the order in fact provides adequate notice. Id; Henry Hope X-Ray Products, Inc. v. Matron
Carrel, Inc., 674 F.2d 1336, 1343 (9th Cir. 1982). See also Professional Assn, o f College Educators
v. El Paso Community College District, 730 F.2d 258, 273 (5th Cir. 1984), cert, denied, 469 U.S. 881
(1984) (Rule 65(d) does not demand "'unwieldy' specificity, but only that the injunction be framed
50If the Court concludes — in light, of defendants' abandonment of their position below — that
the preliminary injunction should be limited (as plaintiffs originally proposed) to the jurisdiction
of the Lynwood station, the Court may modify the injunction in that respect pending further
hearings below. See Nehon v. IBEW Local 46. 899 F.2d at 1564-65 (affirming injunction while
deleting overbroad terms).
5I"Every order granting an injunction and every restraining order shall set forth the reasons for
its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to
the complaint or other document, the act or acts sought to be restrained; and is binding only upon
the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those
persons in active concert or participation with them who receive actual notice of the order by
personal service or otherwise." Fed. R. Civ. P. 65(d).
53
so that those enjoined will know what conduct the court has prohibited").
The order in the present case satisfies all the formal requirements of Rule 65(d), and the
record clearly demonstrates that the order provides adequate notice to defendants.
1. The District Court’s Oral And Written Findings Of Fact And Conclusions
Of Law Set Forth The Reasons For Issuance Of The Preliminary Injunction.
Rule 65(d)’s requirement of a statement of reasons is satisfied if the record as a whole
shows that the parties clearly understood the basis for the injunction. Lawrence v. St. Louis-San
Francisco Ry. Co., 274 U.S. 588. 591 (1927); Combs v. Ryan's Coal Co.. 785 F.2d 970. 978-79 (11th
Cir. 1986), cert, denied, 479 U.S. 853 (1986) (citing Ross-Whitney, 207 F.2d at 198 (9th Cir. 1953)).
The record in the present case contains both oral32 (ER 1948-51) and written33 (ER 1957-61)
findings and conclusions that leave no doubt as to the district court’s reasons for issuing the
preliminary injunction. Indeed, even where findings are insufficient or entirely absent, the appellate
court is not foreclosed "from examining the record to determine if sufficient evidence supports the
issuance of injunctive relief." Sampson v. Murray, 415 U.S. 61, 86 n.58 (1974).
2. The District Court’s Order Is Sufficiently Specific In Its Terms, And It
Describes In Reasonable Detail The Acts Sought To Be Restrained.
The purpose of the specificity requirement of Rule 65(d) is twofold: to insure that
defendants receive adequate notice of what is enjoined, and to allow meaningful appellate review.
Schmidt v. Lessard. 414 U.S. 473, 476-77 (1974). Both of these purposes are served by the order
in the present case.
Defendants contend that the distriet court’s order is not sufficiently specific because it
52As this Court has recognized, even oral findings and conclusions are sufficient under Rules
52(a) and 65(d), Fed. R. Civ. P. Davis, 890 F.2d at 1451.
33Where there are both oral and written findings and conclusions, "the rule in this Circuit is that
the formal findings of fact and conclusions of law supersede the oral decision." White v. Washington
Public Power Supply System, 692 F.2d 1286, 1289 n.l (9th Cir. 1982). There is, in any event, no
contradiction between the district court’s initial oral findings and the later written findings. Nor
is there any contradiction between the district court's general finding that plaintiffs' evidence is
more credible and the court’s reliance on defendants' assertion that limiting injunctive relief to
Lynwood alone would be infeasible and unworkable. See Section IV(B)(3) supra.
