*2 WRIGHT, Before TAMM and WILK- Judges. EY, Circuit WILKEY, Judge: Circuit February. appellant On 25 was al- legedly shopping in a store unspeci- Washington, D. C. For some reason, proprietor jewel- fied ry reported store called the “suspicious” that a man in the was promptly store. Several officers and, being came to the store direct- appellant, ed to he demanded that identi- fy ques- himself and answer a few brief appellant In order to assure that tions. carrying weapon, was not superficial conducted a search “frisk” appellant’s clothing body. outer No arrest made and the entire inci- dent lasted nine minutes. attorney subsequently Metropolitan
wrote the
Chief of
Po-
Department
requested
lice
assurance
subject
appellant
would
response,
another such
incident.
appellant’s
Chief of Police advised
coun-
give
sel that he could not
such an assur-
ance, and
“frisk”
conducted
appellant
in accord with the Consti-
guidelines
procedural
tution estab-
Department.
lished
the Police
brought
ment
a class
need not answer
inter-
thereafter
seeking
rogatories
oth-
information about
himself and all
action on behalf of
similarly
against
stops
Dis-
the one in
frisks other than
ers
situated
Columbia,
Police which
was involved.
trict of
the Chief of
Ap-
other
officers.
various
*3
sought
pellant
enjoin
police from
the
Three-Judge
The Convention
a
I.
of
frisking
any
stopping
in
individuals
Court
their consti-
manner not in accord with
rights, alleging
sought
the actions com-
tutional
the convention
plained
typical
enjoin
and to be
three-judge
of here
be
in order to
of a
court
rights. Ap-
statutory
constitutional
operation
provi
violative of
the
of two
three-judge
pellant
requested
a
permits
also
that
the
The first statute
sions.
questioning
in
a
court be convened
to declare
period
order
a
“not
exceed
for
provision
a federal
D.C.Code and
“any person
in
arrested
three hours” of
based
Finally,
statute unconstitutional.
sec
The
the District of Columbia.”1
Metropolitan
the
Po-
on the actions of
voluntary
provides
con
ond statute
that
sought $15,000
lice,
in dam-
by. person
fessions
a
under arrest
made
ages
the
arrest from
false
not
inad
or custodial detention shall
be
Columbia.
solely
delay
a
missible
bringing
because of
committing
person
a
before
action, appellant
In
his
served
aid
magistrate.2
is,
course,
that
It
true
interrogatories
upon
defendants
set of
concerning if
situation
in which these
existed
seeking
information
detailed
being
enjoined
might
un
statutes
constitutional,
be
as
jewelry store,
the incident at the
as well
necessary
it would be
unspecified searches, stops,
as various
three-judge
interrogations
to hear the
frisks,
convene
court
conducted
court,
opinion
It
issue.
is the
upon
De-
individuals. The Police
other
however,
presented here
interrogatories
that
the facts
partment answered the
simply
con
concerning
not
into
do
call
store incident
stitutionality
interrogatories
of these two statutes.
declined
answer
but
Depart-
other
The
about
actions.
The
were not
basis
two statutes
ment
information about
asserted that
“stop
performed on the
frisk”
other incidents was not relevant to
legality
acting
appellant.
It is clear
against
ap-
of the action taken
did,
attempting
they
were
pellant.
procedure
“stop
utilize the
and frisk”
Terry
appellant’s
upheld
In
The trial court denied
v. Ohio.3
weapons for
quest
convention of a three-
searched
individual was
judge
strict sense
which did not
court to
the constitution-
reasons
consider
probable
Supreme
ality
dismissed constitute
two statutes and
cause.
permissi-
seeking
enjoin
the Police
held such a search
action
Court
reasonably
Department’s
stop-and-frisk
policies.
officer
ble when
safety
his
in the
The court further found that
warranted
belief
damages
might
money
be
individual
the area
claim
or that of others
reasonably
$10,000
endangered.4
has subse-
not
exceed
This court
could
therefore,
should,
a confrontation
quently
this issue
that such
held
pat-down
nor a
an arrest
in the District
Columbia Court
is neither
heard
though
po-
Finally,
detention,
the Dis-
even
of General Sessions.
custodial
interrogates
suspect in
Depart-
Police
trict Court held
lice
officer
IV,
(Supp.
