Rizzo v. Goode – Oral Argument – November 11, 1975

Media for Rizzo v. Goode

Audio Transcription for Opinion Announcement – January 21, 1976 in Rizzo v. Goode

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Warren E. Burger:

We will hear argument next in 74-942, Rizzo against Goode.

If counsels in United States against Foster Lumber Company are standing by they maybe excused for today if they wish.

Mr. Penny, you may proceed whenever you are ready.

James M. Penny, Jr.:

Mr. Chief Justice, and if it please the Court.

This case is before you on writ of certiorari to the Third Circuit Court of Appeals and concerns the propriety of the entry of mandatory injunctive relief where the District Court expressly found that the defendants had not violated plaintiff’s constitutional rights, where there was no continuing course of conduct to enjoin, and where there was an adequate remedy of law.

This case is before this Court in consolidated form.

It originated as two separate cases filed and tried for the most part in 1970.

They were consolidated in 1973 by the District Judge for purposes of relief.

The plaintiffs are essentially the same individual plaintiffs suing on behalf of the class of all Philadelphia citizens and on behalf of the specifically included class of all Philadelphia’s black citizens.

The defendants also are essentially the same.

They are the Mayor, the Police Commissioner, and the Managing Director of Philadelphia and in addition, a Police Captain.

The class plaintiffs averred that the defendants, these defendant city officials, had engaged upon a course of conduct of the basest, lowest form of racial discrimination.

The averment was that these city officials had made a conscious decision to deprive a segment of Philadelphia’s society of their basic constitutional freedoms.

It was averred that genocide was the goal that now Mayor Rizzo had actually planned and was attempting to carry out the extermination of Philadelphia’s black community.

And the vehicle for carrying out this plan was supposedly the Philadelphia Police Department, whose officers, it was alleged, were ordered, directed and encouraged to trample upon the constitutional rights of Philadelphia’s citizens, and in particular, Philadelphia’s black citizens.

After 21 days of testimony and after 250 witnesses or approximately 250 witnesses, the Court was forced to conclude that on those allegations plaintiffs utterly failed to prove their case.

The Court concluded that there was no policy of racial discrimination.

There was no policy to violate constitutional rights.

The Court refused to find that any defendant violated any constitutional right of any class plaintiff or any individual plaintiff.

Additionally, aside from the claims of palpably unconstitutional conduct, plaintiffs in the Goode case averred that the police department’s internal disciplinary procedures for disciplining police officers were, and in their words, inadequate.

They averred they had a right and a need to adequate administrative procedures internal to the police department and they demanded a remedy in the form of the adoption of their scheme for their, in their words, adequate internal procedures.

The Court heard evidence on this issue and decided that the police department’s procedures were indeed inadequate, in terms of disciplining police officers and in terms of receiving citizen complaints.

Yet both the District Court and the Circuit Court pointed out that there was absolutely no constitutional right in the plaintiffs or in the class plaintiffs to have any improved procedures.

Essentially the basic question is whether a citizen has a constitutional right enforceable in the Federal Courts for his elected officials and his elected officials’ appointees to act wisely or adequately or efficiently and the Court said, no, they do not have that right.

But nevertheless the relief was entered and it was entered because the Court heard evidence and made findings regarding separate, individual, independent incidents of police misconduct.

There are approximately 38-40 introduced at trial.

The Court made findings and it is not entirely clear from the Court’s opinion but it appears that on approximately 25 of these incidents the Court concluded that the police officers involved who are not defendants did act unconstitutionally towards these individual citizens.

The question —

William H. Rehnquist:

Well, I noticed in the Judge Fullam’s opinion that in the Goode case he makes specific findings with respect to several of those incidents indeed this was an unconstitutional invasion of the plaintiff’s rights.

But in the COPPAR case I do not find those specific findings.

James M. Penny, Jr.:

In the COPPAR case there — on two of the incidents the Court made a finding.

I think one; he characterized the police action as an overreaction.

That was in the Locke and Perry incident where the finding was that the police officer had a bucket of water thrown on him from the third floor when he was checking out a stolen car and then the police went in and did overreact.

The other one was the Brown and Smalley incident where, I believe he used the words, the police acted unreasonably, although he did not use the words unconstitutionally.

I am — when I said approximately 25 incidents I am just giving the best estimate that you could, out of the whole case, find maybe 25 incidents or so where there was conduct which is arguably unconstitutional.

I do not say that Judge Fullam concluded that in 25 incidents.

Judge Fullam’s conclusions as to unconstitutionality, I believe, only go to the six of the incidents in the Goode case.

Mr. Penny, this Court stayed Judge Fullam’s order, did it not?

James M. Penny, Jr.:

Yes, Your Honor.

Has there been any extent of compliance with it despite it is stayed.

James M. Penny, Jr.:

No Your Honor, the changes have not been implemented as far as I know.

I have not checked on it but I do not believe I would be stating the facts in all candor if I said they were.

I do not think there have been.

The Court found on the basis of these individual sporadic incidents of conduct, these 25 or so incidents, that they had occurred in the past and that in the future sporadic incidents also would occur.

