506 F.2d 542 (3rd Cir. 1974), 73-2023, Goode v. Rizzo

Docket Nº:Gerald G. GOODE et al., Appellants in No. 73-2023,
Citation:506 F.2d 542
Case Date:November 01, 1974
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 542

506 F.2d 542 (3rd Cir. 1974)

Gerald G. GOODE et al., Appellants in No. 73-2023,


Frank L. RIZZO, Mayor, City of Philadelphia, Pennsylvania,

et al., Appellantsin Nos. 73-2024 and 73-2025.



Appellants in No. 73-2079,


Honorable James H. J. TATE et al.

Appeal of Frank L. RIZZO et al., in Nos. 73-2077 and 73-2078.

Nos. 73-2023 to 73-2025 and 73-2077 to 73-2079.

United States Court of Appeals, Third Circuit

November 1, 1974

Argued June 10, 1974.

Certiorari Granted March 31, 1975, See

95 S.Ct. 1443.

Page 543

Peter Hearn, F. John Hagele, Nancy J. Gellman, Jack J. Levine, Philadelphia, Pa., for appellees in Nos. 73-2024 and 73-2025 and for cross-appellants in 73-2023; Pepper, Hamilton & Scheetz, Philadelphia, Pa., of counsel.

James M. Penny, Jr., Asst. City Sol., John Mattioni, Deputy City Sol., Martin Weinberg, City Sol., Philadelphia, Pa., for appellants in Nos. 73-2024, 73-2025, 73-2077 and 73-2078, and cross-appellees in Nos. 73-2023 and 73-2079.

William Lee Akers, Philadelphia, Pa., Harry Lore, Philadelphia, Pa., for appellees in Nos. 73-2077 and 73-2078 and cross-appellants in 73-2079.

Barry S. Kohn, Deputy Atty. Gen., Israel Packel, Atty. Gen., Community Advocate Unit, Philadelphia, Pa., for Commonwealth

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of Pennsylvania, amicus curiae, on behalf of appellees in Nos. 73-2023 and 73-2025.

Robert M. Landis, Samuel T. Swansen, Stephen M. Cushmore, Philadelphia, Pa., for Philadelphia Bar Assn., amicus curiae, for appellees in 73-2023 to 73-2025 and cross-appellants in 73-2023; Dechert, Price & Rhoads, Philadelphia, Pa., of counsel.

Charles C. Hileman, III, C. Gary Wynkoon, Philadelphia, Pa., for the Lawyers' Committee for Civil Rights Under Law, amicus curiae; Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., of counsel.

Frederic L. Ballard, Michael Lehr, Philadelphia, Pa., for Greater Philadelphia Movement, amicus curiae.

Before STALEY, GIBBONS and WEIS, Circuit Judges.


WEIS, Circuit Judge.

A delicate balancing between the functions of the federal district court and the police department of the City of Philadelphia is the essence of the controversy presented in this appeal. A finding by the trial court that a modification of internal procedures for handling citizens' complaints is an adequate remedy for preventing future misconduct by a minority of policy officers is sufficiently supported by the record. But, an assessment of counsel fees in this 1983 case must be remanded for further proceedings.

Two separate cases were filed by different plaintiffs, all purporting, however, to represent essentially the same class of persons. 1 The defendants also were generally the same, being the Mayor and other city and police officials. 2 The two cases were consolidated by the district judge for final disposition, and we therefore, as did he, treat this litigation as unitary.

The plaintiff produced evidence which the district court found adequate to establish a pattern of violations of the legal and constitutional rights of citizens by Philadelphia police, particularly in the areas of 'arrest for investigation, charges of resisting arrest when the arrest was initially unlawful, extreme over-reaction to actual or reported assaults upon policemen and in the treatment of people who question or criticize police activity in particular instances.'

The testimony was presented by victims of police misconduct or witnesses to it and encompassed more than thirty-

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five incidents, not all of which were found to be examples of improper activity on the part of the officers. The district judge summarized each incident in his voluminous findings of fact and concluded that, while misconduct is attributable to only a small percentage of the members of the police force, the violations take place with such frequency that 'they cannot be dismissed as rare isolated instances; and that little or nothing is done by the city authorities to punish such infractions, or to prevent their recurrence.' 3

The existing police procedures for processing and adjudicating citizen complaints and for enforcing police discipline were evaluated, the court finding that the arrangements then existing were totally inadequate because:

1. The procedures were geared to handle infractions of police regulations but these rules were not framed to cover specific violations of citizens' constitutional rights;

2. Complaints were handled on a 'chain of command' basis which discouraged civilian complaints;

3. There was no adequate opportunity for the complainant to present his case to an objective tribunal;

4. The outcome of the proceedings were not disclosed; and

5. There was a tendency to minimize consequences of proven police misconduct.

Although the plaintiffs had asked for a sweeping equitable decree, including the appointment of a 'receiver' to supervise the police department and the civilian review of police activity, the trial court concluded that a much more limited form of relief was appropriate. It required the defendants to revise the procedures within the police department for processing citizens' complaints against the police, including such matters as:

1. Preparing and distributing appropriate forms for the submission of complaints;

2. Prompt and adequate investigation;

3. Adjudication by an impartial body insulated from command pressures; and

4. Fair opportunity for both complainants and police officers to present their cases, followed by notification to the parties of the outcome.

The court stated that its guidelines pose no threat to vigorous law enforcement, are consistent with generally recognized minimal standards, and impose no substantial burden on the police department. The district court also concluded that an award of counsel fees and expenses to the plaintiffs was justified and assessed sums totalling $39,417.58 against 'the defendants.'

The defendants appeal from the judgments in all respects. The plaintiffs COPPAR and Goode cross-appeal on the ground that the grant of counsel fees is inadequate, and COPPAR cross-appeals from the denial of its request for the appointment of a receiver.


We first consider the defendants' challenge to the plaintiff's standing to maintain this suit on the ground that the requirements set out in O'Shea v. Littleton, 414 U.S. 488 94 S.Ct. 669, v. Littleton, 414 U.S. 488, 94 S.Ct. 669, met. In that case the Supreme Court found a lack of standing when the complaint did not allege injury on the part of any of the named plaintiffs and no class determination had been made. But, a few months later, in Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 2201, 40 L.Ed.2d 566 (May 21, 1974), the Court noted, '. . . Moreover as, to this portion of the decree, directed at police misconduct generally rather than to any particular state statute, named plaintiffs intimidated by misconduct may represent all others in the class of those similarly abused . . .'

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In the case sub judice, the named plaintiff, Gerald Goode, alleged in the complaint and established at the trial an incident where he was the victim of an illegal arrest and beating by Philadelphia police. 4 Herbert Brown, another named plaintiff, alleged an illegal beating by the police which presented an arguably constitutional violation.

While the GOODE complaint is loosely drawn, a fair reading shows that the individual plaintiffs allege a series of illegal arrests and unauthorized entry into their homes by police officers. Many of the named plaintiffs did not testify at the hearing. However, at the direction of the trial judge at a pretrial hearing, a list of other names and a description of the incidents in which they were involved were filed with the court. Although somewhat informal, this may properly be considered an amendment to the complaint and was so treated by the district court. Many of these additional parties testified in the district court.

Although more precision and attention to the appropriate procedural rules by the parties would have been helpful, from a practical standpoint we conclude that the requisites for standing have been met.

There is a distinction too between the underlying situation in the O'Shea case and the instant litigation. In O'Shea v. Littleton, supra, the Court was concerned with the fact that the injunction sought by the plaintiffs would affect events which would take place during state criminal trials, thus violating the principles of Younger v...

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