1971)
5 L.Ed.2d
88 S.Ct.
4-140a
§
D.C.Code
1/
added).
(emphasis
Id.,
3501(n)-(e)
2. 18
at
S.Ct. 1868.
U.S.C.
§
investigative
judge
required
of such an
the course
dismiss the action
jurisdiction.6
for lack
confrontation.5
difficult
In some situations it
attack on the two
Terry “stop
allegation
distinguish
statutes
between a
is not saved
represents
covered
he
frisk” and the situations
a class
has been
subject
question.
upon
It
two statutes
into
called
based
seen, appellant
As we
and frisk could
statutes.
is conceivable that
long
people
vir-
not a
extend for so
tually
that it would be
member of the class of
indistinguishable
subject
from an arrest. who have been
to action based
might
person simply
such a situation it
be unclear
statutes. A
can
acting pursuant
represent
whether
a class of
he is
*4
Terry
permits
a
to
or to the statute which
member. For these reasons there was
jurisdictional
questioning
the
a
no
detention and
of
sus-
the
basis for
conven
pect
following
three-judge
tion
of a
three hours
arrest.
District Court.
Fortunately, this is
such a difficult
not
Evidentiary
Rights
II.
clearly
placed
to an
case.
was
Hearing
Enjoin
by
to
Future
Searches
“under
the
arrest”
officers.
only
The first statute under attack deals
challenge
In addition to his
to the two
following
questioning
with
an “arrest.”
statutes, appellant
the
claims that
occurred,
Since
arrest
it
no
cannot be
frisking
stopping
of the
and
any appli-
contended
the
statute has
comply
him did not
the
with
standards
cability to this case.
Terry
established in
in-
An
v. Ohio.7
junction, therefore,
sought against
was
statute,
permits
The second
the
prevent
the
to
them from detain-
given prior
use
confessions
of
to ar-
ing, frisking, searching
interrogating
or
raignment,
clearly
basis of
not the
him in the future. We believe that the
any
police’s
actions. Here no con-
correctly
District Court
dismissed
by
po-
fession was offered or taken
plea
injunctive
ap-
relief and denied
lice;
the words
statute have
pellant’s request
evidentiary
for an
employed
giv-
been
to offer a confession
hearing on the matter.
by appellant.
is, therefore,
en
It
diffi-
Metropolitan
Department
The
Police
cult to conceive of how the second stat-
guidelines
has established
for the use of
ute could be
involved
the facts of this
stop-and-frisk procedures.8
is, there-
It
case.
fore, possible to examine and consider
guidelines
these
determine if the Po-
to
reading
simple
From a
Department
policy
lice
has an official
by appellant,
two statutes attacked
it
engaging in
If
unconstitutional frisks.
seems obvious
neither
had
of them
guidelines
lawful,
Department’s
anything
to do with
action in the
it cannot be said
basis of
therefore,
is,
store. There
no
presented
facts
that there exists an es-
predicate giving
factual
rise to a case or
policy
making
tablished
unlawful
controversy under either
the statutes.
frisks.
three-judge
may only act,
A
court
justiciable
course,
Department’s
when
con
a
case or
The
memorandum treats
troversy is shown to
a
exist. Absent
in detail the three fundamental elements
justiciable
controversy,
single
investigatory
case or
a
of an
confrontation:
Mfg. Corp.
Kennedy,
See Au Yi Lau v. United States
Immi
6. Lion
v.
U.S.
117
gration
Service,
374-375,
App.D.C. 307,
833,
and Naturalization
144
330 F.2d
U.S.App.D.C.
147,
(No.
(1904).
