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October 30, 1979

CITY OF PHILADELPHIA; Frank L. Rizzo, Mayor of Philadelphia; Hillel S. Levinson, Manging Director; Marvin E. Aronson, M.D., Medical Examiner, Irvin R. Davis, Director of Finance; Joseph F. O'Neill, Police Commissioner; Harry G. Fox, Deputy Police Commissioner; Morton B. Solomon, Deputy Police Commissioner; Frank A. Scafidi, Chief Inspector of the Philadelphia Police Department; Richard Bridgeford, Chief Inspector of the Philadlephia Police Department; Joseph Golden, Chief Inspetor of the Philadelphia Police Department; Robert Wolfinger, Chief Inspector of the Philadelphia Police Department; James Herron, Chief Inspector of the Philadelphia Police Department; John McHugh, Chief Inspector of the Philadelphia Police Department; Ferdinand Spiewak, Chief Inspector of the Philadelphia Police Department; Gregore Sambor, Chief Inspector of the Philadlephia Police Department; Edwin S. Parker, Chief Inspector of the Philadelphia Police Department; William Devlin, Chief Inspector of the Philadelphia Police Department; John Craig, Chief Inspector of the Philadelphia Police Department; David Cordivari, Captain of the Philadelphia Police Department; Edmund Lyons, Superintendent of Prisons.

The opinion of the court was delivered by: DITTER

The complaint alleges that there exists a pervasive pattern of police abuse in Philadelphia, the effect of which is to deny basic federal constitutional rights to persons of all races, colors, and national origins. This abuse is said to consist of such practices as, for example, using deadly force where it is unnecessary, physically abusing arrestees and prisoners, extracting information and confessions by means of physical brutality, stopping persons without probable cause, and conducting illegal searches and seizures. Moreover, the plaintiff charges that the police department actually facilitates these abusive practices by maintaining policies and procedures which thwart the investigation of complaints and shield the officers involved from any kind of discipline or scrutiny. Thus, for example, it is alleged that the department fragments abuse investigations, suppresses evidence that inculpates police officers, accepts implausible explanations of abusive conduct, harasses complainants and witnesses, and prematurely terminates investigations of police brutality.

 The government also charges that some or all of the individual defendants are personally responsible for promulgating and perpetuating these practices in furtherance of a deliberate effort to foster, as well as to condone, the intrusion upon civil rights by police officers.

 Finally, the complaint alleges that while police abuse in Philadelphia is visited to some extent on all segments of the population, it has a disproportionately severe impact on black and Hispanic persons. This case, therefore, also contains an aspect of racial discrimination.

 In their answer to the complaint, the defendants raised the question of the Attorney General's standing to maintain this lawsuit. On my order, the parties addressed the standing issue in extensive briefs, the quality of which was exceptional. After considering these briefs at great length and after my own research, I conclude that there exists no authority, express or implied, for the bringing of this lawsuit. Rather, I hold that the Attorney General has no standing before this court when he seeks to advance the civil rights of third persons, absent an express grant of the necessary power by an Act of Congress. This complaint, therefore, must be dismissed without ever testing the merits of its deeply serious charges. *fn1"

 By the filing of this complaint, the Attorney General seeks to obtain broad equitable relief, the effect of which would be to alter the structure and the administration of a major municipal police force. I am told that this sweeping relief is necessary because the present policies and procedures of that police force violate the Constitution and the civil rights laws of the United States. The present issue is whether the Attorney General has the power to maintain such a lawsuit. Surely, the discussion must begin with the history of the attempts in Congress to grant powers of this type to the Attorney General by express statutory enactment. Of overwhelming significance to this case is the fact that on three separate occasions, these attempts have failed.

 In an Executive Communication dated April 9, 1956, then Attorney General Herbert Brownell addressed what he viewed as a deficiency in the available means for enforcing 42 U.S.C. § 1985. That section, of course, attempts to provide relief from conspiracies to interfere with constitutional rights. Mr. Brownell pointed out that under the terms of the statute, such conspiracies "can be redressed only by a civil suit by the individual injured thereby." He urged the Congress, therefore, to consider "a proposal authorizing the Attorney General to initiate civil action where necessary to protect the rights secured by that statute." H.R.Rep. No. 291, 85th Cong., 1st Sess., Reprinted in (1957) U.S.Code Cong. & Admin.News, pp. 1966, 1978, 1980.

