City of Los Angeles v. Lyons

461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675, 1983 U.S. LEXIS 152, 51 U.S.L.W. 4424

• Court: Supreme Court of the United States
• Decided: April 20, 1983
• Docket: 81-1064
• Status: Published

Opinions

Justice White

delivered the opinion of the Court.

The issue here is whether respondent Lyons satisfied the prerequisites for seeking injunctive relief in the Federal District Court.

I

This case began on February 7, 1977, when respondent, Adolph Lyons, filed a complaint for damages, injunction, and declaratory relief in the United States District Court for the Central District of California. The defendants were the City of Los Angeles and four of its police officers. The complaint alleged that on October 6, 1976, at 2 a. m., Lyons was stopped by the defendant officers for a traffic or vehicle code violation and that although Lyons offered no resistance or threat whatsoever, the Officers, without provocation or justification, seized Lyons and applied a “chokehold”¹ — either the “bar arm control” hold or the “carotid-artery control” hold or both — rendering him unconscious and causing damage to his larynx. Counts I through IV of the complaint sought damages against the officers and the City. Count V, with which we are principally concerned here, sought a preliminary and permanent injunction against the City barring the use of the control holds. That count alleged that the City’s police officers, “pursuant to the authorization, instruction and encouragement of Defendant City of Los Angeles, regularly and routinely apply these choke holds in innumerable situations where they are not threatened by the use of any deadly force whatsoever,” that numerous persons have been injured as the result of the application of the chokeholds, that Lyons and others similarly situated are threatened with irreparable injury in the form of bodily injury and loss of life, and that Lyons “justifiably fears that any contact he has with Los Angeles Police officers may result in his being choked and strangled to death without provocation, justification or other legal excuse.” Lyons alleged the threatened impairment of rights protected by the First, Fourth, Eighth, and Fourteenth Amendments. Injunctive relief was sought against the use of the control holds “except in situations where the proposed victim of said control reasonably appears to be threatening the immediate use of deadly force.” Count VI sought declaratory relief against the City, i. e., a judgment that use of the chokeholds absent the threat of immediate use of deadly force is a per se violation of various constitutional rights.

The District Court, by order, granted the City’s motion for partial judgment on the pleadings and entered judgment for the City on Counts V and VI.² The Court of Appeals reversed the judgment for the City on Counts V and VI, holding over the City’s objection that despite our decisions in O’Shea v. Littleton, 414 U. S. 488 (1974), and Rizzo v. Goode, 423 U. S. 362 (1976), Lyons had standing to seek relief against the application of the chokeholds. Lyons v. City of Los Angeles, 615 F. 2d 1243 (1980). The Court of Appeals held that there was a sufficient likelihood that Lyons would again be stopped and subjected to the unlawful use of force to constitute a case or controversy and to warrant the issuance of an injunction, if the injunction was otherwise authorized. We denied certiorari. 449 U. S. 934 (1980).

On remand, Lyons applied for a preliminary injunction. Lyons pressed only the Count V claim at this point. See n. 6, infra. The motion was heard on affidavits, depositions, and government records. The District Court found that Lyons had been stopped for a traffic infringement and that without provocation or legal justification the officers involved had applied a “Department-authorized chokehold which resulted in injuries to the plaintiff.” The court further found that the department authorizes the use of the holds in situations where no one is threatened by death or grievous bodily harm, that officers are insufficiently trained, that the use of the holds involves a high risk of injury or death as then employed, and that their continued use in situations where neither death nor serious bodily injury is threatened “is unconscionable in a civilized society.” The court concluded that such use violated Lyons’ substantive due process rights under the Fourteenth Amendment. A preliminary injunction was entered enjoining “the use of both the carotid artery and bar arm holds under circumstances which do not threaten death or serious bodily injury.” An improved training program and regular reporting and recordkeeping were also ordered.³ The Court of Appeals affirmed in a brief per curiam opinion stating that the District Court had not abused its discretion in entering a preliminary injunction. 656 F. 2d 417 (1981). We granted certiorari, 455 U. S. 937 (1982), and now reverse.