The from this occurrence that frisks guidelines clearly ordinarily are a sincere effort are carried out in sit- similar permissible uations. describe the bounds of activity. fault, they possess it is If policy dictate Considerations thorough they include too are cautiously grant that the act courts too nonessential information much on.11 ing injunctions against police acti by police easily them to be referred A court should not bind the hands of the stop-and-frisk man with confronted possibility mere that cer guidelines existing situation. repeated. tain conduct To sodo confusing not, however, unclear or so unnecessarily would involve the courts Undoubtedly, as to be unconstitutional. police matters and dictate action in situ Department gains experience in the mulating for flexibility ations in which discretion and. stop-and- implementing important. are most In order guidelines procedures, their will be frisk grant injunction, court there them more refined to make revised and showing should be a that there is a sub pub assure that efficacious and to stantial risk that future violations will protected safety undue without lic’s occur. citizenry’s privacy. impositions on the order to show substantial and are are commendable Such efforts conduct, pat likelihood of future encouraged. a clear to be tern of harassment must be shown.12 course, possible is, that a It making pattern Such a should consist of fre policy could unlawful frisks quent by police acts of offi misconduct though the offi exist in fact even stated cers, supe which acts were known policy cial is within bounds of rior As officers of the force. we custom Constitution. officers If examining Depart seen *6 frisks, carry arily out unlawful guidelines, pol ment’s icy no there is stated police policy it that the could not be said inflicting which, of when searches investigatory regarding confrontations tested, Likewise, are there unlawful. prove party could such was If a lawful. allegations that, prov are no factual if conduct, he would an unlawful course of en, an un would show existence of injunction against its be entitled to an inflicting policy written of unlawful continuance. Court, therefore, The District searches. properly appellant’s plea dismissed for however, situation, In the instant evidentiary injunctive relief without an allegations there have been no factual hearing. which, proven, the exist- if would show making policy heavily Appellant of unlawful ence of a on this court’s relies allegation Layton,13 here is of a sin- frisks. The decision Gomez assuming gle hearing. quest evidentiary isolated Even for incident. an any illegality, one could not conclude reliance is misdirected. In Gomez general 1 1. For a discussion of the court’s had three hundred such searches Over power enjoin police activity Note, 19-day period by see a been made within a Injunction Remedy by special squad The Federal as a the Police authorized Conduct, Police Yale Unconstitutional the court In that decision Commissioner. carefully distinguished L.J. from the situation only in- in which there were isolated one 12. The than an need to establish more alleged harassment. cidents of isolated instance of harassment has These raids not isolated instances recognized by been in a decision officers. individual undertaken Gelston, In Fourth Circuit. Lankford v. They of a the effectuation were rather (4th 1966) (en banc), Cir. F.2d 197 ranking high plan offi- conceived injunc- permitted preliminary the court a cials. tion in a offi- situation at 202. 364 F.2d making policy cers had established a of U.S.App.D.C. ac- unconstitutional searches with 13. 129 quiescence of the Police Commissioner. stop-and-frisk guidelines. may injunction sought against If the en- one was reg- not an to be maintain action on his own be- forcement of a statute claimed Department half, perforce ularly applied by it follows that he cannot the Police pursue day-to-day operations. part the action behalf a of of another. its allegation policy There no or written was maintainable Here is no stated there concerning being any other In attacked as unlawful. misconduct obligat- Appellees complaint were not is of a instant case individual. interrogato- alleged therefore, single nonrecurring ed, answer the instance of ap- realting persons by police ries other than Gomez officers. harassment pellant. en- case therefore instant tirely there In the former different. Summary IV. official, policy publicly adopted an injunc Stripped pleas no There was under attack. declaratory relief, re all that tive objected procedures that the damages plea a mains this case is regularly would occur occurred resulting alleged unlawful from the again in the therefore future. It was appellant. The search and detention single unnecessary allege a more than found that trial trial court application practice in order to jury had in excess returned verdict injunction. an an maintain action for $10,000, been such award would Right Inter- III. to Submit simple tort action excessive. Since rogatories Regarding Activities $10,000 support the not less than will Appellant Was Involved Which Not court, jurisdiction trial federal interrogato- Appellant judge filed a set of to the case removed ordered the seeking only con- not information ries then District Court