Portland Police Ass'n v. City of Portland ex rel. Bureau of Police

658 F.2d 1272

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 23, 1981
• Docket: No. 79-4292
• Status: Published

Opinions

KENNEDY, Circuit Judge:

The Portland Police Association (PPA) and its President brought suit in district court for an injunction against enforcement of an order by the Chief of the Bureau of Police of the City of Portland. In essence, the Chief’s order states that after a “major incident,” such as the discharge of a firearm or an on-duty automobile collision, the Portland police officer involved must “completely document his/her actions” in official reports before going off duty. It further states that “[ojfficers involved in such incidents do not, at the time of creating such official reports, have the right to consult with an attorney. .. . ” The order provides, however, for provision of counsel if the officer’s superiors or the police legal advisor believe that the officer may be exposed to criminal liability or employment sanctions. Peters and the PPA challenge the portion of the order which limits the right to consult counsel before writing the report, and they seek relief under 42 U.S.C. § 1983. They allege that the order violates their privilege against self-incrimination, their freedom of association, their sixth amendment right to counsel, and their due process and equal protection rights under the fourteenth amendment. After consolidating the hearing for the preliminary injunction with the trial on the merits, the court below denied the injunctive and declaratory relief requested by the plaintiffs. We hold that the complaint does not present a justiciable controversy and remand the case so that it may be dismissed for lack of jurisdiction.

Before 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.’ ” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974), quoting Golden v. Zwickler, 394 U.S. 103, 109-10, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969). See also Rizzo v. Goode, 423 U.S. 362, 372-73, 96 S.Ct. 598, 604-05, 46 L.Ed.2d 561 (1976); City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231, 238-39 (9th Cir. 1980). Without such immediacy and certainty of injury the dispute is not ripe; it has not “matured sufficiently to warrant judicial intervention.” Warth v. Seldin, 422 U.S. 490, 499 n.10, 95 S.Ct. 2197, 2205 n.10, 45 L.Ed.2d 343 (1975).

O’Shea presented an example of an impermissibly speculative claim. There, nineteen plaintiffs brought a class action challenging allegedly unconstitutional bail setting and post-trial sentencing practices in Cairo, Illinois. None of the plaintiffs, however, alleged any specific injury with regard to these practices. 414 U.S. at 495, 94 S.Ct. at 676. All that counsel for the plaintiffs could allege was that several unspecified plaintiffs had been subject to the illegal practices. Id. In order to allege the necessary injury, the court stated that it was necessary to assume a series of contingencies: “if [plaintiffs] proceed to violate an unchallenged law and if they are charged, held to answer and tried in any proceedings, they will be subjected to discriminatory practices.” Id. at 497, 94 S.Ct. at 676 (emphasis in original). This string of contingencies was determined to be too speculative and conjectural for resolution by a federal court.¹ Id. See also Rizzo v. Goode, supra; Golden v. Zwickler, supra; City of South Lake Tahoe, supra; Stewart v. M. M. & P. Pension Plan, 608 F.2d 776, 784-85 (9th Cir. 1979).

Here, the allegations of the appellants are even more speculative. 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. The series of contingencies is not only long, but the appellants have failed to demonstrate that each stage necessarily follows its predecessor. In their pretrial statement, for example, both parties agreed not to contest that no Portland police officer had ever been denied counsel when he or she requested one. In O’Shea, at least, there was some allegation of past illegal activity upon which to base a claim of a threat of real and immediate injury. 414 U.S. at 495 — 96, 94 S.Ct. at 676. Furthermore, the order itself says that counsel may be provided if the officer’s command or the independent police advisor believes the officer’s statements may be incriminating. Thus, not only is the series of contingencies longer than the one in O’Shea, but the appellants can neither offer any history of alleged deprivations, nor assert with assurance that counsel will not be provided in the future. As such, their claim is abstract at best.² It is not appropriate for judicial determination at this time.³

The judgment is vacated and the case is remanded so that the action may be dismissed for want of a justiciable controversy-

1 . This inquiry is distinct from the analysis, on the merits, of whether the plaintiffs have demonstrated a case for equitable relief. See O'Shea v. Littleton, 414 U.S. 488, 499-504, 94 S.Ct. 669, 677-680, 38 L.Ed.2d 674 (1974).

2 . Judge Reinhardt’s dissent makes much of the fact that all the officers who might be affected by the proposed order are here before the court. A like circumstance did not disturb the result in United Pub. Workers of Am. v. Mitchell, 330 U.S. 75, 86-91, 67 S.Ct. 556, 562-565, 91 L.Ed. 754 (1947). Various federal employees there challenged the Hatch Act which restricted their political activity. The Court dismissed the claims of those employees who had not alleged specific past acts of political participation. The Court said:

The power of the courts, and ultimately of this Court, to pass upon the constitutionality of acts arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough. We can only speculate as to the kind of political activity the appellants desire to engage in or as to the contents of their proposed public statements or the circumstances of their publication. It would not accord with judicial responsibility to adjudge, in a matter involving constitutionality, between the freedom of the individual and the requirements of public order except when definite rights appear upon the one side and definite prejudicial interferences upon the other.

Id. at 89-90, 67 S.Ct. at 564 (footnote omitted).

Here, the PPA can show no prior incidents where an officer was not allowed his own counsel nor can they definitively demonstrate that such counsel would be denied in the future. Without such a showing, they have failed to make out the real and substantial controversy required by Article III. See Western Mining Council v. Watt, 643 F.2d 618, 626-27 (9th Cir. 1981).

The dissent’s citation to Lyons v. City of Los Angeles does not aid its cause. As made clear in Lyons II, the allegations of injuries were specific, non-remote, and capable of precise judicial evaluation. Lyons v. City of Los Angeles, 656 F.2d 417, 418 (9th Cir. 1981). That record provided the “definite prejudicial interferences” required by United Pub. Workers of Am. The case before us does not.

3 . This case is thus readily distinguishable from Lyons v. City of Los Angeles, 615 F.2d 1243 (9th Cir. 1980). There, a citizen sought to enjoin the Los Angeles Police Department from employing strangleholds against automobile drivers stopped for minor traffic violations. In the face of an attack alleging that such future acts were too uncertain, the court responded that the case involved all possible Los Angeles drivers, and that the challenged acts were alleged to be “accepted police practice.” 615 F.2d at 1246. With these facts, the court found that the “odds” of a constitutional violation were “much greater” than in O’Shea. Id. at 1247. By contrast, the appellants can point to no case where counsel was denied, nor can they unequivocally state that counsel will never be provided.

The court in Lyons further distinguished O’Shea and Rizzo on the ground that Lyons did not seek the federal supervision of the Los Angeles Police Department; he merely sought to enjoin an “established practice” which routinely violated citizens’ constitutional rights. Id. Here, the appellants desire the federal courts to disturb the inner workings and structure of a local police department. The federalism concerns here are parallel to those expressed in O’Shea and Rizzo, and thus we follow that latter line of cases.