Lyons v. City of Los Angeles

• Decision Date: 28 March 1980
• Docket Number: No. 77-2591,77-2591
• Parties: Adolph LYONS, Plaintiff-Appellant, v. CITY OF LOS ANGELES, Doe Crupi, Doe Hills, Doe Sandoval and Doe Lloyd, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1243

615 F.2d 1243

Adolph LYONS, Plaintiff-Appellant, v. CITY OF LOS ANGELES, Doe Crupi, Doe Hills, Doe Sandoval and Doe Lloyd, Defendants-Appellees.

No. 77-2591.

United States Court of Appeals,

Ninth Circuit.

March 28, 1980.

Michael R. Mitchell, Los Angeles, Cal., for plaintiff-appellant.

Daniel U. Smith, Deputy City Atty., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before TUTTLE, ^* TRASK and ANDERSON, Circuit Judges.

TUTTLE, Circuit Judge:

Appellant Adolph Lyons filed a seven-count civil rights complaint against the City of Los Angeles (City) and four of its police officers, alleging serious police misconduct. The district court granted partial judgment on the pleadings in favor of the City with respect to those counts seeking injunctive and declaratory relief (counts five, six and seven.) Because we find that the district court misperceived the nature of the "case or controversy" and standing requirements in dismissing part of this case, we reverse the court's order as to counts five and six. We affirm the court's order as to count seven.

I.

The appellant alleges that four Los Angeles city police officers stopped his car because one of its taillights had burned out. He further alleges that without any provocation or reason to fear for their safety, the police officers applied strangleholds around his neck until he was rendered unconscious. Appellant asserts that the police department actively encourages the use of these holds even in non-life-threatening situations, and that on several occasions such police strangleholds have resulted in severe permanent injuries or even death.

The appellant alleges numerous constitutional violations by the police under color of state law. He maintains that the strangleholds violated the first amendment (prior restraint on speech), the fourth amendment (unreasonable seizure of the person), the eighth amendment (cruel and unusual punishment), and the fourteenth amendment (due process). The first four counts of the complaint seek money damages, invoking 42 U.S.C. §§ 1983, 1985, and 1986, and the theory that the City is vicariously liable for the actions of its employees. Counts 5 and 6 seek injunctive and declaratory relief, respectively, to restrain the City from authorizing the use of the stranglehold controls except where the victim reasonably appears to be threatening the immediate use of deadly force. ¹

Count seven requests a declaratory judgment concerning the constitutionality of a local ordinance creating an alleged conflict of interest within the office of the city attorney. Section 20.26 of the Los Angeles City Administrative Code assigns to the city attorney the duty to prosecute misdemeanors committed within the city limits. ² The city attorney, however, is also the official responsible for defending the city against civil liability for the acts of its employees. The appellant therefore argues that when a suspected misdemeanant is a city employee acting in the course of his employment, the city attorney cannot prosecute without violating his ethical duties of his client. Thus, section 20.26 effectively prevents the prosecution of city employees. Therefore, the argument continues, section 20.26 violates the equal protection clause by providing less protection for victims of misdemeanors committed by city employees, than for victims of misdemeanors committed by others. In count seven appellant alleges that the city attorney has neither investigated nor prosecuted the police officers responsible for the assault. He seeks a declaratory judgment that section 20.26 is unconstitutional.

The City moved for partial judgment on the pleadings with respect to counts five, six, and seven, and with respect to those portions of the vicarious liability count (count two) that related to appellant's first and eighth amendment claims. This appeal is from the order granting that motion. ³ Appellant apparently does not contest that part of the order relating to count two of the complaint. Thus, the only claims at issue here are those contained in counts five, six, and seven, against the City.

II.

Count seven of the plaintiff's complaint requests a declaration that section 20.26 of the Los Angeles City Administrative Code, which delegates to the city attorney the authority to prosecute misdemeanors committed within city limits, violates equal protection by effectively barring prosecution of city employees for misdemeanors.