II

Since our grant of certiorari, circumstances pertinent to the case have changed. Originally, Lyons’ complaint alleged that at least two deaths had occurred as a result of the application of chokeholds by the police. His first amended complaint alleged that 10 chokehold-related deaths had occurred. By May 1982, there had been five more such deaths. On May 6,1982, the Chief of Police in Los Angeles prohibited the use of the bar-arm chokehold in any circumstances. A few days later, on May 12,1982, the Board of Police Commissioners imposed a 6-month moratorium on the use of the carotid-artery chokehold except under circumstances where deadly force is authorized.⁴

Based on these events, on June 3, 1982, the City filed in this Court a memorandum suggesting a question of mootness, reciting the facts but arguing that the case was not moot. Lyons in turn filed a motion to dismiss the writ of certiorari as improvidently granted. We denied that motion but reserved the question of mootness for later consideration. 457 U. S. 1115 (1982).

In his brief and at oral argument, Lyons has reasserted his position that in light of changed conditions, an injunctive decree is now unnecessary because he is no longer subject to a threat of injury. He urges that the preliminary injunction should be vacated. The City, on the other hand, while acknowledging that subsequent events have significantly changed the posture of this case, again asserts that the case is not moot because the moratorium is not permanent and may be lifted at any time.

We agree with the City that the case is not moot, since the moratorium by its terms is not permanent. Intervening events have not “irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U. S. 625, 631 (1979). We nevertheless hold, for another reason, that the federal courts are without jurisdiction to entertain Lyons’ claim for injunctive relief.

HH I — I l-H

It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. Ill of the Constitution by alleging an actual case or controversy. Flast v. Cohen, 392 U. S. 83, 94-101 (1968); Jenkins v. McKeithen, 395 U. S. 411, 421-425 (1969) (opinion of Marshall, J.). Plaintiffs must demonstrate a “personal stake in the outcome” in order to “assure that concrete adverseness which sharpens the presentation of issues” necessary for the proper resolution of constitutional questions. Baker v. Carr, 369 U. S. 186, 204 (1962). Abstract injury is not enough. The plaintiff must show that he “has sustained or is immediately in danger of sustaining some direct injury” as the result of the challenged official conduct and the injury or threat of injury must be both “real and immediate,” not “conjectural” or “hypothetical.” See, e. g., Golden v. Zwickler, 394 U. S. 103, 109-110 (1969); Public Workers v. Mitchell, 330 U. S. 75, 89-91 (1947); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941); Massachusetts v. Mellon, 262 U. S. 447, 488 (1923).

In O’Shea v. Littleton, 414 U. S. 488 (1974), we dealt with a case brought by a class of plaintiffs claiming that they had been subjected to discriminatory enforcement of the criminal law. Among other things, a county magistrate and judge were accused of discriminatory conduct in various respects, such as sentencing members of plaintiff’s class more harshly than other defendants. The Court of Appeals reversed the dismissal of the suit- by the District Court, ruling that if the allegations were proved, an appropriate injunction could be entered.

We reversed for failure of the complaint to allege a case or controversy. Id., at 493. Although it was claimed in that case that particular members of the plaintiff class had actually suffered from the alleged unconstitutional practices, we observed that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” Id., at 495-496. Past wrongs were evidence bearing on “whether there is a real and immediate threat of repeated injury.” Id., at 496. But the prospect of future injury rested “on the likelihood that [plaintiffs] will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners.” Ibid. The most that could be said for plaintiffs’ standing was “that if [plaintiffs] proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory practices that petitioners are alleged to have followed.” Id., at 497. We could not find a case or controversy in those circumstances: the threat to the plaintiffs was not “sufficiently real and immediate to show an existing controversy simply because they anticipate violating lawful criminal statutes and being tried for their offenses. ...” Id., at 496. It was to be assumed that “[plaintiffs] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners.” Id., at 497.

We further observed that case-or-controversy considerations “obviously shade into those determining whether the complaint states a sound basis for equitable relief,” id., at 499, and went on to hold that even if the complaint presented an existing case or controversy, an adequate basis for equitable relief against petitioners had not been demonstrated:

“[Plaintiffs] have failed, moreover, to establish the basic requisites of the issuance of equitable relief in these circumstances — the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law. We have already canvassed the necessarily conjectural nature of the threatened injury to which [plaintiffs] are allegedly subjected. And if any of the [plaintiffs] are ever prosecuted and face trial, or if they are illegally sentenced, there are available state and federal procedures which could provide relief from the wrongful conduct alleged.” Id., at 502.