And the question is assuming that a remedy can be awarded in the absence of a right and you must remember that the District Court refused to find that the defendants, these defendant city officials, had embarked upon any policy to violate anyone’s constitutional rights.

But assuming that a remedy is proper, some remedy, the question is whether the Court’s prediction that these individual incidents will occur in the future, on a part of persons, not defendants, presents an inappropriate case for the entry of mandatory injunctive relief.

Now generally I believe that for a single act or an independent act in violation of one’s constitutional rights by another one acting under color of state law, the typical remedy is damages.

However, if a plaintiff establishes a continuing course of conducts, something that is violating his constitutional rights and immediately threatens to violate his constitutional rights in the future, then that plaintiff is entitled to have that conduct stopped.

But here we have 25 incidents involving 30 police officers strung out over a period of three years where the Court found in that same period that there were 300,000 arrests.

During that period of time there were approximately 8,000 police officers and there are literally millions of police-citizen interactions which do not amount to arrest.

The plaintiffs not only failed to establish a course of conduct to be enjoined, they failed to establish a pattern of conduct.

We have 25 incidents, each one against — if properly pleaded against the appropriate defendant may well be eligible for damage relief.

You put them together in one case, you still have 30 separate incidents without a single unifying characteristic, other than you have Philadelphia police officers who, I do not think in this case, are acting any differently, and I think as the judge found, the case is typical of most urban police departments that in the course of events, in the course of happenings, unconstitutional actions by police officers do occur.

We see this in bad arrests.

We see this in violation of rights and arrests, it happens.

There is nothing mysterious about it.

I take it you are conceding that there have been some constitutional violations here but no greater than anywhere else under the impact of police duties.

James M. Penny, Jr.:

I think it is a fair reading of Judge Fullam’s opinion that there were incidents here which violated the constitutional rights of certain persons.

However, the perpetrators of that conduct were not defendants, they are individual police officers.

And there was no thread running through this conduct.

James M. Penny, Jr.:

There was no motivation behind it; there was nothing directing it.

And that is what separates this case from Allee versus Medrano, from Hague versus the CIO, from Lankford versus Gelston out of the Fourth Circuit which was cited by this Court in Allee, where each of one of those cases involved a policy determination by police or municipal officials that we are going to violate the constitutional rights of certain people.

We are going to run the farm workers out of the Rio Grand Valley.

We are going to run to CIO out of Jersey City.

We are going to search the homes of black citizens based on anonymous tips.

We are going to do it.

And the Court comes in; it sees that conduct and says, no, you are not, you stop it.

Here there is nothing to stop.

The attempt and the hope of this relief is that maybe this future unknown acts that are specific yet we do not know who they are going to be perpetrated by, who the victim is, when they are going to occur, where they are going to occur, how they are going to occur or why they occur or whether they are going to occur except that the Court did find that that was probable that it would occur but it is still guess work.

Warren E. Burger:

I suppose you suffice to say that with 8,000 policemen operating in a large city in metropolitan area that you could concede that that 25 incidents or 30 incidents of violations would occur in the same time span.

James M. Penny, Jr.:

Over the course of the three year period?

Warren E. Burger:

No.

James M. Penny, Jr.:

I think I could —

Warren E. Burger:

Would it be rather remarkable if it was that low?

James M. Penny, Jr.:

I think that would be true also, Your Honor.

I think — the Circuit Court used the term pattern.

I do not believe Judge Fullam did but I think the Circuit Court used the term pattern of police abuse was established.

But as I understand the word pattern, it is an outgrowth of Title VII where Congress has said, you do not have to show an intentional policy to do anything to discriminate in your employment.

All you have to do is show the effect of your existing policies and if the effect of those existing policies is to demonstrate a pattern of conduct statistically then the Courts will do something about it, but there was no similar provision in 1983.

There is no pattern here.

There is no clear and imminent threat which can should be or can be enjoined.

The question as to who, when, where, how, and why are unanswered in the record and they are answerable.

And the failure — and this remedy, as I said, only hopes to stop future unknown acts.

We do not if it will or not and the reason we do not know is because it does not go to any unconstitutional conduct.

Unless you are prepared to say that inadequate procedures are in themselves unconstitutional.

Then the remedy and — the District Court was not prepared to say that, the Circuit Court was not prepared to say that, then the remedy does not enjoin anything that is unconstitutional.

It just substitutes the Court’s judgment on the adequacy of Internal Police Department’s Administrative Procedures.

Now, plaintiffs concede that it is impossible to frame injunctive relief which would stop the constitutional violation shown in this case, which would stop this future various and independent acts.

The reason is not because of anything unique to the police department.

It is not unique to this case or to the defendants in this case.

James M. Penny, Jr.:

The reason is because of a fundamental failure in the plaintiff’s case, i.e. they failed to prove the underlying policy.

They failed to prove the continuing course of unconstitutional conduct.

They failed to prove the existence of something which could be enjoined.

And the real impossibility of framing such injunctive relief, in view of this fundamental fault in their case, comes to the floor when you understand that they have attempted to present these unrelated incidents of police conduct.

For this purpose, to create and an injunctive decree which will preserve for all time and for all people in every conceivable right existing under the constitution from violation for any police officer, because there is no definition of the rights here, there is no definition of who, when, where, how, and why.

