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03/23/73 Manual De J. Gomez Et Al., v. Jerry V. Wilson


March 23, 1973







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.


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 dropped at that point. The record is barren of any further effort by the parties to either establish or disestablish this jurisdictional element, and of any determination by the District Court on that score.

Where the call for federal-question jurisdiction under Section 1331(a) is meritorious, the task of demonstrating the propriety of the invocation is not particularly onerous. The complaint need only show that in good faith he advances a non-frivolous claim necessitating an application of federal law50 and having a value meeting the statutory specifications.51 When the action solicits damages, the amount sued for is deemed to have been fixed in good faith so long as it is not clear to a legal certainty that no recovery could satisfy the statutory standard.52 Somewhat more is demanded when an injunction or other equitable relief is sought, though hardly more than the definitive valuation which a clear-cut presentation would entail.53 But when, as here, a formal allegation of jurisdictional amount -- albeit one sufficient from a pleading standpoint -- is controverted, a factual issue emerges54 and the burden of establishing jurisdictional amount is thrust upon the claimant.55 We do not doubt the amenability of the right asserted by appellant to pecuniary valuation of a type acceptable for purposes of Section 1331(a).56 The trouble here is that the demonstration which appellant was summoned to make is nowhere to be found in the record.57

We do find, however, an adequate jurisdictional base, irrespective of the amount truly in controversy, in the provisions of D.C. Code 11-521(a)(1) which were in force when appellant's suit was instituted in the District Court.58 Those provisions gave the District Court "original jurisdiction of all . . . civil actions between parties, where either or both of them are resident or found within the District," save where "exclusive jurisdiction is conferred by law upon other courts in the District."59 The record shows amply the required residency, and we think the exclusivity requirement was met also.

We are mindful that, when appellant brought his suit, the District of Columbia Court of General Sessions60 possessed "exclusive jurisdiction of civil actions . . . in which the claimed value of personal property or the debt or damages claimed does not exceed the sum of $10,000, exclusive of interest and costs."61 That does not affect the conclusion we reach because appellant's goal was equitable relief of a type which the Court of General Sessions could not award. While that court undoubtedly possessed some equitable powers,62 it has long been settled that they were confined to controversies which fell within its statutory grant of jurisdiction.63 So, although the Court of General Sessions had such equitable powers as were necessary to enable it to fully exercise the jurisdiction conferred,64 those powers were incidental and limited to just that, and not primary or more general than the exigencies of the jurisdictional exercise required.65

Appellant did not seek recovery of any "personal property or" any "debt or damages.,"66 He sued, rather, for declaratory and injunctive relief to protect a fundamental personal right. It is clear that the Court of General Sessions lacked authority to entertain that suit67 and that, by the same token, the District Court acquired jurisdiction under Section 11-521(a)(1)68 when the complaint was filed. And notwithstanding the subsequent repeal of that section,69 the jurisdiction it conferred over this litigation subsists today.70

The case is remanded to the District Court for such further proceedings in harmony with this opinion as appellant may be inclined to initiate.

So ordered.


BAZELON, Chief Judge concurring in part and dissenting in part:

I agree that this case should be remanded for further proceedings. But, I object to the court's apparent failure to recognize our obligation to seek the earliest possible resolution of this more than five year old law suit by providing some guidance for the District Court's consideration. Otherwise, the delay may take its toll in the deprivation of basic constitutional rights, the exacerbation of friction between the police and the ghetto community, and the loss of the courts' credibility. I

There is clearly substantial evidence to support the District Court's finding that "presently vagrancy observations [the police practice originally complained of] result from 'spot check' observations forms."1 The court today does not say otherwise; it accepts the District Court's findings as "impregnable" because not challenged on appeal. The history of the "spot check" procedure makes it quite clear that it is but the vagrancy observation of old, with name and form number changed, but the same unconstitutional standard.