of Columbia Court cerning in- he was incident which the dis It is within Sessions. General volved, Judge detailed information make but also cretion frisks, concerning arrests, stops, finding.14 other think that We such do interrogations, Judge and other detentions discretion abused that the District persons. unidentified various in this instance. right to contends that he has a submit essence, our means that decision interrogatories he is main- such because enjoin taining all on behalf of class *7 subjected practices repeating the he was persons have been unidentified who the Depart- jewelry The at the store. to subjected such detentions. policy is not un- ment’s stated official might main- were be true allegation of the on face and lawful single its taining on behalf a valid class action not indicate unlawful frisk does individuals, is these but this unnamed prob- be future would that unlawful acts the ease. therefore, injunction, could No able. however, mean, Appellant member of This does not a issued. is in this isolated conduct people have sub that officers’ who been class of necessarily upon Proof lawful. jected incident was action based ques- necessary sought un to resolve this will be declared two statutes to be pursue his free to Likewise, we have de tion. remedy is constitutional. against in- argument officers is law appellant’s he en at nied that against police Department volved, injunctive titled' to practices relief allegedly violate the of Columbia.15 that lie has suffered Electrical, belief See and Ma- Radio United weak, appears Co., any damage if it somewhat v. General Electric chine Workers he made no claim U.S.App.D.C. has is considered 258 97 personnel, against general its store or For a discussion responsible purportedly for power who an action trial to dismiss court’s adequacy calling amount, jurisdictional whose see for lack put in issue been Wright, has not 33 motivation § Federal Courts appellant. however, it, complaint IAs read V. Conclusion injunctive for is insufficient relief the reasons discussed above For judicial warrant further action at this refusing the District Court sug First, any specific it time. lacks Court, three-judge District convene gestion alleged police’s refusal evidentiary refusing permit hear- an “stop policy to conform its and frisk” ing right injunctive re- Fourth restraints is Amendment’s right lief, denying appellant’s sufficiently pervasive to warrant relief.1 concerning interrogatories submit Apart plaintiff’s unrepeat own parties third and detentions of searches encounter, ed no actual incidents of police illegality alleged. Apart from Affirmed. vague Long allegations, provides no his specific suggesting he facts that either anyone actually or else has been victim Judge, WRIGHT, Circuit J. SKELLY illegality employing ized concurring: stop practice February, and frisk since Judge join parts Wilk- I I and IV of 1969. Additional in detail to actual Long’s ey’s agree re- opinion. I also cidents, suggesting plaintiff quest injunction have been should an repeatedly victimized or that mem evidentiary hear- an dismissed without perva a class of a bers of were victims practice, interrog- ing. Likewise, request obviously pattern sive present wholly would information detailed atories to uncover different case. prac- concerning stop-and-frisk current My agree- properly denied. tices was by Police Chief The letter written however, majority, should ment with the February Layton 1969 incident after interpreted disinclination as a not be maintaining propriety against equitable relief authorize questioned police not alter action does po- alleged proven pattern clearly my Assuming orig- conclusion. that the against illegality. Injunctive relief lice unlawful, it inal and frisk was appro- Fourth Amendment violations endorse- me the letter’s seems to priate upon proof violations that such ment action in repeatedly and well occurred regulations superseded by issued later Gelston, 364 Lankford continue. See year.4 guidelines, as I the same Those 1966); (4th Wil- Gomezv. Cir. F.2d them, emphasize that the “reason- read (D.D.C.1971). F.Supp. son, suspicion” investi- able standard security from official our citizens gative “specific stop must be based on lawlessness, effect on with its corrosive disapproving facts”5 and can be read as self-discipline private citizens’ any police detention of citizen government, less. spect demands no “suspicion” merely the unelaborated granted relief must not But such difficulty Thus, I have *8 another citizen. ju- hasty lightly, unduly obtrusive or believing plaintiff is realistical- that undermine can intervention dicial by repetition ly the 1969 threatened important self-restraint values self-respect. incident. Layton, Gelston, g., Compare See, 129 364 F.2d 2. e. v. U.S. 1. Lankford v. Gomez 794, 289, 1966) App.D.C. 291, 197, (4th F.2d 796 with Peek v. 394 201 Cir. (6th Mitchell, 575, (1968). 579 Cir. Police, 1970) 437 Carter v. Chief Appendix 3. at 11-12. Joint 1971) gen 413, (3rd F.2d 415 Cir. See guidelines Injunction Id. were issued erally, Note, at 13-21. The Federal as August 27, 1969, two months after Remedy on Police for Unconstitutional attorney Long’s of Police Conduct, 143, received Chief 151-52 n. 35 78 Yale L.J. Layton’s letter. (1968). Id. at 15.
