there was much testimony regarding the alleged acts of police misconduct, there was a paucity of evidence introduced regarding the likelihood of its recurrence. Plaintiffs rely on the testimony of James Huggins, the Associate Director of Persad Center, a center for sexual minorities located in Pittsburgh, and an expert in counselling.
Mr. Huggins testified as to the existence of "homophobia" which he defined as an irrational fear, hatred or intolerance of homosexuals. He stated that it was akin to racial prejudice except that it is based upon sexual orientation instead of race. Mr. Huggins testified that homophobia can manifest itself through language and physical evidence. Regarding police violence toward homosexuals, Mr. Huggins pointed to studies which indicate that approximately one out of four gay men have experienced some sort of physical or verbal abuse by the police. He stated that the earlier testimony by plaintiffs' witnesses regarding the use of excessive force by the police and their use of derogatory language such as "faggots," "cocksuckers," and "queers," evidenced homophobia. Mr. Huggins then opined that if this testimony regarding abusive and insultive behavior was assumed to be true, and if the same police officers were to raid the Club again, it was likely that they would repeat this assaultive and insultive behavior. He based this opinion on his knowledge of why people change their behavior. Specifically, Mr. Huggins stated that unless the individual officers are punished in some way and shown that their behavior was inappropriate, they will repeat their behavior in the future.
For the following reasons, however, the court believes that this testimony is undermined by the other evidence introduced at the preliminary injunction hearing and concludes that it is insufficient to show the type of likelihood of recurrence mandated by Lyons.
First, Mr. Huggins' testimony flies in the face of the extensive testimony regarding the historically peaceful relationship between the Club and the State and City police, most of which was offered by plaintiffs' own witnesses. For example, in plaintiffs' efforts to satisfy the first requirement of Lyons -- the likelihood of the Club being raided again -- numerous witnesses, including the Club's steward, Robert Johns, testified that the Club had been raided numerous times in the past by agents of the Pennsylvania Liquor Control Board ("L.C.B."), who formerly had the authority to enforce the Liquor Code. But instead of describing the similarly violent and abusive nature of these earlier raids so as to show the likelihood of future violent raids, plaintiffs' witnesses emphasized the peaceful nature of these earlier raids. It appears that this was an attempt to show the unruliness of the law enforcement agents who are currently vested with the authority to enforce the Liquor Code -- agents of the Pennsylvania State Police Bureau of Liquor Control Enforcement (State Police). However, later uncontroverted testimony established that all of the State Police officers located in the Pittsburgh area were formerly L.C.B. agents; some of whom actually participated in the earlier peaceful raids.
Similar testimony was offered regarding the relationship between the Club and City of Pittsburgh Police officers ("City Police"). The Club's steward, Robert Johns, testified that because the Club is located in a high crime area, he has had hundreds of dealings with City Police officers on matters dealing with the security of Club members. Mr. Johns testified that prior to February 14, 1988, he was always treated fairly by City Police officers. Indeed, he indicated that the police have grown to become sympathetic to Club members' needs for protection. He further testified that he has sought assistance from the City Police since February 14, 1988, without incident. He stated that he would continue to seek their assistance in the future.
Mr. Johns' testimony was supported by the testimony of another Club member, Joseph Musico. Mr. Musico, who occasionally acted as a sort of security guard for the Club by keeping watch from a radio-equipped van parked near the Club's front entrance, testified that it was not unusual for City Police cars to come by the van and check to see whether everything was all right.
Plaintiffs attempt to distinguish uniformed City Police officers (with whom they have a positive relationship) from the plainclothes City Police officers whom they claim acted violently during the February 14, 1988, raid. This factual distinction, however, conflicts with uncontroverted evidence of record. For example, Officer Anthony Hildebrand, one of the plainclothes City Police officers accused of violent behavior, testified that he had been to the Club from twelve to twenty times prior to February 14, 1988, in response to requests from the Club. He stated that he had never had any problems on these prior visits and in fact had personally dealt with Mr. Johns on at least one occasion. Moreover, plaintiffs offered no testimony or evidence that plainclothes State or City Police officers had violated their constitutional rights in the past.
Even if the court accepts this factual distinction between uniformed and plainclothes City Police officers, however, plaintiffs are attempting to support the granting of a preliminary injunction based upon the unsanctioned actions of a few individual plainclothes police officers on a single occasion. These are the exact allegations found insufficient in Rizzo and Lyons.
Second, in addition to the historically peaceful relationship between the Club and the police, Mr. Huggins' opinion is undermined by the fact that it is based upon his assumption that the only punishment capable of preventing a recurrence of the alleged unconstitutional conduct is the granting of a preliminary injunction. Such an assumption is erroneous, however, because it ignores the real possibility that other sanctions, such as an award of damages against the individual officers, can have an equal or greater deterrent effect.