Another relevant decision for present purposes is Rizzo v. Goode, 423 U. S. 362 (1976), a case in which plaintiffs alleged widespread illegal and unconstitutional police conduct aimed at minority citizens and against city residents in general. The Court reiterated the holding in O’Shea that past wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy. The claim of injury rested upon “what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman’s perception” of departmental procedures. 423 U. S., at 372. This hypothesis was “even more attenuated than those allegations of future injury found insufficient in O’Shea to warrant [the] invocation of federal jurisdiction.” Ibid. The Court also held that plaintiffs’ showing at trial of a relatively few instances of violations by individual police officers, without any showing of a deliberate policy on behalf of the named defendants, did not provide a basis for equitable relief.

Golden v. Zwickler, 394 U. S. 103 (1969), a case arising in an analogous situation, is directly apposite. Zwickler sought a declaratory judgment that a New York statute prohibiting anonymous handbills directly pertaining to election campaigns was unconstitutional. Although Zwickler had once been convicted under the statute,⁵ his sole concern related to a Congressman who had left the House of Representatives for a place on the Supreme Court of New York and who would not likely be a candidate again. A unanimous Court held that because it was “most unlikely” that Zwickler would again be subject to the statute, no case or controversy of “‘sufficient immediacy and reality’” was present to allow a declaratory judgment. Id., at 109. Just as Zwickler’s assertion that the former Congressman could be a candidate for Congress again was “hardly a substitute for evidence that this is a prospect of ‘immediacy and reality,’” ibid., Lyons’ assertion that he may again be subject to an illegal chokehold does not create the actual controversy that must exist for a declaratory judgment to be entered.

We note also our per curiam opinion in Ashcroft v. Mattis, 431 U. S. 171 (1977). There, the father of a boy who had been killed by the police sought damages and a declaration that the Missouri statute which authorized police officers to use deadly force in apprehending a person who committed a felony was unconstitutional. Plaintiff alleged that he had another son, who “‘if ever arrested or brought under an attempt at arrest on suspicion of a felony, might flee or give the appearance of fleeing, and would therefore be in danger of being killed by these defendants or other police officers ....’” Id., at 172, n. 2. We ruled that “[s]uch speculation is insufficient to establish the existence of a present, live controversy.” Id., at 173, n. 2.

IV

No extension of O Shea and Rizzo is necessary to hold that respondent Lyons has failed to demonstrate a case or controversy with the City that would justify the equitable relief sought.⁶ Lyons’ standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers. Count V of the complaint alleged the traffic stop and choking incident five months before. That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part. The additional allegation in the complaint that the police in Los Angeles routinely apply chokeholds in situations where they are not threatened by the use of deadly force falls far short of the allegations that would be necessary to establish a case or controversy between these parties.

In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los An-geles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such manner. Although Count V alleged that the City authorized the use of the control holds in situations where deadly force was not threatened, it did not indicate why Lyons might be realistically threatened by police officers who acted within the strictures of the City’s policy. If, for example, chokeholds were authorized to be used only to counter resistance to an arrest by a suspect, or to thwart an effort to escape, any future threat to Lyons from the City’s policy or from the conduct of police officers would be no more real than the possibility that he would again have an encounter with the police and that either he would illegally resist arrest or detention or the officers would disobey their instructions and again render him unconscious without any provocation.⁷

Under O’Shea and Rizzo, these allegations were an insufficient basis to provide a federal court with jurisdiction to entertain Count V of the complaint.⁸ This was apparently the conclusion of the District Court in dismissing Lyons’ claim for injunctive relief. Although the District Court acted without opinion or findings, the Court of Appeals interpreted its action as based on lack of standing, i. e., that under O’Shea and Rizzo, Lyons must be held to have made an “insufficient showing that the police were likely to do this to the plaintiff again.” 615 F. 2d, at 1246. For several reasons — each of. them infirm, in our view — the Court of Appeals thought reliance on O’Shea and Rizzo was misplaced and reversed the District Court.