 Attorney General Brownell's suggestion was incorporated in the proposed Title III of the Civil Rights Act of 1957, which began in Congress as bill No. H.R. 6127. A majority of the House Judiciary Committee recommended approval of this legislation, including Title III. As proposed, the bill "amends existing law so as to permit the Federal Government to seek from the civil courts preventive or other necessary relief in civil-rights cases." H.R.Rep No. 291, supra, at 1966. It "provides that the Attorney General may institute for the United States or in the name of the United States a civil action for preventive relief whenever a person has committed any acts or practices which would give rise to a cause of action under the existing law as contained in section 1985." Id. at 1974. Moreover, the committee majority noted that the proposed amendment "authorizes the Attorney General to institute an action whenever any persons are about to engage in those acts and practices" which would violate the statute, thus clearly demonstrating that Title III contemplated suits for injunctive relief. Id. at 1975.

 Finally, the report was careful to point out that, as proposed, Title III would not create any new rights. Rather, the bill created "a New remedy" (emphasis added), because its effect was "to provide the Attorney General with the right to bring a civil action . . . to prevent acts or practices" which would violate section 1985. Id. It is evident, therefore, that in the minds of Title III's authors, this remedy did not previously exist.

 Not all the members of the House Judiciary Committee joined in hailing the proposed amendments. The minority report on H.R. 6127 described Title III's provisions as "truly shocking." At the heart of the objections was the "blanket authority to institute civil actions" which the new law would confer upon the Attorney General, thereby endowing him "with the privilege of setting up law through injunction." H.R.Rep. No. 291, supra, at 2001.

 Finally, the minority concluded their condemnation of Title III with a fearful prediction: "Armed with the powers that this bill would expressly confer, a politically minded Attorney General, in combination with an unreasonable Federal district judge, could terrorize the people in any community. No Attorney General should ever seek such powers and Congress ought never to grant them." Id. at 2015.

 The concerns raised by the committee minority in the House were echoed loudly when the bill reached the floor of the Senate. Many senators decried the federal intrusion upon local authority that Title III would permit. Thus, Senator Kefauver expressed his opposition by stating that "(t)he Federal Government cannot take it upon itself to referee the police forces and the sheriff's officers of every county and locality in the nation." 103 Cong.Rec. 12530 (1957). Rather, the Senator felt that federal supervision need not extend beyond assurance of the right to vote. "A sheriff who practices brutality for racial reasons will not long remain in office." Id. Similarly, Senator Saltonstall condemned "the use of compelling force by the Federal Government" in what he termed "direct interference with home rule, local administration and state administration." Id. at 12541. In the same vein, Senator Hickenlooper proclaimed his opposition to Title III because it represented "a long step toward the further concentration of autocratic and bureaucratic authority in the central Government at Washington." Id. at 12549.

 After much debate, the opposition prevailed, Title III was deleted, id. at 12565, and the bill was approved by the Senate, minus the controversial amendment to 42 U.S.C. § 1985. Id. at 13900. Thereafter, the House agreed, and similarly approved H.R. 6127 without the provisions of Title III. Id. at 16112-13. With President Eisenhower's signature, the bill became the Civil Rights Act of 1957, Pub.L. No. 85-315, 71 Stat. 634 (1957). The much disputed Title III had failed to become law. *fn3"

 An attempt to resurrect Title III was made in 1960. The resulting storm of protest on the floor of the Senate is best illustrated by the remarks of Senator Ervin. He said that this law would "destroy the states of the union" because it would give the Attorney General "the arbitrary power to supervise the actions of states, the actions of cities, the actions of towns, the actions of counties." The Senator went on to state that while he opposed such power in the hands of any official, he found it particularly offensive in the Attorney General, "for not only is he a government officer, but he is also, in every case of which I've ever heard, a politician." Under Title III, "the Attorney General could virtually convert Federal district courts into administrative branches of the executive department of the Federal Government." *fn4" Finally, the Senator capped his protests with some disconcerting predictions:

If the occupant of this office should happen to be a pragmatic politician, or a so-called civil rights zealot, or a person susceptible to coercion by pressure groups, he could employ part III as an intimidating club, and thereby control or demoralize State and local governments. . . .
The State or local official could do one of three things. He could submit to the threat, and thus permit a Federal officer to dictate how the functions of a State or local office are to be discharged. He could relinquish his State or local office, and thus escape further harassment and hazard. And, finally, he could stand up and fight for his convictions, even to the point of defending a lawsuit in a Federal district court.

