UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia.
Bazelon, Chief Judge, and McGowan and Robinson, Circuit Judges. Bazelon, Chief Judge, concurring in part and dissenting in part.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON
For the third time in four years we are confronted with an appeal in litigation commenced more than five years ago to prevent District of Columbia police from interfering with appellant's nocturnal strolls on public thoroughfares in the city. *fn1 Now for the third time, we are compelled to adjudicate the appeal without achieving a full resolution of appellant's grievances on the merits. And for the third time we find that we must remand the case to the District Court to enable further proceedings there. I
Appellant's lengthy odyssey through the courts was precipitated in 1967 when he was twice stopped and questioned by police officers while walking in the vicinity of Dupont Circle late at night. On both occasions the officers filled out so-called vagrancy observation forms *fn2 and informed appellant that if he was further observed in the area he would become subject to arrest. *fn3 Appellant sought legal advice and subsequently commenced suit in the District Court for declaratory and injunctive relief. He sought specifically a declaration of his right to walk or be in public places while sober and well-behaved, and an injunction restraining police intrusion upon that right. He also sought expunction from police records of the vagrancy observations which had been made and a declaration that the District's general vagrancy statute *fn4 was unconstitutional in toto.
The District Court, sua sponte, dismissed the action on several grounds. On the first appeal, we vacated the dismissal and remanded to the District Court for further proceedings. *fn5 On the remand, the District Court again dismissed on the ground that the case was rendered moot by our intervening decision in Ricks v. District of Columbia (Ricks I),6 wherein we held three subsections of the general vagrancy law unconstitutionally vague, and by the discontinuance of police observations under the impugned subsections in response to that decision.7 On the second appeal, we vacated that dismissal and remanded for the proceedings we had envisioned on the first.8
The case was then heard on the merits, and appellant was awarded a part of the relief sought in his complaint. The District Court's order enjoins the police from interfering with appellant's right to walk or be in any place in the District of Columbia while sober and well-behaved, and requires elimination from police records of all references to the vagrancy observations made of him.9 Since there is no appeal from so much of the District Court's action, we have no occasion to examine its propriety.10 Appellant now attacks the court's order because in some respects the relief it afforded fell short of the goals set by his complaint.
Two errors are alleged: first, that the District Court should have treated the case as a class action and granted relief accordingly; and second, that the court should have held unconstitutional the subsections of the vagrancy statute which were not in issue in Ricks I. For reasons now to be stated, we are unable to decide either of these questions, but instead must remand the case to the District Court once again. II
In the five years which have elapsed since this litigation began, both the law and police policies governing on-the-street stopping and questioning of citizens have undergone substantial modification. Ricks I invalidated portions of the District's general vagrancy statute11 and its companion, Ricks v. United States (Ricks II),12 portions of the District's narcotic vagrancy statute.13 Since these decisions, a plethora of police regulations pertaining to street investigations have been issued.14 Among them are traffic and pedestrian "spot check" procedures, which appellant contends are merely the old vagrancy observation measures in new guise.15
In May, 1968, the Supreme Court addressed the problems raised by police investigatory stops and accompanying searches in Terry v. Ohio16 and related cases,17 and established standards to harmonize on-street inquiries and protective frisks with the Fourth Amendment.18 In response to Terry, the Metropolitan Police Department has issued a nine-page set of guidelines to assist its officers in complying with the constitutionally-mandated requirements.19 And more recently this court, in Hall v. United States20 and Long v. District of Columbia,21 has dealt with claims of unlawful police interference with the prerogatives of citizens to carry on their activities in public places undisturbed.22
It is against this backdrop of changing law and practice that appellant has here renewed his request for class-action relief and a declaration of unconstitutionality of the remaining sections of the general vagrancy statute. But the record before us is bottomed solely on two incidents which occurred more than five years ago in the milieu of legislative and administrative policy of that day. Given the massive developments intervening since appellant experienced the difficulties alleged in his complaint, we cannot base the determinations he seeks on such a thin foundation. Two episodes of such vintage hardly generate, simply on their own, a realistic prospect of future repetition, either as to appellant or others. Quite plainly, they do not suffice as a predicate for an injunction in favor of a class.23 Even more speculative, in view of current police practices claiming newer sources of authorization, is any potential link between the general vagrancy statute and any further difficulties which appellant or others may encounter. Neither the District Court nor this court is at liberty to decide constitutional questions posed hypothetically.24 Such decisions, rather, are to be rested upon a record which supplies factual support far more adequately than the one now before us does.25
Nevertheless, in the midst of all the change in the law and its implementation by police, one circumstance allegedly remains unaltered. Appellant asserts that he is still a target of police harassment while taking his walks at night. At oral argument his counsel informed us that since the District Court issued its last order, there have been two occasions on which he was stopped and interrogated by police,26 and that on at least one of these a written notation of the incident was made by the officers.27 In support of his plea for a greater measure of relief than he was awarded in the District Court, appellant has presented to this court a third-party affidavit alleging that other citizens have been subjected in recent months to detention and questioning on the streets.28 On the heels of these charges is a disturbing concession by appellees' counsel that the present police spot-check procedures permit citizens to be halted and quizzed even in circumstances under which Terry does not purport to authorize intrusion.