First, the Court of Appeals thought that Lyons was more immediately threatened than the plaintiffs in those cases since, according to the Court of Appeals, Lyons need only be stopped for a minor traffic violation to be subject to the strangleholds. But even assuming that Lyons would again be stopped for a traffic or other violation in the reasonably near future, it is untenable to assert, and the complaint made no such allegation, that strangleholds are applied by the Los Angeles police to every citizen who is stopped or arrested regardless of the conduct of the person stopped. We cannot agree that the “odds,” 615 F. 2d, at 1247, that Lyons would not only again be stopped for a traffic violation but would also be subjected to a chokehold without any provocation whatsoever are sufficient to make out a federal case for equitable relief. We note that five months elapsed between October 6, 1976, and the filing of the complaint, yet there was no allegation of further unfortunate encounters between Lyons and the police.

Of course, it may be that among the countless encounters between the police and the citizens of a great city such as Los Angeles, there will be certain instances in which strangleholds will be illegally applied and injury and death unconstitutionally inflicted on the victim. As we have said, however, it is no more than conjecture to suggest that in every instance of a traffic stop, arrest, or other encounter between the police and a citizen, the police will act unconstitutionally and inflict injury without provocation or legal excuse. And it is surely no more than speculation to assert either that Lyons himself will again be involved in one of those unfortunate instances, or that he will be arrested in the future and provoke the use of a chokehold by resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury.

Second, the Court of Appeals viewed O’Shea and Rizzo as cases in which the plaintiffs sought “massive structural” relief against the local law enforcement systems and therefore that the holdings in those cases were inapposite to cases such as this where the plaintiff, according to the Court of Appeals, seeks to enjoin only an “established,” “sanctioned” police practice assertedly violative of constitutional rights. O’Shea and Rizzo, however, cannot be so easily confined to their facts. If Lyons has made no showing that he is realistically threatened by a repetition of his experience of October 1976, then he has not met the requirements for seeking an injunction in a federal court, whether the injunction contemplates intrusive structural relief or the cessation of a discrete practice.

The Court of Appeals also asserted that Lyons “had a live and active claim” against the City “if only for a period of a few seconds” while the stranglehold was being applied to him and that for two reasons the claim had not become moot so as to disentitle Lyons to injunctive relief: First, because under normal rules of equity, a case does not become moot merely because the complained of conduct has ceased; and second, because Lyons’ claim is “capable of repetition but evading review” and therefore should be heard. We agree that Lyons had a live controversy with the City. Indeed, he still has a claim for damages against the City that appears to meet all Art. Ill requirements. Nevertheless, the issue here is not whether that claim has become moot but whether Lyons meets the preconditions for asserting an injunctive claim in a federal forum. The equitable doctrine that cessation of the challenged conduct does not bar an injunction is of little help in this respect, for Lyons’ lack of standing does not rest on the termination of the police practice but on the speculative nature of his claim that he will again experience injury as the result of that practice even if continued.

The rule that a claim does not become moot where it is capable of repetition, yet evades review, is likewise inapposite. Lyons’ claim that he was illegally strangled remains to be litigated in his suit for damages; in no sense does that claim “evade” review. Furthermore, the capable-of-repetition doctrine applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality. DeFunis v. Odegaard, 416 U. S. 312, 319 (1974). As we have indicated, Lyons has not made this demonstration.

The record and findings made on remand do not improve Lyons’ position with respect to standing. The District Court, having been reversed, did not expressly address Lyons’ standing to seek injunctive relief, although the City was careful to preserve its position on this question. There was no finding that Lyons faced a real and immediate threat of again being illegally choked. The City’s policy was described as authorizing the use of the strangleholds “under circumstances where no one is threatened with death or grievous bodily harm.” That policy was not further described, but the record before the court contained the department’s existing policy with respect to the employment of chokeholds. Nothing in that policy, contained in a Police Department manual, suggests that the chokeholds, or other kinds of force for that matter, are authorized absent some resistance or other provocation by the arrestee or other suspect.⁹ On the contrary, police officers were instructed to use chokeholds only when lesser degrees of force do not suffice and then only “to gain control of a suspect who is violently resisting the officer or trying to escape.” App. 230.

Our conclusion is that the Court of Appeals failed to heed O’Shea, Rizzo, and other relevant authority, and that the District Court was quite right in dismissing Count V.

V

Lyons fares no better if it be assumed that his pending damages suit affords him Art. Ill standing to seek an injunction as a remedy for the claim arising out of the October 1976 events. The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again — a “likelihood of substantial and immediate irreparable injury.” O’Shea v. Littleton, 414 U. S., at 502. The speculative nature of Lyons’ claim of future injury requires a finding that this prerequisite of equitable relief has not been fulfilled.

