Ward v. City of Portland

• Citation: 857 F.2d 1373
• Decision Date: 21 December 1988
• Docket Number: No. 87-3630,87-3630
• Parties: Craig WARD, C.W. Jensen, and Portland Police Association, Plaintiffs- Appellants, v. CITY OF PORTLAND and Robert Aichele, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1373

857 F.2d 1373

Craig WARD, C.W. Jensen, and Portland Police Association, Plaintiffs- Appellants, v. CITY OF PORTLAND and Robert Aichele, Defendants-Appellees.

No. 87-3630.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 1988.

Decided Sept. 29, 1988.

As Amended Dec. 21, 1988.

James S. Coon, Imperati, Barnett, Sherwood & Coon, P.C., Portland, Or., for plaintiffs-appellants.

Harry Auerbach, Deputy City Atty., Portland, Or., for defendants-appellees.

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

Before HUG, FLETCHER and NELSON, Circuit Judges.

HUG, Circuit Judge:

Two police officers and the Portland Police Association ("Association") brought this action for declaratory and injunctive relief under 42 U.S.C. Sec. 1983 against their employer, the City of Portland, Oregon, and Police Captain Aichele. Plaintiffs challenge the constitutionality of a City policy that requires officers who are involved in fatal shootings to write incident reports before consulting with counsel provided by the Association. The district court granted the defendants' motion to dismiss, finding that the case failed to present a justiciable controversy. We reverse and remand this case to the district court.

I.

On January 19, 1985 Portland police officers Ward and Jensen were involved in a fatal shooting in the course of their duties. They notified William Aitchison, an attorney who was on retainer to the Association, an organization representing all Portland police officers.

The two officers were able to confer with Attorney Aitchison at the precinct for only a short while before Police Captain Aichele arrived. Captain Aichele removed Mr. Aitchison from the room over the officers' protest in order that the two officers could be questioned about the shooting incident and complete reports on it without the benefit of legal counsel retained by the Association.

The captain took this action pursuant to Portland Police Bureau policy, which requires officers to write reports on incidents involving use of deadly force before consulting counsel. In this case the officers complied with the policy against their will. Later it was determined that the officers' use of deadly force during the incident was proper. Accordingly, they suffered no disciplinary action or criminal prosecution.

The officers and the Association filed this action, alleging several constitutional violations flowing from the policy disallowing officers to consult with the attorney prior to writing reports on fatal shooting incidents. Specifically, they alleged violations of the First Amendment right of association, the Fifth Amendment right against self-incrimination, and the Fourteenth Amendment right to equal protection. The district court dismissed the action, finding that the complaint failed to present a justiciable controversy. The plaintiffs appealed. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and our review is de novo. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 549 (9th Cir.1984). ¹

II.

In finding that there was no justiciable controversy, the district court relied on an earlier decision of this court, Portland Police Ass'n v. City of Portland, 658 F.2d 1272 (9th Cir.1981). In that case the Association sought an injunction against enforcement of the same policy that is at issue here. At that time, however, the policy had never been applied to deny counsel to a Portland police officer who had requested counsel before making a report of a fatal shooting incident in which he had been involved. We held that the complaint did not present a justiciable controversy, stating that "[b]efore 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." ' " Id. at 1273, citing O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). Noting that no police officer had been involuntarily deprived of counsel under the policy, we found the Association's claim was not ripe for judicial intervention as the claim was too speculative. Portland Police Ass'n, 658 F.2d at 1273-74.

In arriving at our holding, we looked to the O'Shea case, where nineteen plaintiffs brought a class action challenging the constitutionality of certain bail-setting and sentencing practices. O'Shea, 414 U.S. at 490-92, 94 S.Ct. at 673-74. None of those plaintiffs, however, could allege any specific injury to them resulting from the challenged practices. Id. at 495, 94 S.Ct. at 676. Rather, as the Court noted, the plaintiffs were several steps removed from being affected by the practices they challenged. The Court reasoned that, to allege the necessary injury, it was necessary to assume a series of contingencies; namely, that the plaintiffs would violate the law, be charged, tried in proceedings before the defendants, and be subjected to the particular challenged practices. Id. at 497, 94 S.Ct. at 676. The Court found that anticipating whether those events would, in fact, occur would lead it "into the area of speculation and conjecture." Id. Thus, it held the case was not ripe for review. Id. at 499, 94 S.Ct. at 677.

In Portland Police Ass'n, we noted that the allegations of the Association were even more speculative than those in O'Shea. Portland Police Ass'n, 658 F.2d at 1274. We listed a series of contingencies to illustrate the speculative nature of the claim. We stated:

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.

Id. We held that the Association's claim was "abstract at best" because the Association could "neither offer any history of alleged deprivations, nor assert with assurance that counsel will not be provided in the future." Id.

Here, the district court concluded that no justiciable controversy existed because the final event mentioned in our earlier list of contingencies was not present: Officers Ward and Jensen were not disciplined and were not subject to criminal prosecution as a result of any statements made during the report process in the absence of counsel.

The list of contingencies in our prior opinion, however, was not intended as an absolute predetermined list of requirements that must be fulfilled in order for any future action to be considered ripe for determination. There, we were concerned only with the facts of that case in which no application of the policy had yet occurred. It is apparent that the list of contingencies was intended to be illustrative of many speculative events that had not happened. Our only point there was that the police policy had not as yet been applied, and until it was applied it was too speculative to determine the consequences.

At this juncture, many of the postulated events have occurred. The officers were involved in a fatal shooting; they did seek the services of the Association's counsel, and the policy was applied to require that the officers' reports be submitted without the assistance of that counsel. The officers and the Association certainly had a claim for injunctive relief that was ripe at the time the officers sought the services of counsel and...