Washington Free Community, Inc. v. Wilson, 71-2008.

• Decision Date: 16 May 1973
• Docket Number: No. 71-2008.,71-2008.
• Citation: 157 US App. DC 360,484 F.2d 1078
• Parties: The WASHINGTON FREE COMMUNITY, INC., et al., Paul Becker, Appellant, v. Jerry V. WILSON, Chief of Police, Metropolitan Police, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

157 US App. DC 360, 484 F.2d 1078 (1973)

The WASHINGTON FREE COMMUNITY, INC., et al., Paul Becker, Appellant, v. Jerry V. WILSON, Chief of Police, Metropolitan Police, et al.

No. 71-2008.

United States Court of Appeals, District of Columbia Circuit.

Argued June 7, 1972.

Decided May 16, 1973.

Rehearing Denied November 5, 1973.

Curtis E. Van Kann, Washington, D. C., with whom Ralph J. Temple, Washington, D. C., was on the brief, for appellant.

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

Before BAZELON, Chief Judge, and McGOWAN and TAMM, Circuit Judges.

McGOWAN, Circuit Judge:

The suit giving rise to this appeal was filed in the District Court nearly four years ago, seeking relief from allegedly unlawful conduct by law enforcement agencies in the District of Columbia. Partial relief was forthcoming after a trial on the merits.¹ This appeal challenges the denial of other relief, primarily injunctive, sought by the litigants. For the reasons set forth below, we affirm the order of the District Court.

I

On July 11, 1969, Washington Free Community, Inc., corporate publisher of a self-styled bi-weekly "underground" newspaper known as the Washington Free Press, and its President Hastings and Vice President Weber, both of whom also served as street vendors of the paper, brought suit against then Chief Layton and Acting Chief Wilson of the District of Columbia Metropolitan Police, and Chief Wright of the United States Park Police, for deprivation of their civil rights. The complaint alleged that the police authorities had, since February, 1969, been engaged in a continuing and tolerated pattern of harassment and intimidation of the Free Press and its vendors. Charging that such actions constituted a denial of both their First Amendment rights to freedom of speech and the press, and their Fifth Amendment right to equal protection of the law,² those plaintiffs sought (1) a declaration under 28 U.S.C. § 2201 (1970) that the acts complained of were violative of those constitutional rights, (2) injunctive relief under 42 U.S.C. § 1983 (1970) to prohibit defendants' interference with the publication, circulation, and distribution of the Free Press and to require defendants to issue written directives to the same effect and subsequently to submit evidence of compliance therewith, and (3) compensatory and punitive damages.

Accompanying the complaint was an application for a temporary restraining order and a motion for a preliminary injunction, with affidavits in support thereof. The District Court denied the application on July 25, 1969, and the motion on August 1, 1969 (the day Chief Wilson officially replaced Chief Layton). In December, 1969, we affirmed the denial of preliminary relief. See note 1 supra.

In September, 1970, plaintiffs' motion of July, 1970 to amend their complaint was granted. The amendment added as parties plaintiff, the Quicksilver Times, Inc., corporate publisher of the underground newspaper Quicksilver Times, its President, one Becker, who was also an editor, reporter, and vendor of the Times, and staff member Jaillet of yet another such newspaper, the Washington Area Free Press; and as parties defendant one Drescher, a former Metropolitan Police Officer, and the District of Columbia. The relief requested was altered in that (1) the corporate plaintiffs sought certification to represent the class of corporate publishers similarly situated, and the individual plaintiffs sought to represent editors, reporters and vendors similarly situated; (2) the prayer for declaratory relief was revised to include a declaration of the unconstitutionality of a Department of Interior regulation, 36 C.F.R. § 50.24, enforcement of which would have allegedly resulted in the continuation of the Park Police actions complained of; and (3) the prayer for money damages in the original complaint was replaced by a similar prayer, under 42 U.S.C. § 1983 (1970), by Quicksilver and Becker against Drescher and the District for an allegedly wrongful arrest of Becker by Drescher which was said to have violated important rights of these plaintiffs and to have flowed from negligent training and supervision of Drescher by the District.