In response to this court's Ricks decisions,2 the police department issued the so-called Layton memorandum of February 17, 1969. That document, dealing in part with vagrancy observations, said:

. . . The arrest policies announced herein do not preclude an officer from observing persons engaged in suspicious activity in a public place and from approaching those persons and making inquiry. . . . In those circumstances where a person refuses to identify himself or does not give a reasonable explanation of his conduct, the officer should make an accurate and detailed record of the person's physical description and other significant characteristics, clothing worn and the explanations furnished. (emphasis added)3

The "spot check," in contrast, began its existence as a traffic enforcement device, to be employed with a view towards "detecting persons operating without a valid driving license."4 However, after the Supreme Court decided Terry v. Ohio,5 the "spot check" underwent a major transformation in both purpose and scope. The new purpose was described in police department communications as follows:

Effective use of this new PD 725 spot check form in recording suspicious persons . . . in our area can be an invaluable aid in assisting in this District's effort to control crime and identify and apprehend offenders. *fn6

Another police communication, certainly reminiscent of the Layton memorandum, further explains the expanded use of spot checks:

The traffic check form currently in use shall also be used for stopping and checking suspicious persons on foot. Members shall take the person's name, nickname, date of birth, address, location of stop, general physical description and description of clothing worn. (emphasis added) *fn7

Most importantly, the spot check procedure authorized the stopping of pedestrians under the same vague standard -- mere "suspicion" -- as the earlier vagrancy observations. It seems clear that spot checks are but another way of implementing the policy of the Layton memorandum. *fn8 II

The District Court correctly determined that spot checks are an unconstitutional police practice, a conclusion the court today characterizes as "impregnable". The District Judge properly rejected the Government's assertion that because a person who is stopped has an unspoken right to continue walking and ignore a policeman's inquiries, he has not been seized. The memoranda describing the practice themselves cast doubt on the accuracy of the government's suggestion. And the Supreme Court in Terry held that the stop stage of an encounter is coextensive with a seizure, hence within the purview of the 4th Amendment.

It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person. *fn9

As the trial judge perceptively observed, when a policeman stops and questions a person, the officer's "uniform, badge and all other indicia of his power as a law enforcement authority" compel an obedient response. The person is surely "restrained."

In Terry and related cases *fn10 the Court also carefully defined by what standards a police officer's intrusion on an ordinary citizen's privacy would be constitutionally permissible. Those cases held that an officer must "be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." *fn11 In contrast, spot check stops are authorized on mere suspicion.

The Supreme Court of Pennsylvania recently struck down that state's similar vehicle spot check procedure. Although noting that such stops may serve a law enforcement purpose, the court declared them unconstitutional under the Terry test. The court warned that if the police were allowed to stop automobiles without being able to "point to specific and articulable facts", they could intrude on "basic constitutional rights on the basis of subjective prejudices." *fn12

The government admitted at oral argument in this case that the spot check does not meet Terry standards. Accordingly, the District Court properly found that police interferences with the appellant's late night walks pursuant to a mere "suspicion " standard were unconstitutional and the court's injunction restrained the police from stopping Gomez under the guise of either a vagrancy observation or spot check. *fn13 III

I turn now to the question of remedy. We have said that the District Court found Gomez had been the victim of unconstitutional police action. The question that court must face on remand is whether this conduct is sufficiently widespread to sustain class action relief.

It is important to note that we are not here faced with the mere assertion of a solitary isolated incident, as we were in Long v. District of Columbia, where the court observed:

In [Gomez] there was an official, publicly adopted policy . . . under attack. There was no question that the procedures objected to occurred regularly and would occur again in the future. *fn14

The President's 1967 Crime Commission suggested that the courts recognize "the importance of the administrative policymaking function of [the] police" and "take appropriate steps to make this a process which is . . . articulate and responsive to external controls appropriate in a democratic society." *fn15 Likening the police policymaking function to that of an administrative agency, the Commission called on the courts to develop judicial remedies that would "require the law enforcement agency to articulate its policy and to defend it, and if the challenge is successful to change the policy." *fn16 The Commission specifically referred to the need for such an articulation and review of police policies about street investigative stops. *fn17

The American Bar Association has also focused on the need for providing positive guidance to the police, "rather than concentrating solely on penalizing improper police conduct," *fn18 as by application of the exclusionary rule. *fn19 The ABA Report specifically approved of "injunctive actions to terminate a pattern of unlawful conduct." *fn20

The class action injunctive suit is one means by which the police can be required to identify, articulate, and defend, as well as be afforded an opportunity to change, their official policies and practices. The class action, by its very nature, focuses on the broad policy rather than the individual incident. Hence, it provides the kind of positive guidance suggested by the ABA and the kind of remedy called for by the Crime Commission. But, it can only be a workable remedy if there is not an intolerable burden on a petitioner to demonstrate the widespread scope of application of an articulated police policy. *fn21 It is illogical, if not irrational, to require a plaintiff to establish that the five thousand men and women of the Metropolitan Police Department are doing what they have been instructed to do. Rather, where a petitioner shows that a police practice, as described in official communications or regulations, is unconstitutional, the burden of going forward should shift to the police on the question of whether the application of the practice is widespread. IV

