U.S. v. City of Philadelphia

Decision Date19 February 1981
Docket NumberNo. 80-1348,80-1348
PartiesUNITED STATES of America, Appellant v. CITY OF PHILADELPHIA; William J. Green, Mayor of Philadelphia; W. Wilson Goode, Managing Director; Marvin E. Aronson, M.D., Medical Examiner; G. Edward DeSeve, Director of Finance; Morton B. Solomon, Police Commissioner; William Devlin, Deputy Police Commissioner; Donald Gravatt, Deputy Police Commissioner; Robert Armstrong, Chief Inspector, Philadelphia Police Department (Internal Affairs Bureau); Gregore Sambor, Chief Inspector, Philadelphia Police Department (Training Bureau); Frank A. Scafidi, Chief Inspector, Philadelphia Police Department (Detective Bureau Headquarters Units); successor to position of Chief Inspector, Philadelphia Police Department (Detective Bureau Field Offices); successor to position of Chief Inspector, Philadelphia Police Department (Staff Services Bureau); Robert Wolfinger, Chief Inspector, Philadelphia Police Department (Command Inspector); successor to functions of Chief Inspector, Philadelphia Police Department (Patrol Bureau South); successor to position of Chief Inspector, Philadelphia Police Department (Command Inspector); John Craig, Chief Inspector, Philadelphia Police Department (Patrol Bureau North); John McHugh, Chief Inspector, Philadelphia Police Department (Special Patrol Bureau); Francis X. O'Shea, Chief Inspector, Philadelphia Police Department (Community Relations Bureau); David Cordivari, Captain of the Philadelphia Police Department; David Owens, Superintendent of Prisons.
CourtU.S. Court of Appeals — Third Circuit

Peter F. Vaira, Jr., U. S. Atty., Drew S. Days, III, Asst. Atty. Gen. (argued), Brian K. Landsberg, David B. Marblestone, Martha A. Fleetwood, T. Alexander Aleinikoff, Attys., Dept. of Justice, Washington, D. C., for appellant, U. S.

Alan J. Davis, City Sol. (argued), Mark A. Aronchick, Judith N. Dean, Deputy City Sol., Ralph J. Teti, Barbara Axelrod, Philadelphia, Pa., for appellees.

Daniel J. Popeo, Paul D. Kamenar, Washington Legal Foundation, Washington, D. C., Stephen J. Zivic, Orie & Zivic, Pittsburgh, Pa., for amicus curiae, Washington Legal Foundation.

Before ALDISERT, VAN DUSEN and GARTH, Circuit Judges.


ALDISERT, Circuit Judge.

The primary question in this appeal is whether the United States has implied authority to sue a city and its officials for an injunction against violations of the fourteenth amendment rights of individuals. The government argues that both the criminal provisions of the Civil Rights Acts of 1866 and 1870, 18 U.S.C. §§ 242 and 241, and the fourteenth amendment itself give rise to an implied right of action. We also must decide whether the government has stated a claim for relief under the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d, or the State and Local Fiscal Assistance Act of 1972 (the "Revenue Sharing Act"), 31 U.S.C. § 1242. In a pair of published opinions, the district court held that the Attorney General has no standing to advance the civil rights of third persons absent an express statutory grant of the necessary authority, and that the complaint did not allege claims under the two funding statutes with sufficient specificity; and accordingly

it dismissed the complaint. United States v. City of Philadelphia, 482 F.Supp. 1248 and 1274 (E.D.Pa.1979). We affirm.


Because the case comes before this court on appeal from orders of the district court dismissing the complaint, we assume that all well-pleaded allegations of the complaint are true, and we set out the facts alleged in the light most favorable to the appellant.

The government's theory is that the appellees, the City of Philadelphia and numerous high-ranking officials of the City and its Police Department, have engaged in a pattern or practice of depriving persons of rights protected by the due process clause of the fourteenth amendment. The allegations of the complaint can be conveniently divided into two categories. First, it alleges that Philadelphia police officers have engaged in a widespread practice of violating the rights of persons they encounter on the streets and elsewhere in the city. In particular, it charges that officers have stopped automobiles and pedestrians without probable cause and physically abused or illegally arrested those who protested, arbitrarily closed public areas and responded to protests or resistance with physical abuse and unwarranted arrests, conducted illegal searches and seizures, detained persons without probable cause or for excessive periods, denied them access to counsel or to medical care while detained, physically abused arrested persons, extracted information and confessions by means of physical brutality, subjected individuals to verbal abuse (including racial slurs), filed unwarranted criminal charges, and engaged in unnecessary use of deadly force, such as shooting criminal suspects who offer no realistic threat to the safety of police officers or other persons.

Second, the United States alleges that the appellees have deliberately encouraged these illegal practices through the policies and procedures they have established for investigating complaints of illegal police activity. It charges that the appellees discourage victims of abuse from complaining, suppress evidence that inculpates police officers, accept implausible explanations of abusive conduct, harass complainants and witnesses, prematurely terminate investigations, compile reports that justify police officers' conduct regardless of actual circumstances, refuse to discipline police officers for known violations, and protect officers from outside investigations. It also charges various appellees with pursuing inadequate training practices, resulting in a pattern of police abuses, and with engaging in surveillance and harassment of critics of the police department.

The United States also alleges generally that some or all of the appellees have deliberately endeavored to encourage police violations of civil rights. It charges that these practices have been implemented with the intent and the effect of inflicting abuse disproportionately on black and Hispanic persons. And finally, it alleges that the foregoing practices have been implemented by police department personnel whose activities are funded in part by federal grants dispensed for the purpose of improving police procedures.

In its prayer for relief, the government asks for a declaration "that the acts, practices, policies and procedures alleged herein violate the Constitution and laws of the United States." It also asks the court to enjoin "the defendants, their agents, employees, successors in office, and all those acting in concert or participation with them" from engaging in the conduct alleged, "from failing or refusing to correct the effects" of that conduct, "from failing or refusing to ensure" that such conduct will not recur, "and from receiving, expending, or failing to make restitution for previously expended federal funds, unless and until defendants cease such acts, policies, practices, and procedures and correct their effects." Complaint, P 50, pp. at 34.


We first address the contention that the two criminal statutes, 18 U.S.C. §§ 241 and 242, implicitly grant the United States a § 241. Conspiracy against rights of citizens

right of action for injunctive relief. These statutes provide:

If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same ...

They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life.

§ 242. Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.

The Attorney General relies principally upon Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967), and Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), as authority for inferring a civil cause of action from the two criminal statutes. These and subsequent decisions of the Supreme Court, including Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979), and Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), establish comprehensive standards for inferring rights of action. Under these decisions the "central inquiry" and the "ultimate question" is congressional intent. Touche Ross, 442 U.S. at 575, 578, 99 S.Ct. at 2489; see also Transamerica, 444 U.S. at 15-16, 99 S.Ct. at 244; Cannon, 441 U.S. at 688, 99 S.Ct. at 1953; Cort, 422 U.S. at 80-84, 95 S.Ct. at 2089; Wyandotte, 389 U.S. at 203-04, 88 S.Ct. at 386; Glus v. G. C. Murphy Co., 629 F.2d 248, 255 (3d Cir. 1980), cert. denied --- U.S. ----, 101 S.Ct. 351, 66 L.Ed.2d 212 (1980); id. at 262-63 (Sloviter, J., dissenting); National Sea Clammers Ass'n v. City of New York, 616 F.2d 1222, 1229 (3d Cir. 1980), cert. granted, --- U.S. ----, 101 S.Ct. 314, 66 L.Ed.2d 145 (1980).


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