The court is also unpersuaded by the statistical evidence
offered by Mr. Huggins in support of his opinion that the alleged violence was likely to recur. That one out of four gay men have been victims of police violence or verbal abuse nationwide or in another locality does not nearly rise to the level of statistical support necessary to show that a future raid of this Club by these defendants is likely to result in assaultive and abusive behavior. Additionally, the court believes that Mr. Huggins' testimony is further undermined by the fact that he is a member of the Club. Accordingly, although the court does not question Mr. Huggins' veracity, the court is not persuaded by his opinion regarding the likelihood of recurrence and concludes that the plaintiffs have failed to establish a case or controversy regarding injunctive relief based upon the February 14, 1988, raid.
Plaintiffs attempt to overcome the difficulties inherent in seeking injunctive relief based upon past harm by claiming that they are also suffering a present and continuing harm. Specifically, plaintiffs claim that their rights are currently being injured because their fear of another raid is currently chilling their First Amendment right to freely associate at the Club. In support of this assertion, plaintiffs rely on O'Shea and Lyons for the proposition that "past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects." O'Shea, 414 U.S. at 495-96; Lyons, 461 U.S. at 102 (quoting O'Shea) (emphasis added). Plaintiffs asserted at oral argument that this chilling effect on their freedom of association is such a "continuing, present adverse effect."
The Supreme Court in Lyons, however, has rejected such an argument. In response to the plaintiff's fear that he would again be choked, the Court stated:
The reasonableness of Lyons' fear is dependent upon the likelihood of a recurrence of the allegedly unlawful conduct. It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff's subjective apprehensions. The emotional consequences of a prior act simply are not a sufficient basis for an injunction absent a real and immediate threat of future injury by the defendant. Of course, emotional upset is a relevant consideration in a damages action.
461 U.S. at 107 n.8 (emphasis added).
Similarly, in the present case, plaintiffs' alleged chilling effect is an emotional consequence of a prior act -- the February 14, 1988, raid -- and not of some present conduct by the defendants. As such, it can only support standing if there is a likelihood that the prior act will recur. Since the court has previously concluded that the plaintiffs have failed to establish a sufficient likelihood that the alleged unconstitutional conduct will recur, the additional allegation regarding a chilling effect does not elevate this otherwise nonjusticiable matter into a legitimate case or controversy under Article III. See Laird v. Tatum, 408 U.S. 1, 13-14, 33 L. Ed. 2d 154, 92 S. Ct. 2318, reh'g denied, 409 U.S. 901, 34 L. Ed. 2d 165, 93 S. Ct. 94 (1972) ("subjective 'chill' is not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.")
In summary, the court concludes that the plaintiffs have failed to establish a justiciable case or controversy under the principles set forth in O'Shea, Rizzo, and Lyons. Although plaintiffs have satisfied the first requirement of Lyons by convincing the court that a similar raid will occur in the future, they have failed to satisfy the second and crucial requirement by failing to demonstrate that it is likely that this future raid will be characterized by the same or similar assaultive and insultive conduct. At best, plaintiffs alleged in their complaint, and sought to prove at the preliminary injunction hearing, that on February 14, 1988, a small number of identified and unidentified law enforcement agents engaged in isolated acts of police misconduct. Such allegations are insufficient to establish a case or controversy for injunctive relief.
Of course, members of the gay and lesbian community are entitled to the same rights and privileges as all other citizens. However, there are certain legal requirements which must be met before a citizen, any citizen, may obtain injunctive relief in federal court. If these requirements are not met, a federal court is not free to act. This is not to say, however, that law enforcement officials are free to violate the constitutional rights of citizens so long as they only do so on a single occasion. As noted in O'Shea and Lyons, "withholding injunctive relief does not mean that the 'federal law will exercise no deterrent effect in these circumstances.' If [a citizen] has suffered an injury barred by the Federal Constitution, he has a remedy for damages under § 1983." Lyons, 461 U.S. at 112-13 (quoting O'Shea, 414 U.S. at 503).
Accordingly, plaintiffs' request for preliminary injunctive relief will be denied. In addition, because plaintiffs have not alleged any facts in their complaint which, if taken as true, would show a likelihood of recurrence, plaintiffs' complaint, insofar as it seeks injunctive relief, will be dismissed.
An appropriate order will follow.
ORDER OF COURT
AND NOW, this 5th day of May, 1988, for the reasons stated in the opinion of the court filed this date, IT IS ORDERED that plaintiffs' motion for preliminary injunction be, and the same hereby is, denied; and,
IT IS FURTHER ORDERED that plaintiffs' complaint be, and the same hereby is, dismissed insofar as it seeks injunctive relief.