The already lengthy history of this litigation indicates that it may yet be far from over. As to the interim period, the record suggests the propriety of a preliminary injunction against spot checks not meeting Terry standards. The appellant has not requested relief pendente lite; but, on remand, the District Court may properly entertain a petition for such relief. The requirements are as follows:

1) the party in whose favor the relief is to run must make a strong showing that he is likely to ultimately prevail on the merits;

2) there must be a danger of irreparable injury;

3) to be balanced against the extent to which the relief would harm the other party; and

4) the court must determine where lies the public interest. *fn22

As to the likelihood of appellant's success on the merits, it is already clear that the spot check procedure does not meet the test articulated in Terry. The issue on remand is the proper scope of relief. The official police documents describing spot checks and the affidavits of the appellant and other citizens who have been subjected to unlawful street stops and interrogations, *fn23 if accurate, would support the conclusion that the spot check procedure is sufficiently widespread to justify an injunction in favor of the class suggested by appellant. But those affidavits were not before the District Court nor were they properly before this court.

The District Court should also consider to what extent its limited relief has been effective to protect the appellant. Evidence has been proffered to us that the appellant himself has been stopped twice more since the entry of that order. *fn24 Thus the question arises whether the rights of appellant or any individual can be adequately protected without protecting those of the public generally. It is hardly likely that the appellant is the only person being stopped and interrogated pursuant to the unconstitutional spot check procedures. "Once [an unconstitutional practice] is found, . . . the court must order . . . it discontinued [and its] decree may not -- either expressly or impliedly -- authorize [its continuation] against others." *fn25

The District Court will also have to determine whether there is a danger of immediate and irreparable injury. It may find that if preliminary relief is not granted, no protection will be afforded the public from these unconstitutional street stops pending this litigation *fn26 -- since whatever permanent injunctive or declaratory relief is ultimately granted will have only prospective effect. The court could thus measure the cost of its delay in terms of the infringements on the constitutional rights of all those citizens who, in the months or years before this case reaches its long overdue conclusion, will be illegally detained by the police. The value of the resultant loss of constitutional rights is neither easily measurable nor, as a practical matter, fully compensable in dollars and cents. *fn27

The court may not ignore what might be lost by the government should a preliminary injunction issue. Courts certainly should not involve themselves unnecessarily in police matters and should consider the degree to which proper activity and discretion may be curtailed by the preliminary relief. But if unconstitutional street stops are widespread, the police would properly be enjoined from undertaking them at all in the future. And if spot checks not meeting Terry standards are not widespread, what is lost by a narrowly drawn order restraining an uncommon practice?

The final element to be weighed by the District Court is the public interest. In this inquiry, I do not think the court can ignore who the appellant and his lawyer are. The appellant is a poor man and a member of a racial minority. The President's 1967 Crime Commission observed that police field interrogations are directed predominantly at and often conducted indiscriminately among that very class of citizens. As a result, the Commission warned, street stops are a major source of friction between police and minority groups, creating resentment of the police in the urban ghettos. *fn28 It would surely seem in the public interest to minimize such friction by at least insuring that street stops are carried out in a way consonant with Constitutional guarantees. *fn29 V

The guarantees of the Constitution exist for all men, rich and poor alike. But to say that such rights exist for all men is only meaningful if both rich and poor have the means to secure them. Since appellant is a poor man, he could not himself afford the crippling cost of this extended litigation. He would not be before the courts today were it not for the voluntary representation of the American Civil Liberties Union, whose resources, it now appears, may be insufficient for the burdens imposed by the courts. *fn30 The court has a moral as well as a legal obligation to be mindful of these matters *fn31 in considering this case.

Nonetheless, the court today is sending appellant back to the District Court once more without meaningful relief and without any guidelines for that court's consideration of an appropriate remedy. The court is, in effect, sending appellant back down to the bottom of the hill that he began climbing five long years ago, and instructing him to begin anew. In my view, the District Court should be instructed on remand to consider the affidavits presented to us, as well as other matters, *fn32 in accordance with some guidance from us for the determination of appropriate interim relief. VI

The complaint in this case has been before the courts for more than five years. The police have been defending on the ground that their spot check procedure is proper. It may then well be that they have been engaging in that practice every day, all day long, while the complaint is unresolved. Since we piously refrain from expediting the solution, we are part of the problem. What credibility do we then have in urging the victims of police misconduct to rely on the courts -- not on the streets -- to redress their grievances?

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