935 which, “specific and articulable the cur facts is This intimate together plaintiff taken the rational infer- guidelines, chal with which the rent facts, reasonably lenges representative, ences warrant are im a class as Wilson, challenge. 323 the intrusion.” F.Supp. v. Gomez constitutional mune from Likewise, (D.D.C.1971). challenge requires specific 87, 92 But such being actually a mere allegation than they must show more are investigation subject of specific hunch that the might applied, indication or a pat- dangerous justify a Long threat be class are or members of his following stop. Long’s down the initial en frisk unfortunate hardly ened them. 27, Ohio, 1, S. ago 392 88 years See v. U.S. indicates three counter (1968). 1868, L.Ed.2d 889 guidelines presently threaten 20 Ct. Although Article the contours of him. it, Supreme re- As read Court’s I requirement controversy Ill’s case Williams, ruling 407 cent Adams v. allega unspecified sharp,6 hardly 143, 1921, 612 32 L.Ed.2d 92 S.Ct. U.S. chilling a resultant tions harm and (1972), does not liberalize these suggest a claim that more effect without dealt Adams straints on conduct. insufficiently concrete to invoke is stop merely question with the whether jurisdiction. Relevant Court’s on the based word and frisk could be past indicating facts a likelihood of po- firsthand an informer well as on as infringing impending unlawful Compare Terry v. lice observation. pleaded.7 plaintiffs’ must interests swpra, 5-6, Ohio, 1868 392 88 S.Ct. U.S. Mfg. Corp. Kennedy, 117 U. See Lion v. Although this Adams answered 373, S.App.D.C. 367, 833, 839 F.2d 330 affirmatively, stressed it also 77, (1964); Boyle Landry, v. 401 U.S. tip specificity informer’s (1971) ; 758, 81, 91 L.Ed.2d 696 S.Ct. prior officer his contact with v. Mac Lake Carriers’ Association stop subsequently out the carried who 508, Mullan, 507, 92 S.Ct. apparently informer and frisk with the 32 L.Ed.2d It looking at 4725. on. 40 U.S. L.Week proper re Court to thus the District Adams, F.2d Williams also See request Long's proceed with fuse to good Thus, (2nd 1970). is there Cir. interrogatories. serve police’s en- reason believe Long may rest on too thin Judge with counter the District Court and As both note, a reed. Wilkey Long main- is free to still complaint dam- tain individual ages in the Court General Sessions. ON OPINION SUPPLEMENTAL Judge Wilkey action, acknowl- REHEARING edges, anything Al- but frivolous. though Supreme failed Court has Judge: WILKEY, Circuit precise question, there
rule on
grave
requested
our de-
officer
doubt whether
has
lawfully
first
September
a citizen—the
case
accost
cision of
suggested that
reconsidered
step
the basis
has
in a
and frisk —on
The first
be reheard en banc.
case
suspicion unelab-
mere
another citizen’s
grounds
by appellant in
four
advanced
by any specific observations.
orated
fully
rehearing
petition
“suspi- his
dealt
report
Certainly,
telephone
require
original opinion and
in our
with
cion,”
more,
*9
amount
does not
without
alleged
example, Long might
U.S.App.D.C.