Nor will the injury that Lyons allegedly suffered in 1976 go unrecompensed; for that injury, he has an adequate remedy at law. Contrary to the view of the Court of Appeals, it is not at all “difficult” under our holding “to see how anyone can ever challenge police or similar administrative practices.” 615 F. 2d, at 1250. The legality of the violence to which Lyons claims he was once subjected is at issue in his suit for damages and can be determined there. -

Absent a sufficient likelihood that he will again be wronged in a similar way, Lyons is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by .any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional. Cf. Warth v. Seldin, 422 U. S. 490 (1975); Schlesinger v. Reservists to Stop the War, 418 U. S. 208 (1974); United States v. Richardson, 418 U. S. 166 (1974). This is not to suggest that such undifferentiated claims should not be taken seriously by local authorities. Indeed, the interest of an alert and interested citizen is an essential element of an effective and fair government, whether on the local, state, or national level.¹⁰ A federal court, however, is not the proper forum to press such claims unless the requirements for entry and the prerequisites for injunctive relief are satisfied.

We decline the invitation to slight the preconditions for equitable relief; for as we have held, recognition of the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administration of the States’ criminal laws in the absence of irreparable injury which is both great and immediate. O’Shea, supra, at 499; Younger v. Harris, 401 U. S. 37, 46 (1971). Mitchum v. Foster, 407 U. S. 225 (1972), held that suits brought under 42 U. S. C. § 1983 are exempt from the flat ban against the issuance of injunctions directed at state-court proceedings, 28 U. S. C. §2283. But this holding did not displace the normal principles of equity, comity, and federalism that should inform the judgment of federal courts when asked to oversee state law enforcement authorities. In exercising their equitable powers federal courts must recognize “[t]he special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” Stefanelli v. Minard, 342 U. S. 117, 120 (1951); O’Shea v. Littleton, supra, at 500. See also Rizzo v. Goode, 423 U. S., at 380; Cleary v. Bolger, 371 U. S. 392 (1963); Wilson v. Schnettler, 365 U. S. 381 (1961); Pugach v. Dollinger, 365 U. S. 458 (1961). The Court of Appeals failed to apply these factors properly and therefore erred in finding that the District Court had not abused its discretion in entering an injunction in this case.

As we noted in O’Shea, 414 U. S., at 503, withholding in-junctive relief does not mean that the “federal law will exercise no deterrent effect in these circumstances.” If Lyons has suffered an injury barred by the Federal Constitution, he has a remedy for damages under § 1983. Furthermore, those who deliberately deprive a citizen of his constitutional rights risk conviction under the federal criminal laws. Ibid.

Beyond these considerations the state courts need not impose the same standing or remedial requirements that govern federal-court proceedings. The individual States may permit their courts to use injunctions to oversee the conduct of law enforcement authorities on a continuing basis. But this is not the role of a federal court, absent far more justification than Lyons has proffered in this case.

The judgment of the Court of Appeals is accordingly

Reversed.

1 The police control procedures at issue in this case are referred to as “control holds,” “chokeholds,” “strangleholds,” and “neck restraints.” All these terms refer to two basic control procedures: the “carotid” hold and the “bar arm” hold. In the “carotid” hold, an officer positioned behind a subject places one arm around the subject’s neck and holds the wrist of that arm with his other hand. The officer, by using his lower forearm and bicep muscle, applies pressure concentrating on the carotid arteries located on the sides of the subject’s neck. The “carotid” hold is capable of rendering the subject unconscious by diminishing the flow of oxygenated blood to the brain. The “bar arm” hold, which is administered similarly, applies pressure at the front of the subject’s neck. “Bar arm” pressure causes pain, reduces the flow of oxygen to the lungs, and may render the subject unconscious.

2 The order also gave judgment for the City on Count II insofar as that Count rested on the First and Eighth Amendments, as well as on Count VII, which sought a declaratory judgment that the City Attorney was not authorized to prosecute misdemeanor charges. It appears from the record on file with this Court that Counts III and IV had previously been dismissed on motion, although they reappeared in an amended complaint filed after remand from the Court of Appeals.