I respectfully submit —

Lewis F. Powell, Jr.:

Can I interrupt you for just a minute?

You mentioned the fact, as I understood it that over the three-year period there were 300,000 arrests and about 25-30 specific examples of police misconduct introduced in evidence.

Was any evidence or is there any evidence in this record of comparable police misconduct and to the effect that it is most likely to occur in Philadelphia than in other large cities?

James M. Penny, Jr.:

No your Honor.

In fact, Judge Fullam says that it is rather typical of any urban police force at, I believe, it is on Page 123 of the Appendix.

A review of this material suggested the problems disclosed by the record in the present case are not new and are fairly typical of the problems afflicting the police departments in major urban areas.

Lewis F. Powell, Jr.:

Is that on Page 123-A?

James M. Penny, Jr.:

Yes Your Honor.

I believe it is — yes Your Honor, about two-thirds of the way down after the succession of citations to various treatises and commission reports. Because of the failure of the plaintiffs to establish the existence of any conduct whatsoever on the part of the defendant city officials in this case, and as I said the Court — in view of the allegations the Court was forced to make that statement that there were no policy.

Mandatory injunctive relief is inappropriate, first of all, because it is beyond the power of the Court, because it is just fundamental that where you fail to establish a right against the defendant you cannot have a remedy.

Secondly, it is even assuming that a remedy would be appropriate there was nothing here to enjoin; there was no conduct, it is just a guess work.

Thank you, your Honors.

I would like to reserve the rest of my time.

Warren E. Burger:

Very Well Mr. Penny.

Mr. Hearn.

Peter Hearn:

Mr. Chief Justice, may it please the Court.

At no point in their presentation today do the petitioners address themselves to the findings which Judge Fullam did make.

To the contrary they blithely and incorrectly assert that both the District Court and the Court of Appeals found that they had engaged in no legal wrongdoing.

However, there were a number of expressed findings upon which this relief was predicated.

These findings —

Byron R. White:

(Inaudible) not maybe so but is there — was there some finding that these particular defendants did wrong?

Peter Hearn:

Yes sir.

There was a finding that they engaged in a policy to avoid or minimize the consequences of proven police misconduct.

What page is that?

Peter Hearn:

That is on Page 124-A of the Appendix.

Byron R. White:

Is that and did they find that was constitutionally wrong on the defendants or not?

Peter Hearn:

Mr. Justice White, the premise of both the District Court and the Court of Appeals was that the defendants tolerated, condoned or acquiesced in the misconduct of those under their supervision and control.

Byron R. White:

Where is that finding?

Peter Hearn:

Well the finding is that there was a policy to avoid or minimize the consequences of proven police misconduct.

Now this is —

Peter Hearn:

That is on Page 124-A.

This is five.

Warren E. Burger:

At some point would you juxtapose that with finding number 3 above and suggest what you think the relationship is, the finding that the evidence does not disclose any conscious departmental policy of racial bias or discriminatory enforcement on racial alliance?

Peter Hearn:

Yes sir.

The finding 3 above I believe addresses itself simply to a policy of racial bias, and I believe the finding to which I have just adverted in number 5 has to deal with the failure to do anything about all forms of illegal conduct by police officers whether it is the application of excessive force, whether it is a question of illegal arrest.

In other words I think that he is saying in number 3 that there is no expressed racial motivation here.

But I believe to the contrary in number 5 he has expressly found that there is a policy of condoning this unacceptably high number.

William H. Rehnquist:

Mr. Hearn.

Peter Hearn:

Yes sir.

William H. Rehnquist:

Do you read the word police misconduct in that finding 5 that you just referred, as being the equivalent of constitutional violations or as embracing something more than that.

Peter Hearn:

There was evidence beyond the scope of unconstitutional conduct.

There was considerably more evidence of unconstitutional conduct than my Brother would indicate as to what the Court meant by this term, I do not know.

But certainly our case is grounded upon specific findings of unconstitutional activity which was acquiesced and condoned where there was a policy to minimize or avoid the consequences by those who were conceded and found to be in position of supervision and control.

William H. Rehnquist:

If Judge Fullam then followed your theory of the case or in order to have his findings support your theory, you would have to read misconduct to mean constitutional violations in that finding, would you not?

Peter Hearn:

I think that we can get some glean on what Judge Fullam intended by referring to Page 130-A where he concludes toward the bottom of his opinion in the next to last paragraph, violations of constitutional rights by police do occur in unacceptably high number of instances, and so I would submit Mr. Justice Rehnquist that he is talking about unconstitutional acts as affording the underpinning, the basis for the remedy that he entered.

Now —

Potter Stewart:

But your answer to Mr. Justice Rehnquist’s question is yes?

Peter Hearn:

Yes sir.

That is correct.

Both the District Court on Page 124-A and the Court of Appeals did use the word pattern.

As I have said, it found that the number of violations was unacceptably high and with respect to whether they were two years, three years or a shorter period, in the Goode case there were six incidents over 15 months involving just two police officers.

In the COPPAR case, which was later consolidated with the case in which I was counsel originally, there were 28 incidents over the period of five months.

