Portland Police Ass'n v. City of Portland By and Through Bureau of Police

• Decision Date: 02 December 1981
• Docket Number: No. 79-4292,79-4292
• Citation: 658 F.2d 1272
• Parties: PORTLAND POLICE ASSOCIATION and Stan Peters, individually and as President of the Portland Police Association, Plaintiffs-Appellants, v. The CITY OF PORTLAND, By and Through the BUREAU OF POLICE; and B. R. Baker, individually and in his capacity as Chief of the Bureau of Police, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1272

658 F.2d 1272

PORTLAND POLICE ASSOCIATION and Stan Peters, individually and as President of the Portland Police Association, Plaintiffs-Appellants, v. The CITY OF PORTLAND, By and Through the BUREAU OF POLICE and B. R. Baker, individually and in his capacity as Chief of the Bureau of Police Defendants-Appellees.

No. 79-4292.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 8, 1981.

Decided Sept. 23, 1981.

Rehearing and Rehearing En Banc Denied Dec. 2, 1981.

David J. Edstrom, Portland, Or., for plaintiffs-appellants.

Richard A. Braman, Portland, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before CHOY, KENNEDY and REINHARDT, Circuit Judges.

KENNEDY, Circuit Judge:

The Portland Police Association (PPA) and its President brought suit in district court for an injunction against enforcement of an order by the Chief of the Bureau of Police of the City of Portland. In essence, the Chief's order states that after a "major incident," such as the discharge of a firearm or an on-duty automobile collision, the Portland police officer involved must "completely document his/her actions" in official reports before going off duty. It further states that "(o)fficers involved in such incidents do not, at the time of creating such official reports, have the right to consult with an attorney...." The order provides, however, for provision of counsel if the officer's superiors or the police legal advisor believe that the officer may be exposed to criminal liability or employment sanctions. Peters and the PPA challenge the portion of the order which limits the right to consult counsel before writing the report, and they seek relief under 42 U.S.C. § 1983. They allege that the order violates their privilege against self-incrimination, their freedom of association, their sixth amendment right to counsel, and their due process and equal protection rights under the fourteenth amendment. After consolidating the hearing for the preliminary injunction with the trial on the merits, the court below denied the injunctive and declaratory relief requested by the plaintiffs. We hold that the complaint does not present a justiciable controversy and remand the case so that it may be dismissed for lack of jurisdiction.

Before a case is justiciable in federal court, it must be alleged that the plaintiff is threatened by injury that is "both 'real and immediate,' (and) not 'conjectural' or 'hypothetical.' " O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974), quoting Golden v. Zwickler, 394 U.S. 103, 109-10, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969). See also Rizzo v. Goode, 423 U.S. 362, 372-73, 96 S.Ct. 598, 604-05, 46 L.Ed.2d 561 (1976); City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231, 238-39 (9th Cir. 1980). Without such immediacy and certainty of injury the dispute is not ripe; it has not "matured sufficiently to warrant judicial intervention." Warth v. Seldin, 422 U.S. 490, 499 n.10, 95 S.Ct. 2197, 2205 n.10, 45 L.Ed.2d 343 (1975).

O'Shea presented an example of an impermissibly speculative claim. There, nineteen plaintiffs brought a class action challenging allegedly unconstitutional bail setting and post-trial sentencing practices in Cairo, Illinois. None of the plaintiffs, however, alleged any specific injury with regard to these practices. 414 U.S. at 495, 94 S.Ct. at 676. All that counsel for the plaintiffs could allege was that several unspecified plaintiffs had been subject to the illegal practices. Id. In order to allege the necessary injury, the court stated that it was necessary to assume a series of contingencies: "if (plaintiffs) proceed to violate an unchallenged law and if they are charged, held to answer and tried in any proceedings, they will be subjected to discriminatory practices." Id. at 497, 94 S.Ct. at 676 (emphasis in original). This string of contingencies was determined to be too speculative and conjectural for resolution by a federal court. ¹ Id. See also Rizzo v. Goode, supra; Golden v. Zwickler, supra; City of South Lake Tahoe, supra; Stewart v. M. M. & P. Pension Plan, 608 F.2d 776, 784-85 (9th Cir. 1979).