54
orders them to "[fjollow the Department's own stated policies and guidelines regarding the use of
force and procedures for conducting searches."54 55 ER 1889. While "’[o]rdinarily an injunction
should not incorporate by reference another document,’" Davis, 890 F.2d at 1450 (quoting Henry
Hope X-Ray, 674 F.2d at 1343), this Court has affirmed an order that incorporated by reference
"department rules already binding on officers" because "[i]t is unlikely the officers could argue they
were unaware of those rules." Davis, 890 F.2d at 1450. See also Henry Hope X-Ray, 674 F.2d at
1341 (incorporation by reference to sealed appendix): Combs, 785 F.2d at 97 (incorporation by
reference to agreement attached to complaint); Perfect Fit Industries v. Acme Quilting Co., 646 F.2d
800, 804 (2d Cir. 1981), cert, denied, 459 U.S. 832 (1982) (incorporation by reference to unattached
"Exhibits 2 and 3").
In the present case, after counsel for the county defendants represented to the district court
that the preliminary injunctive relief sought by plaintiffs was already covered by existing LASD
policies (see ER 1916-18), the court directed the parties to identity the specific policies and
guidelines involved. ER 1918-22. Counsel for the parties subsequently conferred and submitted
a joint statement to the court, amounting to a stipulation, which set forth each specific item of relief
sought by plaintiffs in conjunction with the language of each LASD policy and guideline the parties
agreed was relevant. ER 17417'’ The district court's order preliminarily enjoins the defendants
to follow these "stated" policies and guidelines "regarding the use of force and procedures for
conducting searches." ER 1889.
54According to the county defendants, the proposed orders submitted by plaintiffs (Supp. ER
209; ER 1593) apparently do not suffer from the same infirmity. See Ctv. Br„ p. 9 (plaintiffs' initial
proposed order required "all defendants and their employees and agents while within the
jurisdiction of the Lynwood Sheriffs substation to follow various specific procedures ...") (emphasis
added); id., p. 14 (plaintiffs' modified proposed order "included specifics ...") (emphasis added). The
individual deputy defendants, on the other hand, take the position that courts cannot enjoin police
misconduct under virtually any circumstances. See Dep. Br.. p. 30 (claiming the "virtual
impossibility of fashioning an injunction against police misconduct which would be broad enough
to allow flexibility but which would be specific enough to delineate prohibited from permissible
actions").
55The parties also filed separate statements supplementing their joint submission. ER 39, 41.
55
Like the fire department officers in Davis who were ordered to follow "already binding"
rules. "[i]t is unlikely the [LASD] officers could argue they were unaware of these rules." 890 F.2d
at 1450. Indeed, by issuing a preliminary injunction requiring defendants to follow their own
policies and guidelines regarding use of force and search procedures, which their counsel had
"stated" for the record, the court insured that deputies would not have to learn yet another set of
rules, but could conduct themselves in accordance with rules with which they were already
presumably quite familiar. The policies and guidelines to which the district court's order refers are
the defendants' own, and they were identified by the parties themselves in submissions made to the
court immediately before the order was issued. See Perfect Fit Industries, 646 F.2d at 809
(defendant's own reference to unattached exhibits incorporated by reference in injunctive order
revealed that defendant knew precisely what was at issue).
The order here is therefore very different from the "abstract conclusion of law", found too
vague in International Longshoremen’s Association v. Philadelphia Marine Trade Association, 389 U.S.
64, 69-70 (1967). The order’s reference in the present case to defendants’ "own stated policies and
guidelines" (ER 1889) gives the defendants adequate notice of what they are required to do and
what they are prohibited from doing.
The order in the present case also allows this Court to know precisely what it is reviewing.
Unlike the order in Schmidt v. Lessard which directed defendants to refrain from enforcing "the
present Wisconsin scheme," 414 U.S. at 476. the order here directs the defendants to follow policies
and guidelines that were specifically identified on the record. Also unlike the order in Schmidt, the
order in the present case is not a permanent injunction entered on the basis of a "comprehensive
opinion" after a final determination on the merits. 414 U.S. at 474. Rather, the order under review
here is "a preliminary injunction [which] may be a 'broad' prohibition, as it is intended to be
temporary, and necessarily at times lacks the degree of precision which may be required of a final
56
decree."56 Johnson v. Radford. 449 F.2d 115. 117 (5th Cir. 1971) (emphasis in original) (noting that
claims of overbreadth may be presented at a final hearing on the merits, where the trial court can
consider defining the boundaries of a permanent injunction more sharply).57
CONCLUSION
For the foregoing reasons, plaintiffs-appellees request that the Court affirm the order of the
district court. If the Court concludes that there is any defect in the form of the district court’s
order, plaintiffs-appellees request that the Court modify the order accordingly.
