Long v. District of Columbia

• Decision Date: 06 September 1972
• Docket Number: No. 71-1072.,71-1072.
• Citation: 152 US App. DC 187,469 F.2d 927
• Parties: Charles D. LONG, Appellant, v. DISTRICT OF COLUMBIA et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

152 US App. DC 187, 469 F.2d 927 (1972)

Charles D. LONG, Appellant, v. DISTRICT OF COLUMBIA et al.

No. 71-1072.

United States Court of Appeals, District of Columbia Circuit.

Argued June 14, 1972.

Decided September 6, 1972.

As Amended on Denial of Rehearing December 4, 1972.

Mr. Ralph J. Temple, Washington, D. C., with whom Messrs. William A. Bradford, Jr., and James H. Heller, Washington, D. C., were on the brief, for appellant. Messrs. John J. Sexton and Patrick J. Mahoney, Washington, D. C., also entered appearances for appellant.

Mr. David P. Sutton, Asst. Corp. Counsel for the District of Columbia with whom Messrs. C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for appellee.

Before WRIGHT, TAMM and WILKEY, Circuit Judges.

WILKEY, Circuit Judge:

On 25 February 1969 appellant was allegedly shopping in a jewelry store in Washington, D. C. For some unspecified reason, the proprietor of the jewelry store called the police and reported that a "suspicious" man was in the store. Several police officers promptly came to the store and, upon being directed to appellant, demanded that he identify himself and answer a few brief questions. In order to assure that appellant was not carrying a weapon, the police conducted a superficial search or "frisk" of appellant's outer clothing and body. No arrest was made and the entire incident lasted nine minutes.

Appellant's attorney subsequently wrote the Chief of the Metropolitan Police Department and requested assurance that appellant would not be subject to another such incident. In response, the Chief of Police advised appellant's counsel that he could not give such an assurance, and that the "frisk" conducted on appellant was in accord with the Constitution and procedural guidelines established by the Police Department.

Appellant thereafter brought a class action on behalf of himself and all others similarly situated against the District of Columbia, the Chief of Police and various other police officers. Appellant sought to enjoin the police from stopping and frisking individuals in any manner not in accord with their constitutional rights, alleging the actions complained of here to be typical and to be violative of constitutional rights. Appellant also requested that a three-judge court be convened in order to declare a provision of the D.C.Code and a federal statute unconstitutional. Finally, based on the actions of the Metropolitan Police, appellant sought $15,000 in damages for false arrest from the District of Columbia.

In aid of his action, appellant served upon defendants a set of interrogatories seeking detailed information concerning the incident at the jewelry store, as well as various unspecified searches, stops, frisks, and interrogations conducted upon other individuals. The Police Department answered the interrogatories concerning the jewelry store incident but declined to answer interrogatories about other police actions. The Department asserted that information about other incidents was not relevant to the legality of the action taken against appellant.

The trial court denied appellant's request for the convention of a three-judge court to consider the constitutionality of the two statutes and dismissed the action seeking to enjoin the Police Department's stop-and-frisk policies. The court further found that appellant's individual claim for money damages could not reasonably exceed $10,000 and that this issue should, therefore, be heard in the District of Columbia Court of General Sessions. Finally, the District Court held that the Police Department need not answer appellant's interrogatories seeking information about stops and frisks other than the one in which appellant was involved.

I. The Convention of a Three-Judge Court

Appellant sought the convention of a three-judge court in order to enjoin the operation of two statutory provisions. The first statute permits the questioning for a period "not to exceed three hours" of "any person arrested in the District of Columbia."¹ The second statute provides that voluntary confessions made by a person under arrest or custodial detention shall not be inadmissible solely because of a delay in bringing the person before a committing magistrate.² It is, of course, true that if a situation existed in which these statutes might be enjoined as being unconstitutional, it would be necessary to convene a three-judge court to hear the issue. It is the opinion of this court, however, that the facts presented here simply do not call into question the constitutionality of these two statutes.