There was also extensive testimony that this was basically a tip of the iceberg problem and that moreover there was a policy by the department to discourage the filing of complaints whereby this information would come to the attention of the senior officers.

So that the time period, I submit, is much greatly reduced over what was indicated to the Court earlier and that indeed there was a greater concentration when the temporary restraining order entered by Judge Fullam was in effect.

Peter Hearn:

There were some 16 incidents in the COPPAR case over three-and-a-half month period prior to the entry of that restraining order and there were 12 incidents during the one-and-a-half months in which the restraining order was in effect.

So that the frequency was ascending that the bulk of the evidence in this case is in a much more confined period and as I have said the period of concentration was greater when there was a court order restraining unconstitutional activity.

William H. Rehnquist:

Is there any reason to think that any of that concentration was due to the Black Panther Convention activity in September of that year?

I believe that was why the restraining order was initially entered, was it not?

Peter Hearn:

Well, it was entered about that time.

I do not believe there was any connection, factual connection that these incidents which were proven did not grow out of that convention.

And by the way I think that the reference to one sentence in the complaint of the case that was later consolidated with Goode to the reference to genocide and that the reference to the 6,000 advocates of violence and non-violence who were coming to the City of Philadelphia is no more that an attempt to discredit this case before this Court.

In fact, as we have attempted to point out, the Convention itself was not involved in these incidents and more over it was attended by a much smaller number something like 500 people.

It was entirely peaceful and it involved largely residents of the City of Philadelphia.

Warren E. Burger:

Mr. Hearn, before you go on, I note in the Court’s opinion that it refers to some very general matters here.

It recites the President’s Commission on Law Enforcement at Page 123-A, referring President Johnson’s Commission of 1967, described the Philadelphia Highway Patrol as a skull-cracking division and then it gives some citation.

Can you enlighten me on how something that happened several years before with a different police department has any relevance to this, to the findings in this case?

Peter Hearn:

Well, I believe that this is a reference published by a Governmental Advisory Commission of the highest order.

Warren E. Burger:

Let us assume that it is entirely correct that the Philadelphia Highway Patrol indeed was guilty of having a skull-cracking division, what does it have to do with the Philadelphia Police Department?

Are the two connected in some way or are they under the same —

Peter Hearn:

Well — oh, yes sir.

The Philadelphia Highway Patrol is a part of the Philadelphia Police Department and one of the defendants here in both cases is Captain Murphy, who is the Commander of the Highway Patrol and there was evidence of a substantial number of incidents here involving highway patrolmen and I believe that that was the basis of the reference to it by Judge Fullam.

Now —

Lewis F. Powell, Jr.:

Is the Highway patrol a traffic unit?

Peter Hearn:

No sir, definitely not.

It is — I am going mildly outside of the record but I believe it is an elite group where there are more stringent physical requirements.

I believe it is considered today a more mobile, a more forward, aggressive entity as a part of the department.

It is not related to the control of traffic at all.

It does have the right to arrest for speeding and alike, but —

Warren E. Burger:

I suppose the procedures of that inquiry were not adversary in any sense, were they?

Peter Hearn:

Before the Commission, Mr. Chief Justice?

Not to my knowledge.

I am not entirely certain how the record and the findings of the Commission were developed, however.

William H. Rehnquist:

One of the matters of this Court was on the Commission side.

Peter Hearn:

But I think that the essential point that the petitioners fail to understand here is that we are not talking about a right to the procedure which is set forth in Judge Fullam’s decree.

Peter Hearn:

That is the remedy.

The right that was violated was the acts of those who were under the supervision and control of the defendants.

The remedy is what Judge Fullam concluded on the basis of his findings of fact and his consideration of the entire record was the most appropriate but mild remedy as to what this decree does.

I think it is particularly important to point out that it is procedural only.

This decree has nothing to do with what the substantive standards are that are applied to police activities.

It has nothing to do with who decides.

This is police judging police.

All that this decree does is to specify that there will be complaint forms of a certain kind available, that they will be distributed at certain locations, that the investigation will not involve what the facts disclosed where the inhibiting element of the chain of command, that there would be a six month statute of limitation so to speak relative to the submission of these complaints, that there will be minimum investigational steps and minimal time periods, that anonymous complaints will be handled, and that frivolous complaints will be screened out.

There is a procedure for eliminating frivolous complaints.

The hearing that is involved only if there is a dispute on the facts as to a non-frivolous complaint and finally there is a provision that records will be kept for a period of two years.

Byron R. White:

How about the decision maker?

Peter Hearn:

The decision maker is no different.

The decision maker is the Commissioner of Police or his deputy in certain cases but the — there is —

Byron R. White:

Is this a provision on 129-A in the Appendix in the opinion.

Peter Hearn:

No, this is Judge Fullam’s directive to the police department.

He said that they were to author a program which would be addressed to the general problem and that on 129-A he is discussing some of the points that he believes —

Byron R. White:

Well he says, adjudication of non-frivolous complaints by an impartial individual or body insulated as far as practicable from the chain of command pressures.

Now is that — the police would have to conform with that directive if the injunction were not stayed.