The City argues that Lyons lacked standing to assert that the failure of the city attorney to prosecute his assailants violated his constitutional rights. The City also argues, among other things, that the City is immune from suit regarding the performance of discretionary prosecutorial duties, and the relief sought constitutes an unwarranted interference with state criminal proceedings.

We need not reach these contentions, however, because we find the appellant's argument moot. The city attorney has now announced an official policy of referring to the district attorney those criminal cases in which the alleged misdemeanant is a city employee, and in which there is a reasonable basis for a civil suit against the city. Therefore, this part of the case is no longer justiciable. Cf. Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969). ⁴ Therefore, we affirm the district court as to count seven, intimating no view as to the merits of the appellant's contentions.

III.

However, we reach a different result as to counts five and six pertaining to the use of the stranglehold controls. Count five of the complaint seeks preliminary and permanent injunctions restraining the City from authorizing use of the stranglehold controls other than in life-threatening situations. Count six seeks a declaration that the use of such controls in non-life-threatening situations violates several provisions of the Constitution.

The district court did not issue findings of fact or conclusions of law on these issues. We therefore assume that its judgment rested essentially upon the rationales set forth in the defendant's motion in support of partial summary judgment on the pleadings and its briefs in this Court.

The appellee relies chiefly on the reasoning of O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) and Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) for the proposition that Lyons has not shown the possibility of "real and immediate future injury." It is true, as the appellee states, that O'Shea says that "(p)ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects." 414 U.S. at 495-96, 94 S.Ct. at 676. This is an argument that the plaintiff's case or controversy is no longer active, but is moot or not ripe. ⁵

It seems the court below concluded, most likely on the basis of O'Shea and Rizzo, that there was no standing because there was insufficient showing that the police were likely to do this to the plaintiff again. While this factor was discussed in both Rizzo and O'Shea, reliance on both those cases to support this contention is misplaced. O'Shea involved a suit alleging racial discrimination against a local judge and magistrate. To be affected by the alleged practices of these officers the court said that the plaintiffs would have to "proceed to violate an unchallenged law and if . . . charged, held to answer, and tried . . . before petitioners . . . (and then) subjected to the discriminatory practices . . . ." 414 U.S. at 497, 94 S.Ct. at 676. In Rizzo, a broad-based suit that sought primarily to protect minorities from alleged police abuses, the Court found the plaintiff's claims even more speculative, since they were based "upon what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman's perception of departmental disciplinary procedures." 423 U.S. at 372, 96 S.Ct. at 605.

But in this case, the threat of future injury to not only Lyons, but to every citizen in the area is much more immediate. To be subject to these strangleholds, a citizen need only be stopped for a minor traffic violation while driving an automobile, as shown by the alleged facts in this case. The use of these strangleholds is accepted police practice, even in non life-threatening situations. It is not farfetched to suggest that especially in a city like Los Angeles, where many motorists drive long distances daily, the chances of being stopped by a policeman for an alleged motor vehicle violation are fairly good. Certainly the odds of having that sort of encounter are much greater than the odds of having the sort of encounters described in O'Shea or in Rizzo, and therefore meet the constitutional requirements of "case" or "controversy." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923). For that reason alone, we could hold that Lyons has standing to seek injunctive relief, even given the O'Shea and Rizzo standards that there be a showing that this plaintiff would be stopped again and subjected to the practice.

But this case is distinguishable from both O'Shea and Rizzo case on broader and more significant grounds. The plaintiffs in O'Shea and Rizzo sought massive structural relief. In O'Shea the court's opinion characterized the relief sought as an "ongoing federal audit of state criminal proceedings." 414 U.S. at 500, 94 S.Ct. at 678. Because of the broad charges and the sweeping relief sought in both cases, the plaintiffs were asking the federal courts, in effect, to supervise the conduct of state officials and institutions over a long period of time. It was this role and this perceived intrusion into what were considered state matters which were at the heart of ...