The two statutes were not the basis of the "stop and frisk" performed on the appellant. It is clear that in acting as they did, the police were attempting to utilize the "stop and frisk" procedure upheld in Terry v. Ohio.³ In Terry an individual was searched for weapons for reasons which did not in a strict sense constitute probable cause. The Supreme Court held such a search was permissible when a police officer was reasonably warranted in the belief that his safety or that of others in the area might be endangered.⁴ This court has subsequently held that such a confrontation and pat-down is neither an arrest nor a custodial detention, even though the police officer interrogates the suspect in the course of such an investigative confrontation.⁵

In some situations it may be difficult to distinguish between a Terry "stop and frisk" and the situations covered by the two statutes called into question. It is conceivable that a stop and frisk could extend for so long that it would be virtually indistinguishable from an arrest. In such a situation it might be unclear whether the police were acting pursuant to Terry or to the statute which permits the detention and questioning of a suspect for three hours following arrest. Fortunately, this is not such a difficult case. Appellant was clearly not placed "under arrest" by the police officers. The first statute under attack deals only with questioning following an "arrest." Since no arrest occurred, it cannot be contended that the statute has any applicability to this case.

The second statute, which permits the use of confessions given prior to arraignment, was clearly not the basis of any of the police's actions. Here no confession was offered or taken by the police; the words of the statute have not been employed to offer a confession given by appellant. It is, therefore, difficult to conceive of how the second statute could be involved in the facts of this case.

From a simple reading of the two statutes attacked by appellant, it seems obvious that neither of them had anything to do with police action in the jewelry store. There is, therefore, no factual predicate giving rise to a case or controversy under either of the statutes. A three-judge court may only act, of course, when a justiciable case or controversy is shown to exist. Absent a justiciable case or controversy, a single judge is required to dismiss the action for lack of jurisdiction.⁶

Appellant's attack on the two statutes is not saved by his allegation that he represents a class that has been the subject of police action based upon the statutes. As we have seen, appellant is not a member of the class of people who have been subject to action based upon the statutes. A person simply cannot represent a class of which he is not a member. For these reasons there was no jurisdictional basis for the convention of a three-judge District Court.

II. Appellant's Rights to an Evidentiary Hearing to Enjoin Future Searches

In addition to his challenge to the two statutes, appellant claims that the action of the police in stopping and frisking him did not comply with the standards established in Terry v. Ohio.⁷ An injunction, therefore, was sought against the police to prevent them from detaining, frisking, searching or interrogating him in the future. We believe that the District Court correctly dismissed this plea for injunctive relief and denied appellant's request for an evidentiary hearing on the matter.

The Metropolitan Police Department has established guidelines for the use of stop-and-frisk procedures.⁸ It is, therefore, possible to examine and consider these guidelines to determine if the Police Department has an official policy of engaging in unconstitutional frisks. If the Department's guidelines are lawful, it cannot be said on the basis of the facts presented that there exists an established policy of making unlawful frisks.

The Department's memorandum treats in detail the three fundamental elements of an investigatory confrontation: the authority to stop, the authority to interrogate, and the right to frisk. The guidelines emphasize that the authority to frisk is distinct from the authority to stop and interrogate, and that a police officer does not necessarily have a right to frisk a suspect simply because the situation permits him to stop and interrogate.

The guidelines provide that in order to stop an individual an officer must have a "reasonable suspicion" that the person is committing, has committed, or is about to commit any felony or misdemeanor prosecutable by the U.S. Attorney. They go on to describe the nature of "reasonable suspicion" and to give examples of action that may give rise to such suspicion. The procedures stress that stops should not be used to harass citizens and there are a number of limitations designed to curb the use of investigatory stops.

The police memorandum's discussion of the authority to question states that interrogations should be brief and should be carried out in the vicinity of the stop. Questioning should be limited to inquiries regarding a person's name, address, and an explanation of his presence and actions. If the questioning becomes extended or begins to focus on an individual relative to a particular crime, the officer is required to advise the suspect of his right to remain silent and to have counsel present....