Peter Hearn:

That is correct but that —

Byron R. White:

What did he mean by that, do you know?

Peter Hearn:

Well, he meant that the evidence showed Mr. Justice White that District Commanders that would be somebody running a police station or precinct, tended to inhibit the flow of the complaint if it were made in that district, that it was their interest to not report complaints about what was —

Byron R. White:

(Inaudible) do you know what he meant by an impartial individual or body to make decisions?

Peter Hearn:

Well —

Byron R. White:

Did he mean non-police?

Peter Hearn:

No, he did not.

Byron R. White:

How do you know he did not?

Peter Hearn:

Well, because the decree makes it clear that it is police, that it is the police commissioner.

Byron R. White:

(Inaudible).

Peter Hearn:

Yes, sir.

Perhaps I could illuminate, Mr. Justice White, this was a general directive by Judge Fullam but I submit that it has to be considered along with the decree that was actually entered and the decree makes it clear beyond any doubt that there is no change whatsoever in the designation of the people who passed judgment on this conduct so that it is —

William J. Brennan, Jr.:

Mr. Hearn.

Peter Hearn:

Yes, sir.

William J. Brennan, Jr.:

What about the procedures that are at 133-A about 145 in the letter to Judge Fullam, by Mr. McNally, are those — were they are acceptable or accepted or what?

These are the procedures that as I read this letter intended to comply with the decree of March 14.

Peter Hearn:

That is correct.

William J. Brennan, Jr.:

And have they been made effective?

Peter Hearn:

Following —

Harry A. Blackmun:

They are in — the petition for writ of certiorari, are they not?

Peter Hearn:

The final decree is, Mr. Justice Blackmun.

As modified, Mr. Justice Brennan.

In other words, Judge Fullam directed that a program be submitted by the defendants and this is premised upon the good faith of the defendants in which we fully concur that with mild pressure from the Court that they would in effect put their house in order —

Warren E. Burger:

Mr. Hearn let me back up a little bit for the last paragraph of Judge Fullam’s opinion.

You attached your case here on constitutional grounds, did you not?

Peter Hearn:

Yes sir.

Warren E. Burger:

Now, Mr. Judge Fullam masters 67 pages of writing a very comprehensive opinion, says, “In conclusion, it should be emphasized that this Court has not decided that the plaintiffs and the class they represent have a constitutional right to improved departmental procedures for handling civilian complaints against police.”

And yet that is precisely the relief that he ordered, is it not?

Peter Hearn:

It is, Mr. Chief Justice Burger, the remedy that he ordered but this case was not tried nor was it the plaintiffs’ contention at any time that we had a right to that.

The right that we are claiming is not to have violations on the street by those under the supervisions and control of the defendants in unacceptably —

Warren E. Burger:

But at this stage on review, we are not concerned precisely or particularly with what you have asked but on what the Court decided.

You cast it on constitutional grounds; the Court granted some relief, while at the same time conceding that there was no constitutional right to the relief.

Now, that leaves only — at least I suggest to you, is it not his fallback provision that this must be under some supervisory jurisdiction if it is not constitutional, and he is exercising a supervisory jurisdiction over a State, is it not?

Peter Hearn:

Mr. Chief Justice, I disagree with your wording of the —

Warren E. Burger:

Well, you tell me what it is?

Peter Hearn:

— of the last paragraph, because I believe that —

Warren E. Burger:

You mean you disagree with what I read from this.

Peter Hearn:

No sir, I do not disagree with what you read, I agree with your interpretation, because I believe that in the following sentence, he goes on to say what the Court has decided is that under existing circumstances violation of constitutional rights by police do occur in unacceptably high number of instances, and in the absence of change and procedures such violations are likely to continue to occur and that revision of procedures for handling civilian complaints is a necessary first step in attempting to prevent future abuses.

Warren E. Burger:

That is an entirely logical extension of the part that I read, but where does the United States District Judge, what is the source of his authority to impose a supervisory power over a state or a municipal government in these circumstances?

Is it not his power limited for granting damages or injunctions, and in the ordinary sense, stops doing something?

Peter Hearn:

No sir, I believe it is not, and I believe that the school desegregation cases are examples of remedies fashioned to achieved a right —

Warren E. Burger:

Do you think this is a parallel to desegregation?

Peter Hearn:

I do not think it is a factual parallel but as it relates to interplay between right and remedy, I believe that it is a comparable to the reapportionment cases and to the desegregation cases.

That 1983, Section 1983 in the Fourteenth Amendment, as this Court said in Monroe versus Pape, includes or involves, brings with in its sphere under the rubric of color of state law, those state officials who are unable or unwilling to enforce a state law, and that this is what the unconstitutional activity is, and that — the Court had before it a number of possibilities.

It could have entered an injunction of the sort that it had for a temporary restraining order for a shot period of time which is much like the decree in Allee versus Medrano, which simply says, you may not engage in unconstitutional activity henceforth.

But I submit that that leads to exactly to thing that courts should seek to avoid and that is the bringing in, hauling in to Court of specific police officers to stand under the test of hindsight for some act that they might have done at the 10th and South Street on a particular night.

