Williams v. Alioto

• Decision Date: 25 January 1977
• Docket Number: No. 74-2149,74-2149
• Citation: 549 F.2d 136
• Parties: Joseph B. WILLIAMS and Leo Bazille et al., Plaintiffs-Appellees, v. Joseph L. ALIOTO et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 136

549 F.2d 136

Joseph B. WILLIAMS and Leo Bazille et al., Plaintiffs-Appellees, v. Joseph L. ALIOTO et al., Defendants-Appellants.

No. 74-2149.

United States Court of Appeals, Ninth Circuit.

Jan. 25, 1977.

George P. Agnost, Deputy City Atty. (argued), San Francisco, Cal., for defendants-appellants.

Jerome B. Falk, Jr. (argued), San Francisco, Cal., for plaintiffs-appellees.

Before TRASK and GOODWIN, Circuit Judges, and BOHANON, ^* District judge.

TRASK, Circuit Judge:

This is an appeal from an order of the district court of the Northern District of California that preliminarily enjoined officials of the San Francisco Police Department from continuing certain practices of "Operation Zebra," a program involving the stopping, frisking, and questioning of black males who resembled an unapprehended murderer. Jurisdiction to hear this appeal is based upon 28 U.S.C. §§ 1291, 1292(a)(1). Because there is no longer a case or controversy under Article III of the Constitution, we dismiss the appeal as moot and vacate the judgment of the district court.

I.

Between December 1973 and April 1974, a series of unsolved murders and attempted murders terrorized the City of San Francisco. All 17 victims were white; witnesses and surviving victims described the assailant or assailants as black, male, and 20 to 30 years of age. No apparent motive existed for the shootings, which occurred during the evening hours at various locations in the City. ¹ According to the statements of some city officials, tensions were developing that created a danger of racial conflict and violence.

The San Francisco Police Department initiated a special investigation of the crimes, assigning the letter "Z" and the code name "Zebra" to the shootings. Because of the failure of traditional, although intensified, law enforcement techniques to apprehend the murderer, the Department decided to implement a saturation campaign designed to identify and capture the killer. On April 17, 1974, Captain Taylor issued an intradepartmental memorandum describing the nature of "Operation Zebra." All officers on patrol were authorized to "stop those persons who fit the description of the suspects, making a pat search of their person for possible weapons, (after which) a Field Interrogation Card shall be completed." Plaintiffs' Exhibit No. 1. The description or "profile" consisted of two parts. First, two composite sketches of the suspect prepared from eyewitness descriptions were included in the profile. Second, Taylor's directive supplemented these drawings with a general description of the "Zebra killer" and his modus operandi :

"These murders have been committed by:

One or two Black males

20 to 30 years old

5 foot 8 to 6 foot

Slender to medium build

On foot or in a passenger vehicle

Armed with a 32 ca. automatic between the hours of 2000 to 2300." Id.

The directive did not indicate that the officers were expected to consider a person's behavior as a factor in deciding whether to stop him.

During the period from April 18, 1974, to April 23, 1974, police officials issued several more directives relating to Operation Zebra. An April 18 verbal order by Captain Barca to a special Operation Zebra detail and two written orders from Police Chief Scott, dated April 19 and April 22, created some confusion over whether the Operation Zebra frisks were mandatory or discretionary. All three orders indicated that stops could continue being made on the sole basis of resemblance to the profile, however. An April 23 memorandum from Barca to the special Zebra Command stated:

"From now on, be more selective when making stops. Make them when the individual (not only resembles the profile but) is acting, or appears to be, out of the ordinary." Plaintiffs' Exhibit No. 7.

No evidence indicates that this directive applied to ordinary patrol officers, a much larger group.