Since this new information was brought to light after this case had left the District Court, it is outside the record on appeal. We think, however, that it constitutes enough of a showing to entitle appellant to an opportunity to update his lawsuit as a predicate for possible further relief. As a part of our appellate jurisdiction, we are empowered to "remand the cause and . . . require such further proceedings to be had as may be just under the circumstances."29 This broad authorization clearly encompasses remands for the purpose of renovating the pleadings30 and taking additional evidence;31 and, once appellant is again in the District Court, he will be free to appropriately supplement his complaint.32 That may include allegation of recent incidents,33 joinder of additional parties34 and, of course, presentation of such legal contentions as may be indicated. After suitable response by appellees,35 the District Court will be in position to hear any meritorious claims forthcoming, and to expeditiously resolve them -- individually or as a class -- on a concrete basis.
We are mindful of the hardships imposed on parties where, as here, the wheels of justice grind so slowly that they may appear to hardly turn at all. Justice that is both swift and sure is the millennium and must remain increasingly the goal of us all. Yet it sometimes happens, however regrettably, that speed in adjudication must to some extent yield to quality of adjudication. The case before us demands such a yielding to enable a sound evaluation of appellant's contentions in the context of current police investigatory methods and their precise impact upon him and others. To that end we must remand the case to the District Court for further proceedings. Of course, it is for appellant to determine the tactical course he wishes to pursue, and we intimate no view on the merits of any controversy ensuing.36 III
One other aspect of this litigation merits discussion. The power of the District Court to entertain appellant's suit has not been challenged, but the jurisdictional foundation upon which the court proceeded is unclear. Of three bases averred in appellant's complaint,37 one is inefficacious,38 another is unsustained39 and the third, though serviceable in this litigation, is no longer available to would-be litigants.40 The record contains no express jurisdictional determination nor does it indicate that, beyond the jurisdictional grounds alleged in the complaint and contested in appellees' answer, the parties have addressed the question. Since the jurisdiction of a federal court is an ever-present concern,41 the problem deserves more attention than it has received.42
We put aside at once appellant's claim of jurisdiction under 28 U.S.C. 1343(3).43 Evidently appellant has theorized that the incidents he complained of gave rise to a cause of action under 42 U.S.C. § 198344 which was cognizable in the District Court by virtue of Section 1343(3). But very recently, in District of Columbia v. Carter,45 the Supreme Court held that no right to sue under Section 1983 is generated by action of the District of Columbia or its representatives. Our reading of Carter in light of the common origin and objectives of the two sections convinces us that Section 1343(3) does not furnish a federal forum for the case at bar.46
We look next to 28 U.S.C. § 1331(a) -- the general federal-question provision -- which vests in the district courts jurisdiction of civil actions in which the matter in controversy "arises under the Constitution, laws, or treaties of the United States" and exceeds $10,000 in principal "sum or value."47 We are satisfied that appellant's complaint spelled out a controversy arising under the Constitution,48 and consequently that Section 1331(a) conferred jurisdiction if the required amount were involved.49 Our difficulty, however, is that on the record before us we cannot be sure that the amount prerequisite was really at stake. To be sure, appellant formally alleged that the amount in controversy exceeded the statutory minimum, but appellees denied that allegation in their answer and the matter was ...