William H. Rehnquist:

But will you not get a certain amount of hauling in here if the District Captain did not process the complaint in 45 days?

I mean there are certainly directives in Judge Fullam’s order that would be the basis for contempt citation.

Peter Hearn:

If there was a willful failure to do something mandated by the order, I submit Mr. Justice Rehnquist, that would be appropriate for a contempt proceeding but there is also a retention of jurisdiction here and that if the defendants, at any time for any of the reasons that they argue here in many instances for the first time, make this order unworkable, then they can go back, they can present to Judge Fullam evidence about the impact on the operations room which they claim here but never claimed below and never produced on any evidence on below, and he would consider that and make a finding and if he thought that it were proper contention and that we did not have any evidence contrary that was properly cognizable that he would make a finding and modify his order.

This procedure allows for exactly the working out of these elements of mechanical difficulty shall I say, as the decree goes along.

Warren E. Burger:

Mr. Hearn, just let me follow this analogy.

Suppose the people in Philadelphia came to the Federal Judge Fullam and said, the local assessor is following improper practices in assessments of real state, favoring some people over others, and thereby inflicting a denial of the equal protection.

And the judge heard all the evidence — was valued at to 25% more than another house that he, the judge concluded was of the same value and that he found 25 or 50 or 1250 illustrations of that.

Do you think the judge would have the power to order the assessor or the country or the municipality to make up a new set of regulations as to how they should go about the assessment of their properties for tax purposes?

Peter Hearn:

Assuming, Mr. Chief Justice that the contention tha the plaintiffs in such a case would make is unconstitutional and I am not prepared that —

Warren E. Burger:

I mean suppose the matter of equal protection.

Peter Hearn:

Then I would submit that the Court could formulate relief which it concluded would most likely to avoid a recurrence of the unconstitutional practice.

Now, certainly the type of order that you contemplate which goes into an entire revision of the process —

Warren E. Burger:

This is very much different from what you have got here, is it?

Peter Hearn:

I believe it is.

I believe this is a very —

Warren E. Burger:

Just to paraphrase them, just to paraphrase them, just to simply say that you have got to improve your procedure for handling assessments of real estate under your statutes substituting real estate for police complaints here.

Peter Hearn:

Well, but of course the specific decree I think is the one that would govern more so than that language I think that that language I think is predicated upon in great part a procedure endorsed in the Yale Law Journal which was cited, I believe, in your dissenting opinion in Allee with respect to allowing the defendants to develop the program to assume their good faith in this situation.

Warren E. Burger:

Sometimes you cite the law review article because we do not endorse it and not because we endorse it.

Peter Hearn:

Well sir, I understood the reference to be approving but I could be incorrect, but the point —

Mr. Hearn may I ask — what we have here, of course, is the final judgment which is appended to the appendix.

Peter Hearn:

Yes sir.

And attached to that is a procedure.

It runs several pages and goes even down to the colors of the various sheets, original, yellow, pink, goldenrod, green, blue.

Who drafted the procedure?

Peter Hearn:

The procedure was drafted by the defendants, the petitioners here initially.

All of that reference to the circulation of various colored documents to the fact that it is a numbered directive.

Peter Hearn:

This says, Directive 127.

Well, the basic you are suggesting that you tell me was submitted by the defendants.

Peter Hearn:

The format sir.

How much was added to this by the judge or by whom?

Peter Hearn:

Then we submitted using their format certain proposed revisions and we expanded the scope of investigation and made certain other procedural of steps along the line, but the all of the great specificity that you are referring to, the fact that we have what, I submit, appears to be something that it is not, and that is a Federal District Judge telling a police department that the goldenrod copy goes to the operations division or something of that sort, that is simply not involved.

This was an effort to —

Well, I gather that this part of his order through —

Peter Hearn:

It is involved in it but this was just like in the school desegregation cases.

This was a plan developed by the people that, I submit, are best able to do it.

William H. Rehnquist:

But the Court ordered – they did not volunteer it.

Peter Hearn:

They did not volunteer but Mr. Justice Rehnquist, I think that this is the most appropriate form of remedy here.

There is some coercion involved when you —

William H. Rehnquist:

Well, the injunction is coercive.

Peter Hearn:

Yes, sir.

That is right, I agree.

When you have a record such as the findings here of unconstitutional activity, I think that it is appropriate and indeed the duty of the Federal District Court to do something, and the question here is did it go about in the least intrusive —

William J. Brennan, Jr.:

Basically, what you are arguing, I take it, is there has been a violation of constitutional rights, equitable remedies therefore indicated, those within the discretion on the first instance of the trial judge, that in this instance, he accepted some suggestions or considerable, I gather, from the defendants as to how they could bring about the kind of remedy that he had in mind.

That was then revised and then he adopted the whole work.

Peter Hearn:

That is correct, Mr. Justice Brennan.

William J. Brennan, Jr.:

And you are saying that was all within the equitable jurisdiction of district judges to fashion remedies whether there has been a finding of violation of constitutional rights.

Peter Hearn:

I agree with that and that is our contention.

Potter Stewart:

I thought, Mr. Hearn you argued — am I mistaken in thinking of the basic decree that is involved in this case is the one that appears from 20-A to 23-A in the Appendix to the petition for the writ of certiorari?