3 By its terms, the injunction was to continue in force until the court approved the training program to be presented to it. It is fair to assume that such approval would not be given if the program did not confine the use of the strangleholds to those situations in which their use, in the view of the District Court, would be constitutional. Because of successive stays entered by the Court of Appeals and by this Court, the injunction has not gone into effect.

4 The Board of Police Commissioners directed the Los Angeles Police Department (LAPD) staff to use and assess the effectiveness of alternative control techniques and report its findings to the Board every two months. Prior to oral argument in this case, two such reports had been submitted, but the Board took no further action. On November 9, 1982, the Board extended the moratorium until it had the “opportunity to review and evaluate” a third report from the Police Department. Insofar as we are advised, the third report has yet to be submitted.

5 Zwickler’s conviction was reversed on state-law grounds. 394 U. S., at 105.

6 The City states in its brief that on remand from the Court of Appeals’ first judgment “[t]he parties agreed and advised the district court that the respondent’s damages claim could be severed from his effort to obtain equitable relief.” Brief for Petitioner 8, n. 7. Respondent does not suggest otherwise. This case, therefore, as it came to us, is on all fours with O’Shea and should be judged as such.

7 The centerpiece of Justice Marshall’s dissent is that Lyons had standing to challenge the City’s policy because to recover damages he would have to prove that what allegedly occurred on October 6, 1976, was pursuant to city authorization. We agree completely that for Lyons to succeed in his damages action, it would be necessary to prove that what happened to him — that is, as alleged, he was choked without any provocation or legal excuse whatsoever — was pursuant to a city policy. For several reasons, however, it does not follow that Lyons had standing to seek the injunction prayed for in Count V.

First, Lyons alleges in Count II of his first amended complaint that on October 6, 1976, the officers were carrying out official policies of the City. That allegation was incorporated by reference in Count V. That policy, however, is described in paragraphs 20 and 23 of Count V as authorizing the use of chokeholds “in situations where [the officers] are threatened by far less than deadly force.” This is not equivalent to the unbelievable assertion that the City either orders or authorizes application of the choke-holds where there is no resistance or other provocation.

Second, even if such an allegation is thought to be contained in the complaint, it is belied by the record made on the application for preliminary injunction.

Third, even if the complaint must be read as containing an allegation that officers are authorized to apply the chokeholds where there is no resistance or other provocation, it does not follow that Lyons has standing to seek an injunction against the application of the restraint holds in situations that he has not experienced, as for example, where the suspect resists arrest or tries to escape but does not threaten the use of deadly force. Yet that is precisely the scope of the injunction that Lyons prayed for in Count V.

Fourth, and in any event, to have a case or controversy with the City that could sustain Count V, Lyons would have to credibly allege that he faced a realistic threat from the future application of the City’s policy. Justice Marshall nowhere confronts this requirement — the necessity that Lyons demonstrate that he, himself, will not only again be stopped by the police but will also be choked without any provocation or legal excuse. Justice Marshall plainly does not agree with that requirement, and he was in dissent in O’Shea v. Littleton. We are at issue in that respect.

8 As previously indicated, supra, at 98, Lyons alleged that he feared he would be choked in any future encounter with the police. The reasonableness of Lyons’ fear is dependent upon the likelihood of a recurrence of the allegedly unlawful conduct. It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff’s subjective apprehensions. The emotional consequences of a prior act simply are not a sufficient basis for an injunction absent a real and immediate threat of future injury by the defendant. Of course, emotional upset is a relevant consideration in a damages action.

9 The dissent notes that a LAPD training officer stated that the police are authorized to employ the control holds whenever an officer “feels” that there is about to be a bodily attack. Post, at 118. The dissent’s emphasis on the word “feels” apparently is intended to suggest that LAPD officers are authorized to apply the holds whenever they “feel” like it. If there is a distinction between permitting the use of the holds when there is a “threat” of serious bodily harm, and when the officer “feels” or believes there is about to be a bodily attack, the dissent has failed to make it clear. The dissent does not, because it cannot, point to any written or oral pronouncement by the LAPD or any evidence showing a pattern of police behavior that would indicate that the official policy would permit the application of the control holds on a suspect who was not offering, or threatening to offer, physical resistance.

10 The City’s memorandum suggesting a question of mootness informed the Court that the use of the control holds had become “a major civic controversy” and that in April and May 1982 “a spirited, vigorous, and at times emotional debate” on the issue took place. The result was the current moratorium on the use of the holds.