On April 25, 1974, Chief Scott issued another order, the "Revised Zebra Guidelines," directed to the entire Police Department and superseding prior oral and written instructions. With some additions, the revised guidelines, like earlier memoranda, contained a list of the suspect's physical characteristics and modus operandi, and referred officers to the composite drawings of the killer. The guidelines also contained detailed provisions regulating the nature of contacts, stops, police conduct during stops, frisks, and frisk procedures. In its section on stops, the guidelines provided a "list (containing) . . . some factors which alone or in combination may be sufficient to establish 'reasonable suspicion' for a stop." Defendants' Exhibit E at 3 (emphasis in original). These factors included, inter alia, the suspect's appearance ("Does he generally fit the description of the person wanted for the particular offense being investigated?"), the time of day and area of the stop, the officer's prior knowledge and source of information about the suspect, and the suspect's pattern of conduct ("Does the person's conduct resemble the pattern of conduct or modus operandi followed in the Zebra assaults?"). Id. at 3-4. The guidelines cautioned that an officer could make a stop only on the basis of specific, articulable facts which justified him in believing that a crime had been committed by the person stopped. ²

The guidelines stated that frisks were discretionary: "A law enforcement officer may frisk any person whom he has stopped when the officer reasonably suspects that the person is carrying a concealed weapon or dangerous instrument and that a frisk is necessary to protect himself or others." Defendants' Exhibit E at 5-6. Factors which alone or in combination justified a frisk included the person's appearance ("Do his clothes bulge in a manner suggesting the presence of an object capable of inflicting injury?"), his actions, the officer's prior knowledge about the suspect, and the time of day and location of the stop. Id. at 6. The guidelines did not indicate that a frisk could be made on the sole basis of the suspect's resemblance to the composite drawings.

On April 19, 1974, and April 22, 1974, several days before the issuance of the revised guidelines, plaintiffs brought class actions seeking declaratory and injunctive relief from alleged Fourth Amendment violations of the Zebra program. They brought the actions on behalf of all black males who were stopped or subject to being stopped pursuant to the directives. For purposes of an evidentiary hearing and a ruling on the motions for declaratory and injunctive relief, the court consolidated the cases.

On April 25, 1974, shortly after the promulgation of the revised guidelines, the district court ended its evidentiary hearing, entered its findings of fact and conclusions of law, and issued a preliminary injunction. In its findings of fact, the court stated that the directives and memoranda issued between April 17, 1974, and April 22, 1974, were similar in their authorization "that officers stop black male individuals physically resembling two composite drawings . . . and having other general physical characteristics (described in the directives), although such individuals exhibited no other characteristics or activities that could lead a reasonable officer to believe that the particular individual had engaged in or was presently engaging in criminal activity." C.T. at 91-92. ³ As to the April 25 revised guidelines, the court found that, despite their detailed provisions regulating stopping and frisking, they continued to "authorize a forcible stop on no more than a determination that the subject 'fit(s) the description of the persons wanted' for the Zebra slayings. . . ." C.T. at 93. The court also observed that in the eight day period from April 17 to April 25, over 600 black males were stopped pursuant to Operation Zebra.

The court concluded that "(t)he forcible stoppings of individuals (pursuant to both the original Zebra directives and their successive modifications) upon the ground of resemblance to the suspect . . . and portrayed in the composite drawings . . . without additional reliable evidence which, judged objectively, presents sufficient indicia of reliability to warrant a reasonable police officer in concluding that the particular individual stopped has committed or is committing a criminal offense, violates the Fourth and Fourteenth Amendments to the Constitution of the United States." C.T. at 95. It also held that the revised guidelines of April 25, "to the extent that they continue to authorize and direct the forcible stop of large numbers of black male persons who fit the general description contained therein and in the aforesaid composite drawings without additional reliable evidence" giving a police officer reasonable suspicion to conclude that an individual has committed a crime, were unconstitutional. Id. The court held that the pat-down searches were unconstitutional because "the stoppings are unconstitutional . . . and . . . the pat-down searches are made without reasonable grounds to believe that the particular person patted down is armed and dangerous." Id. (citations omitted.)

The preliminary injunction enjoined the San Francisco Police Department from "(f)orcibly stopping on the street any person on the ground that such person appears to be within the so-called 'profile' of the suspected 'Zebra' killer unless other independent evidence (such as the conduct of the suspect) known to the officer create a reasonable suspicion that such person had committed or is committing a crime." C.T. at 100. It also enjoined pat-searching and the preparation of field interrogation cards in the absence of similar independent evidence.

On April 26, 1974, after the district court denied their motion for a stay of the injunction pending appeal, defendants filed a notice of appeal to this court. The substantive issue on appeal is whether Operation Zebra violated the Fourth Amendment prohibition against unreasonable searches and seizures. As a...