Peter Hearn:

That is correct.

And Mr. Justice Stewart, we have also —

Potter Stewart:

That is the decree, is it not?

Peter Hearn:

That is the decree.

And we have also included in the Appendix the original proposal of the defendants —

Potter Stewart:

As to how they proposed to comply with this decree?

Peter Hearn:

That is right, and then Judge Fullam’s changes to it.

We try to present a record for your consideration as to how the decree evolved, yes, sir?

Potter Stewart:

But, well, I do not ask you again and again, but just tell me if I am wrong in thinking that what appears from 20-A to 23-A in the Appendix is the decree that is involved in this case.

Peter Hearn:

That is correct.

Byron R. White:

What is appendix say in the decree?

Peter Hearn:

It is a part of a decree.

Byron R. White:

Well, then it is from Page 20-A to Page 37-A of the decree.

Peter Hearn:

Oh, I am sorry, that is correct.

I was addressing to its location in the petition for a writ of certiorari, yes that is correct sir.

Potter Stewart:

Where is the petition of cert.

Byron R. White:

The first paragraph is in accordance with Appendix a.

Peter Hearn:

On Page 20-A Mr. Justice Stewart substantially in the form set forth there and nowhere in the decree is there.

A reference to matters that I believe have troubled this Court before such as whether training weaponry or alike are involved or whether there is any kind of violation of questions of comity or a state of criminal procedure, none of this questions are involved here.

Warren E. Burger:

(Inaudible) is it not?

Peter Hearn:

No, sir.

I think it is much less comprehensive, much more limited and restrained that it is —

Warren E. Burger:

But all of that flows from the paragraph which begins with his statement that he has not decided that there is any constitutional right but nevertheless he is going to order them to improve their procedures and then the product of that juridical declaration is a final judgment that is contained from 20 to Page 37-A.

Peter Hearn:

Mr. Chief Justice, I believe he has found that there is a violation, a pattern of violations of constitutional rights which occurred in an unacceptably —

Warren E. Burger:

Except that there is no constitutional right for improved departmental procedures which he then proceeds to order?

Peter Hearn:

He orders it as a remedy, sir.

Not because there is a right to that particular procedure.

There is not, and we contend there is not, just like, and I do refer to the school desegregation cases among others, as situations where courts are faced with the terribly difficult question of trying to have an impact, trying to relieve the violations that it found to occur and do so in the least of intrusive way.

Byron R. White:

In behalf.

Peter Hearn:

In behalf of the plaintiffs and the class that they where represent which is —

Byron R. White:

But the class that (Inaudible) is the class that included those people whose constitutional rights have been violated whether named or not.

Peter Hearn:

The class is all citizens of the City of Philadelphia and the —

Byron R. White:

Whether their constitutional rights have been violated or not.

Peter Hearn:

There was no expressed findings that is limited to those whose rights have been violated but the judge held that violations of rights of the members of this class occur in an unacceptably high number of instances and where likely to recur unless there was the imposition of some appropriate federal remedy.

Warren E. Burger:

Very well, Mr. Hearn.

Peter Hearn:

Thank you, thank you sir.

Warren E. Burger:

Do you have anything further, Mr. Penny?

James M. Penny, Jr.:

Yes sir.

James M. Penny, Jr.:

If it please the Court, I would like to correct a misconception.

The defendants did not come close to drafting the decree or the Appendix to the decree.

What happened was on March 14 of 1973, the District Court entered the opinion, a long opinion which is set out in the printed appendix.

The Court ordered the defendants to submit a program.

Now, the order was unappealable and as the Court recognizes and mentioned several times at various points in the record.

We have objected to the right of the Court on this record to enter any decree but nevertheless we could not appealed on that time and we, in good faith, comply with the Court order.

We submitted a proposal.

That proposal was four pages long and had four pages of forms attached, three pages of schematic designs and the fourth page was a form for the citizen complaint form itself.

So following up on Mr. Justice White’s suggestion that is at least 10 pages, is it not?

James M. Penny, Jr.:

No that is eight pages total.

It is eight pages total, four pages of flowcharts and forms and four pages of a directive.

The Court’s directive is 14 pages long exclusive of any flowcharts and forms, they are not there.

That we had — we submitted something and it was totally unlike what the Court eventually implemented.

I want to address the right versus remedy issue.

This case can be construed in two ways.

Either the Court entered relief because it did determine that the procedures were inadequate and despite what it said about not having a constitutional right to adequacy decided to render them adequate anyhow or the Court decided that the defendants could be held liable despite the Court’s conclusion that they had not violated the Constitution.

In either of those two events, the relief, the remedy is thoroughly improper.

It is either a remedy without a right or it is a remedy where the Court recognizes it does not have a right to question the wisdom of the executive branches of local government.

As for the inadequacy it has been asserted to you that it was only raised in the question of a remedy.

Paragraph 18 of the Goode complaint, inadequacy is alleged, paragraphs 49 to 53, the need for a mandatory injunction in the form of adequate procedures and the right to relief in that form, at Page 21-A, paragraph 2 A and B of their wherefore clause demanding relief, they demand revision on the procedures.