 106 Cong.Rec. 5160.61 (1960). *fn5"

 Meanwhile, the attempt to revive Title III made little progress in the House. Although a subcommittee recommended approval of this legislation as part of the pending Civil Rights Act, the full Judiciary Committee deleted Title III in its entirety. H.R.Rep. No. 956, 86th Cong., 2d Sess., Reprinted in (1960) U.S.Code Cong. & Admin.News, pp. 1925, 1939, 1957. When the Civil Rights Act of 1960 became law, it contained no remnant of the powers that Title III would have vested in the Attorney General. See Pub.L. 86-449, 74 Stat. 86 (1960).

 The proponents of Title III tried to revive the passage of its provisions once again in 1964. This attempt, too, was short-lived. See H.R.Rep. No. 914, 88th Cong., 2d Sess., Reprinted in (1964) U.S.Code Cong. & Admin.News, pp. 2355, 2391, 2411. The law that finally became the now-celebrated Civil Rights Act of 1964 did broaden somewhat the Attorney General's authority to initiate suit, but this was limited to instances of infringement on certain specified rights, such as employment or voting. The Act contained no broad grant of authority to sue for enforcement of the civil rights laws. See Pub.L. 88-352, 78 Stat. 241 (1964).

 This legislative history cannot be ignored when considering the standing of the Attorney General to bring the present lawsuit. The complaint in this case prays for extremely broad injunctive relief against local officials whose duty it is to administer a municipal police department. The stated ground for this relief is the allegation that by their policies and practices, the defendants are violating the civil rights laws of the United States. The Attorney General would thus have me enter an injunction substituting his views for those of the defendants as to how the Philadelphia Police Department should be run. It is clear to me, therefore, that by filing this complaint, the Attorney General is attempting to exercise the very power which the Congressional opponents of Title III relied upon in defeating that legislation. The defendants argue that I cannot recognize a power which Congress has thrice refused to grant. I find this position to be entirely persuasive.

 The legislative history discussed above has been relied upon by the Courts of Appeals for the Fourth and Ninth Circuits in rejecting the Attorney General's claims of standing to sue. In United States v. Mattson, 600 F.2d 1295 (9th Cir. 1979), the Attorney General brought suit against a state facility for mentally retarded persons, alleging that the institution maintained unsafe and unsanitary conditions, resulting in injuries and death. The complaint charged that these conditions violated the civil rights secured for the patients of the institution by the eighth, thirteenth, and fourteenth amendments to the Constitution. The plaintiff sought injunctive relief.

 After holding that Congress had not expressly authorized the suit, *fn6" the court of appeals went on to consider whether the federal government "has some interest that can be construed to warrant an implicit grant of authority." 600 F.2d at 1298. One of the principal factors persuading the court that no such implied authorization existed was "the repeated failure of Congress to authorize such suits." Id. at 1299. The panel made special note of the fact that the Civil Rights Act amendment rejected by Congress in 1964 would presumably have authorized the very suit which the Attorney General was attempting to prosecute. The court pointed out that the amendment failed because it would vest the Attorney General " "with broad discretion in matters of great political and social concern.' " Id. at 1300, quoting H.R.Rep. No. 914, 88th Cong., 2d Sess., Reprinted in (1964) U.S.Code Cong. & Admin.News, pp. 2391, 2450.

 The same holding was reached in United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977). Like Mattson, the Solomon case concerned an attempt by the Attorney General to obtain injunctive relief against a state hospital for the mentally retarded. After refusing to find express authorization for the suit, the court also declined to find implicit authority. In so holding, the court said: "It is significant that several attempts extending over a period of twenty years to enact legislation empowering the Attorney General to bring the type of action represented by the instant case have failed of enactment." 563 F.2d at 1125, n. 4.

