Chicano Police Officer's Ass'n v. Stover

• Decision Date: 02 March 1977
• Docket Number: No. 74-1169,74-1169
• Citation: 552 F.2d 918
• Parties: 14 Fair Empl.Prac.Cas. 763, 13 Empl. Prac. Dec. P 11,567 CHICANO POLICE OFFICER'S ASSOCIATION et al., Plaintiffs-Appellants, v. Robert V. STOVER, Chief of Police, Albuquerque Police Department, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 918

552 F.2d 918

14 Fair Empl.Prac.Cas. 763,

13 Empl. Prac. Dec. P 11,567

CHICANO POLICE OFFICER'S ASSOCIATION et al., Plaintiffs-Appellants, v. Robert V. STOVER, Chief of Police, Albuquerque Police Department, et al., Defendants-Appellees.

No. 74-1169.

United States Court of Appeals Tenth Circuit.

March 2, 1977.

Rehearing and Rehearing En Banc Denied April 14, 1977.

Ray M. Vargas, Atty., Albuquerque, N. M. (Richard Bosson, Albuquerque, N. M., Vilma S. Martinez, Sanford Jay Rosen and Drucilla S. Ramey, San Francisco, Cal., and Joseph R. Grodin, San Francisco, Cal., of counsel, University of California Hastings College of Law, on the brief), for plaintiffs-appellants.

William S. Dixon, Albuquerque, N. M. (Frank L. Horan, and Rodey, Dickason, Sloan, Akin & Robb, P. S. and Duane C. Gilkey, Albuquerque, N. M., on the brief), for defendants-appellees.

Before SETH, HOLLOWAY and DOYLE, Circuit Judges.

PER CURIAM.

On consideration of the petition for certiorari and the response thereto, the Supreme Court vacated our judgment and remanded this case to us for further consideration in light of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597. Stover et al. v. Chicano Police Officer's Association, et al., 426 U.S. 944, 96 S.Ct. 3161, 49 L.Ed.2d 1181. After receipt of the mandate we directed the filing of further briefs and that of plaintiffs-appellants, of defendants-appellees, and a reply brief, have been filed. On consideration of Washington v. Davis, the additional briefs and the record before us, we will make the disposition we feel proper pursuant to the mandate of the Supreme Court.

The facts need not be reviewed in detail since they were fully stated in our prior opinion. See 526 F.2d 431. It suffices to note that this civil rights suit essentially challenged the hiring and promotion practices of the Albuquerque, New Mexico, Police Department as being allegedly discriminatory against Spanish-speaking and Spanish surnamed Americans (Chicanos), and thus in violation of the Equal Protection Clause of the Fourteenth Amendment. The suit sought declaratory and injunctive relief and was brought pursuant to 42 U.S.C. §§ 1981, 1983 and 1985, jurisdiction being founded on 28 U.S.C. § 1343(3) and (4). Plaintiffs made no claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000-e et seq. We disagreed with the trial court on rejection of a claim of standing to challenge hiring practices for entry in the police force, the exclusion of certain evidence, and the ultimate findings and conclusions made. We vacated the findings, conclusions and judgment and remanded for further proceedings.

The error in our holding and the views expressed by us is clear. We stated that we agreed ". . . with the view that the measure of a claim under the Civil Rights Act is in essence that applied in a suit under Title VII of the Civil Rights Act of 1964." 526 F.2d at 438. This was contrary to the principal holding that came in Washington v. Davis, supra at 426 U.S. 238, 96 S.Ct. 2040. All of our reasoning and treatment of the case which proceeded from the erroneous standard must be corrected. For that purpose we note the admonition that the Court has ". . . not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact." Washington v. Davis, supra at 239, 96 S.Ct. at 2047.

The recent briefs submitted to us in the case since the remand from the Supreme Court have urged several positions. The plaintiffs argue first that the facts of the case in the present record show a purpose to discriminate, that the testimony of experts and the figures demonstrate a discriminatory impact on Spanish-surnamed Americans, and that there was no showing of a validation of the challenged examinations as job-related. They say that for these reasons we should reaffirm our prior disposition and remand for further proceedings. (Brief of Plaintiffs-Appellants 6, 8, 11, 14). In their reply brief, however, plaintiffs take the position that they need not establish specific intent to deprive plaintiffs of their rights or to injure them and that we should "determine that the evidence before (us) establishes a constitutional violation and that the decision of the District Court be held to be error." (Reply Brief of Plaintiffs-Appellants 3).

The Defendants-Appellees argue that the decision of the trial court for the defendants must be affirmed under Washington v. Davis, that a discriminatory purpose was not alleged or proved, that there was no evidence to show that the construction and We cannot agree with the position taken by either side. We should not, as plaintiffs suggest, make a finding or determination as to whether the evidence showed a constitutional violation under the standard now laid down. That question as it is now framed under Washington v. Davis was not addressed by the earlier findings of the trial court. Such fact-finding is the responsibility of the trial court and not for us to resolve in the first instance. DeMarco v. United States, 415 U.S. 449, 450, 94 S.Ct. 1185, 39 L.Ed.2d 501.

use of the tests were intended to exclude Chicanos from high level positions in the department, and that the testimony on the contrary showed no such intent in the construction and use of the tests, so that there was no constitutional violation (Brief of Defendants-Appellees Upon Remand 3, 7, 9).

On the other hand, we feel it unfair to search the present record with a view to possible affirmance of judgment against the plaintiffs, as defendants suggest. The proper test for the case was not in the minds of the parties at trial it seems, just as it was misjudged by us. We feel that permitting the parties to make a further presentation under the test now made clear by Washington v. Davis is the proper and just disposition for us to make. See Hormel v. Helvering, 312 U.S. 552, 558-59, 61 S.Ct. 719, 85 L.Ed. 1037; Donald v. Madison Industries, Inc., 483 F.2d 837, 845-46 (10th Cir.). In such proceedings the trial court may permit amendments as to claims and defenses to protect the rights of the parties. Bryan v. Austin, 354 U.S. 933, 77 S.Ct. 1396, 1 L.Ed.2d 1527, and may consider further proof.

We must reconsider some of the points ruled on in our prior opinion which would have a bearing on further proceedings, and of course in doing so we must follow the principles of Washington v. Davis. First, the...