These procedures and the disciplinary procedures did not arise back in 1973 they have been in this case since the beginning, that was the reason this suit was filed.

As far as the analogy with the school desegregation cases in everyone of those cases there is a policy of unconstitutional conduct which is stopped immediately.

To paraphrase one of this Court’s opinions the relief will halt segregation and we will halt it now, and the same with reapportionment cases.

There was nothing equivalent here.

This decree does not enjoin anything other than what the Court deems is inadequate.

We do not know if it is ever going to prevent any unconstitutional conduct because we do not know what the Court is talking about other than something will happen in the future.

There were some question about the meaning of the Court, where the Court said, it is the policy of the department to discourage the filing of such complaints to avoid or minimize their consequences of proven misconduct and to resist disclosure of the final disposition of such complaints.

This was brought up to the Court at the beginning of Mr. Hearn’s remarks stating that that is a policy determination by the Court.

I believe, it seems they are to be somewhat irreconcilable, yes, irreconcilable with paragraph three of the findings as you pointed out Mr. Chief Justice.

But if you turn to Page 128-A of the appendix, it is explained that what the Court is talking about there is that policies of the department, meaning the procedures of the department had the result of minimizing and discouraging the complaints.

James M. Penny, Jr.:

Their complaints are handled on a “Chain Of Command basis” and these results in the tendency to minimize and discourage complaints.

So when the Court said that – talking about the policy to minimize complaints, it was not talking about a willful policy in the part of the department to discourage complaints, but it was talking about was the end result of the duly authorized departmental policies.

Finally, Mr. Hearn’s remarks mention that the effected decree is actually very mild, and he says, if we want to change or if we cannot leave with it, well we can go back to the Court.

Well, we should not have to go back to Court.

A mandatory injunction is always harsh.

It is the most extraordinary form of judicial remedy, and in this case, it results in the District Court taking power to itself which the statutes of Pennsylvania place elsewhere.

Lewis F. Powell, Jr.:

Mr. Penny, may I ask you a question about the decree?

As I read it whenever a complaint is filed resulting in disputed facts, then an adversary hearing is then require?

James M. Penny, Jr.:

Yes Your Honor I believe — well, first of all this only goes to complaints which do not allege a criminal conduct.

If the complaint alleges criminal conduct, it is elsewhere, and when I say criminal conduct I am not sure if the judge intended to subsume federal criminal conduct which may take this case out of all civil rights violations also.

But wherein a non-frivolous, non-criminal complaint there is a factual dispute.

The case is supposed to be moved to a substantially altered police board of inquiry, which is to conduct hearings for the purpose of resolving the issues and determining the liability of the officers.

Lewis F. Powell, Jr.:

And that is an adversary proceeding as I judge with counsel the right to examine, cross-examine witnesses (Voice Overlap).

James M. Penny, Jr.:

Yes, Your Honor.

The complainant has the right to be represented by counsel to cross examine the police officers.

There is a stenographic record taken, and it is available to any complainant so long as he averse a case where there is a factual dispute.

Lewis F. Powell, Jr.:

Is that new procedure in Philadelphia?

James M. Penny, Jr.:

Very new Your Honor.

What the Court has done here, and I tried to point this out in the brief, is create a system which is a mere image of a court.

The police department’s regulations are designed to — or disciplinary regulations are designed to go at violations of police regulations.

They were never designed to provide an open forum for people who have complaints about the police department.

It is a disciplinary tool and it involves the police officer and his relation to the department.

Under the existing procedures the complainant has no right to counsel, he has no right to demand a hearing, and he has no right to accuse or to confront the accused in the present situation.

Though, I believe he does have this right under the Court’s decree.

Warren E. Burger:

Under the decree, would the policeman still be entitled to assert Fifth Amendment rights or is that gone too?

James M. Penny, Jr.:

I do not imagine that Judge Fullam would require the waiver of the Fifth Amendment rights.

It does present a severe hardship to the police officer who is, on the one hand, a defendant in a civil suit for damages, and on the other hand, must submit to this procedure within the police department and this procedure contemplated by Judge Fullam.

Warren E. Burger:

In all seriousness, I supposed his answers would be admissible against him in a civil suit for —

James M. Penny, Jr.:

That is precisely my point Your Honor, because there is a stenographic record taken and he would be testifying under oath.

I think it is the best form of discovery available for any civil rights plaintiff.

James M. Penny, Jr.:

He has to file the complaint and go to the department and get everything he wants.

It certainly puts the department or the police officer to severe disadvantage in the subsequent civil rights suit for damages. One further point Mr. Chief Justice with your example regarding the assessors, this relief goes far further because with at least the assessors you have a finite number of homes.

There is only a certain number of properties to assess and there is only a certain number of problems that could arise, but with the police department there is literally an almost infinite number of chances for something to occur.

I think the scope of this is far beyond your example of the assessors and this is an extremely, extremely substantial interference with the rights of the police department on the rights of the defendant of city officials here where the Court has refused to find that they have violated anyone’s constitutional rights and repeats that, says that twice during its opinion.

I thank you, Your Honors.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.