Here, the allegations of the appellants are even more speculative. Central to any case in which Portland police officers' rights are even arguably violated is the following series of contingencies: the officer must be in a "major incident"; he or she must be at least partly culpable for its occurrence; he or she must request counsel; that request must be denied or counsel must not otherwise be supplied; and, finally, disciplinary or criminal proceedings must be instigated for either failure to complete reports or because of the utterance of incriminating statements during the report process. The series of contingencies is not only long, but the appellants have failed to demonstrate that each stage necessarily follows its predecessor. In their pretrial statement, for example, both parties agreed not to contest that no Portland police officer had ever been denied counsel when he or she requested one. In O'Shea, at least, there was some allegation of past illegal activity upon which to base a claim of a threat of real and immediate injury. 414 U.S. at 495-96, 94 S.Ct. at 676. Furthermore, the order itself says that counsel may be provided if the officer's command or the independent police advisor believes the officer's statements may be incriminating. Thus, not only is the series of contingencies longer than the one in O'Shea, but the appellants can neither offer any history of alleged deprivations, nor assert with assurance that counsel will not be provided in the future. As such, their claim is abstract at best. ² It is not appropriate for judicial determination at this time. ³

The judgment is vacated and the case is remanded so that the action may be dismissed for want of a justiciable controversy.

REINHARDT, Circuit Judge, dissenting:

I dissent. The Portland Police Association (PPA) represents all of the members of the Bureau of Police of the rank of policeman, detective, criminalist, and sergeant (collectively referred to in this dissenting opinion as "police officers"). In August 1978 the Chief of Police issued a memorandum-order prohibiting police officers from consulting with private counsel prior to completing and submitting an official report regarding any "major incident" in which they are involved. ¹ Major incidents include the discharge of a firearm at a criminal suspect, other use of deadly force, and involvement in a serious on-duty motor vehicle accident. There is an exception for instances in which a commanding officer or the Bureau's legal advisor concludes, on the basis of the information provided to him, that the officer should be allowed to consult private counsel. ² It is not entirely clear whether this memorandum-order reflects a continuation of a preexisting policy, as defendants contend, or whether the memorandum-order constitutes a change in policy in some respects, as the memorandum-order itself suggests and as the Chief of Police apparently admitted. ³ It is clear, however, why the Chief of Police issued the memorandum-order.

In July 1978, in an article contained in its regular newspaper, the PPA announced to its members that it had hired an attorney to give advice to its members. The article stressed the attorney's familiarity with firearms incidents and the Bureau's operations. The attorney had just completed five years service with the Bureau as a legal advisor. The article notified the Portland police officers that if they were involved in a firearms incident they could call the attorney at his home or office number, that he would be on 24-hour call and would "immediately" provide whatever legal advice they needed in preparing reports or making statements. The Chief testified that upon reading the PPA's newspaper article he issued the memorandum-order which gives rise to the litigation before us.

The PPA contends that the memorandum-order violates a number of its members' constitutional rights, including their first amendment right to freedom of association. ⁴ There is no question that individual officers who consult an attorney in violation of the Chief's memorandum-order are subject to discipline, including discharge. The Chief so testified. There is also no question that the Portland police officers desire to exercise their constitutional right to consult an attorney prior to filing a report (if they in fact have such a right), since they hired an attorney to provide that very service. ⁵

The majority finds a lack of ripeness and dismisses the litigation for want of a justiciable controversy. I disagree. While the constitutional question is a serious and substantial one, I do not express any view as to its ultimate resolution. That is a matter that will have to be decided when the majority's test of ripeness is met. That the officer who chooses to be a guinea pig to be the first to exercise what Portland's police officers believe to be their constitutional right to consult an attorney may suffer a lawful discharge if another panel of this court subsequently decides he guessed wrong about the meaning of the constitution is, to say the least, an unfortunate consequence of the majority's decision.

The majority bases its conclusion as to ripeness primarily on O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). O'Shea involved an effort by a number of civil rights activists to have the federal courts impose restrictions on a local judge and magistrate who allegedly discriminated against those seeking racial equality. The Court was unwilling to assume that any of the individuals who filed the lawsuit would in the future violate any valid law, be charged before the particular magistrate or judge, and then be treated in a discriminatory manner by one of them. The Court said that it was ...