Dated: November 13. 1991.
Respectfully submitted.
NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND. INC.
PATRICK O. PATTERSON
BILL LANN LEE
KEVIN S. REED
CONSTANCE L. RICE
JULIUS L. CHAMBERS
CLYDE E. MURPHY
MARINA C. HSIEH
ALAN JENKINS
ANTHONY G. AMSTERDAM
HUGH MANES
Patrick O. Patterson
Attorneys for Plaintiffs-Appellees
'6We agree with defendants that an injunction cannot sweep so broadly that it enjoins new
violations "unlike and unrelated to that with which [the defendant] was originally charged." NLRB
v. Express Publishing Co., 312 U.S. 426. 436 (1941). See Nelson v. IBEW Local 46, 899 F.2d 1557.
1564 (9th Cir. 1990) (applying NLRB v. Express Publishing). It is equally well established, however,
that "[a] federal court has broad power to restrain acts which are of the same type or class as
unlawful acts which the court has found to have been committed or whose commission in the
future, unless enjoined, may fairly be anticipated from the defendant's conduct in the past." NLRB
v. Express Publishing, 312 U.S. at. 435.
■ If this Court concludes that the district court should have stapled a copy of the relevant
policies to its preliminary injunction, this Court may remedy the defect by issuing its own order that
the incorporated policies be attached to the injunction and served on the affected parties. See
Davis, 890 F.2d at 1450-51.
57
STATEMENT OF RELATED CASES
Counsel for plaintiffs-appellees are not aware of any related cases pending in this Court.
\ ■ <„ u.
Patrick O. Patterson
Attorney for Plaintiffs-Appellees
58
PROOF OF SER V IC E
On this date, a copy of the Brief for Appellees was served on
the following persons in the manner set forth below:
DE WITT W. CLINTON,
County Counsel
S. ROBERT AMBROSE,
Assistant County Counsel
PATRICK T. MEYERS,
Principal Deputy County Counsel
648 Hall of Administration
500 West Temple Street
Los Angeles, CA 90012
COTKIN, COLLINS & FRANSCELL
F. James Feffer, Esq.
201 North Figueroa Street,
Suite 1100
Los Angeles, CA 90012
GREINES, MARTIN, STEIN &
RICHLAND
Martin Stein
Timothy T. Coates
Robert A. Olson
9601 Wilshire Blvd., Suite 544
Beverly Hills, CA 90210
MORRIS, POLICH & PURDY
Robert S. Wolfe, Esq.
801 South Grand Ave., 17th
Floor
Los Angeles, CA 90017
Certificate of Kevin S. Reed
I certify that I am a citizen of the United States and am
employed in the County of Los Angeles, State of California. I am
over the age of eighteen years and not a party to this action, and
I am a member of the bar of this Court. I certify that on this
date, I electronically transmitted a copy of the Brief for
Appellees from the New York office to the Los Angeles office of the
NAACP Legal Defense and Educational Fund, Inc., and that I directed
that copies of the brief be printed in Los Angeles and personally
served on the morning of November 13, 1991, on Robert A. Olson and
Robert S. Wolfe at the above addresses.
1
I declare under penalty of perjury that the foregoing is true
and correct.
Executed on November 13, 1991.
Kevin S. Reed
Certificate of Clyde E. Murphy
I certify that I am a citizen of the United States and am
employed in the County of New York, State of New York. I am over
the age of eighteen years and not a party to this action. I
certify that on this date, I directed that a copy of the Brief for
Appellee be sent via Federal Express from the New York office of
the NAACP Legal Defense and Educational Fund, Inc., to all of the
foregoing counsel for Appellants at the above addresses.
I declare under penalty of perjury that the foregoing is true
and correct.
Executed on November 13, 1991.
2