 Despite these authorities, however, the Attorney General argues that the legislative history of Title III should not be read as depriving him of standing to sue for enforcement of the civil rights laws. On the contrary, plaintiff suggests that the legislative history is irrelevant to the issue now before me. He submits that in reaching the opposite result, Mattson and Solomon misconstrued the actions of Congress. He contends that both cases were "incorrectly decided" and he asks me not to follow them. *fn7"

 In support of his argument, the plaintiff points out that the Title III legislation proposed in 1957 and 1960 would only have given the Attorney General authority to enforce by civil suit the provisions of 42 U.S.C. § 1985. That statute, of course, deals only with Conspiracies to violate civil rights. Thus, the plaintiff submits that Congress' failure to enact Title III was a narrow and limited action. He argues that this action should have no bearing on the Attorney General's power to bring a civil suit which seeks to enjoin the deprivation of rights secured by the Fourth, Fifth, Eighth, and Fourteenth Amendments.

 It is quite true that a distinction exists between the present suit and those that would have been included within the language of Title III. Plaintiff, however, has completely missed the significance of that distinction. The fact is that by filing this complaint, as well as the ones in Mattson and Solomon, the Attorney General seeks to exercise a much broader power than that which Title III would have bestowed upon him. Indeed, the plaintiff's power to sue under Title III would have been limited to those instances where the alleged constitutional deprivation was conspiratorial in nature. *fn8" Griffin v. Breckenridge, 403 U.S. 88, 103, 91 S. Ct. 1790, 1799, 29 L. Ed. 2d 338 (1971); Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir.), cert. denied, 409 U.S. 1042, 93 S. Ct. 529, 34 L. Ed. 2d 492 (1977). Here, by contrast, the Attorney General asserts standing to redress all violations of constitutional rights, without having to plead or prove the existence of a conspiracy. *fn9" Yet, the above discussion demonstrates clearly that Congress thought the powers proposed under Title III were excessively broad. The fact that the powers now claimed by the plaintiff are still broader serves only to make them even more objectionable.

 Moreover, the Attorney General cannot possibly argue that while it was debating Title III, Congress had in mind Different Constitutional rights than those involved in the present case. During the 1957 debates on Title III, Senator Allott read into the record a list of rights, compiled by the Attorney General, which had been recognized as being among those guaranteed by the Constitution. The obvious purpose was to illustrate the rights to which the pending legislation referred. The list included, Inter alia, the right to be secure from unlawful searches and seizures; the right to assemble peaceably free from unreasonable restraint by state or local officials; the right, when charged with a crime, to a fair trial; the right not to be tried by ordeal or summarily punished other than in the manner prescribed by law; the right not to be forced to confess an offense; the right to be free from brutality at the hands of prison officials; and the right of a prisoner to protection by the officer having him in custody. 103 Cong.Rec. 12542 (1957). In one form or another, the present lawsuit seeks to vindicate each of these rights.

 It is clear, too, that the objections raised by the opponents of Title III are readily applicable to the power which the Attorney General now purports to exercise. The focus of the opposition was the extent of federal intrusion on local authority that Title III would have permitted. Now the Attorney General claims to possess a power which closely resembles the one that Title III would have granted, except that it is unfettered by the special pleading requirements of section 1985. *fn10" Such a power would permit an even deeper and more pervasive intrusion on the authority of local officials. This is certainly illustrated by the complaint in this case which seeks fundamental changes in the operating policies and procedures of the fourth largest municipal police force in the United States.

 In summary, by bringing this lawsuit, the Attorney General is seeking to utilize a power which Congress has refused to grant. Moreover, the present exercise of that power is even broader than Title III would have permitted. It will be remembered that Title III was itself defeated because the powers it would have bestowed were considered too broad. I firmly reject, therefore, the plaintiff's suggestion that the legislative history discussed above, and relied upon by Mattson and Solomon, is irrelevant to this case. On the contrary, this history of Congressional action is highly relevant, and suggests almost conclusively that the Attorney General is without authority to bring this action.

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