A two-day trial was held in June, 1971, with respect to that part of the amended complaint directed against the Metropolitan Police (hereinafter Police), Drescher, and the District.³ The trial court denied all relief sought against the Police. Washington Free Community, Inc. v. Wilson, 334 F.Supp. 77, 79-81 (D.D.C.1971). Plaintiffs moved for a new trial to present new evidence to support their claim against the Police, or alternatively for a vacation of that part of the judgment concerning the Police in light of the new evidence. The motion was denied in October, 1971, and this appeal was brought from the denial of that motion and the order denying the equitable relief sought against the Police.⁴

The relief requested from this court by the appellant (see note 4 supra) is a reversal of the judgment of the District Court with directions that a restraining injunction shall issue against appellee and members of his force to prevent the asserted denial of appellant's constitutional rights. This request reflects appellant's acknowledgment that it is injunctive, not declaratory, relief that is the primary objective of the litigation. Appellant seeks this remedy in reliance upon 42 U.S.C. § 1983, which provides in part that those who, under color of the law of any State or Territory, deprive a party of his constitutional rights, shall be liable to that party in a suit in equity.

The Supreme Court has recently ruled that the District of Columbia is not a "State or Territory" within the meaning of Section 1983. District of Columbia v. Carter, 409 U.S. 418, 93 S. Ct. 602, 34 L.Ed.2d 613 (1973). Appellant therefore does not state a cause of action over which the District Court, by virtue of 28 U.S.C. § 1343(3) (1970), may exercise jurisdiction. Our analysis proceeds, however, on the assumption that appellant by complaint amendment could properly invoke that court's jurisdiction and state a claim upon which injunctive relief could be granted.⁵

II

We begin our inquiry by reference to our recent reaffirmation of the principle that

in order for a court to grant an injunction against police action there should be a showing that there is a substantial risk that future violations will occur. In order to show a substantial likelihood of future conduct, a clear pattern of harassment must be shown.

Long v. District of Columbia, 152 U.S. App. D.C. 187, 469 F.2d 927, 932 (1972). And we are further guided by the more general consideration expressed by Mr. Justice Frankfurter who, in writing for a unanimous Court, stated:

The history of equity jurisdiction is the history of regard for public consequences in employing the extra-ordinary remedy of the injunction. . . . Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies. . . .

Railroad Commn. of Texas v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941).

While the latter proposition was stated in the context of a federal court's abstention from constitutional adjudication when an alternate resolution in a state forum was available, it appears clear that similar compelling considerations operate in contemplating federal injunctive intervention into the operations of a local police force,⁶ where a balance must be struck between the role of federal courts in preserving constitutional rights and the independent initiative of local officials to accomplish the same end in a manner of their choosing. See, e. g., Lankford v. Gelston, 364 F.2d 197, 201 (4th Cir. en banc, 1966). "Such relief must not be granted lightly, for unduly obtrusive or hasty judicial intervention can undermine the important values of police self-restraint and self-respect." Long, supra, 469 F.2d at 934 (Wright, J., concurring). We think the facts of the present case provide good reason for the self-denying discretion exercised by the District Court.

In order to establish a pattern of illegal police conduct and toleration of such conduct by the police hierarchy sufficient to warrant a finding of likely future violations requiring equitable relief, appellant's original complaint was accompanied by the affidavits of approximately twenty individuals setting forth episodes of police encounters with Free Press vendors ranging from a Virginia arrest for solicitation without a license to a Maryland conviction for possession of, and intent to distribute, obscene matter. Eleven such affidavits set forth approximately fifteen encounters with the Metropolitan Police, including at least five wherein the dispute centered around the belief of the officers involved that the vendors were unlawfully engaged in vending without a license. D.C.Code § 47-2336 (1967).⁷ Three of those affidavits related instances of Police direction to vendors to "move on."

In its aforementioned denial of the preliminary injunction, the District Court considered, along with these affidavits, a May 15, 1969 letter from counsel for Free Press vendors to then Chief Layton requesting that alleged vendor harassment and spurious arrests cease, and that a directive be issued to insure that caution be taken in decisions to arrest vendors. Chief Layton's July 11, 1969 reply stated that an investigation revealed no evidence of police misconduct, and that the requested directive would be superfluous in view of standing instructions concerning proper arrest procedures.

At trial, appellant introduced the eleven affidavits mentioned above, as well as the testimony of eight other witnesses —at least four of whom described situations entailing uncertainty over the applicability of the vending...