Ichord,
have
7. For
6. See
Davis v.
complaint specific
(1970)
evidence of un-
in his
183, 196,
by
practice
concurring).
frisk
L,
(Leventhal,
lawful
jur-
pointing
in this
decisions
to recent
suppressing evidence.
isdiction
that,
opinion
fifth and
no
comment.
further
As
Court is
there
reconsideration, appel-
any judgment
unlawful
final reason
ar-
alleged
in
erred
lant
ruling
Court
rest
this case it would
exceed
“[t]he
damages aspect
$10,000.00.
is, therefore,
of this
that the
This case
properly
to the D. C.
case was
referred
certified to
District
Columbia
Sessions, pursuant
Court of General Sessions.”
Court General
D.C.Code,
§
originally ordered
had
The trial court
damages
accepted
misapprehension
count submitted
This
was
Sessions because
restated
of General
its
Court
the Government
controversy
Despite
opportuni-
not suffi-
was
amount
brief.3
all of these
jurisdiction.
support
misapprehension, ap-
federal
cient
ties
correct this
original
pellant
attempt
in our
this action
made no
We affirmed
to disabuse the
slight
here,
court,
opinion,
counsel,
opposing
do
clari-
with a
trial
or this
opinion.
phrasing
misunderstanding
in the
cf the
court of
until
fication
grant
opinion
er-
was
now contends that this
after our
To
had issued.
brought
appellant’s request
point
under
ror because
ease was
would
at
1343, encourage
arguing
piecemeal
1983 and 28 U.S.C.
§
cases
U.S.C. §
jurisdiction'in
provides for
and would result
in increased work
regard
without
the court.
District Court
controversy.
amount
Our action here should not be taken as
a statement that
District Court
was
two
indisputable that the
It is
damages
correct when it transferred the
jurisdiction
provide for federal
statutes
issue to
Court of General Sessions.
regardless
in controvers
of the amount
point-
If the lower
had
error
been
court’s
Long
plead
two
y,1
these
and that
did
out,
ed
we would
of course cor-
original complaint. We
in his
statutes
appeal.
deny appel-
it on
rected
We
however,
not,
either
that we
do
believe
request solely
lant’s
he
because
remained
opinion
our
or must amend
should
indifferent
misunder-
an obvious
suggested
be both
do so would
extent
—to
standing
nothing
and did
to correct the
unnecessary.
unwise and
though
posi-
situation even
he was
Altering
disposition of the
our initial
tion to do so. To
our decision
amend
as
appellant
case at this time would reward
suggests
place the bur-
would
encourage ju-
for his indifference and
par-
developing
perfecting a
den of
inefficiency.
examination
dicial
An
judiciary
ty’s
on the
than
case
rather
transcript
the
Judge
indicates
adversary parties.
damages
thought Long’s
plea
simple
theory,2 in which
based on
tort
obligated
would be
to correct our
We
jurisdictional
would
case the
amount
opinion if it
contained
erroneous
misapprehen-
$10,000.
have been
might
con-
statement
law
repeated by
Court
sion
the District
litigants.
fuse future
the issue
On
be-
in memorandum and order:
its
however,
latedly
appellant,
raised
our
entirely
opin-
opinion is
our
correct.
counsel
As
stated
Plaintiff’s
stands,
language
injury.
plaintiff
physical
no
suffered
ion now
it contains
no
party
only
suggest
would
to a future
And the
record shows that he was
1983 was
in the case.
involved
detained
moments.
§
few
judge
City
repeatedly
Douglas
Jeannette,
the trial
referred
1.
being essentially
for unlaw-
one
937 Court, We, dealt with like the District assumption damages issue on of America UNITED STATES theory simple tort it was based on v. opinion assumption under our CARMICHAEL, Appellant. Robert is correct. No. 71-1218. plea Appellant’s last minute Appeals, States Court United
might stronger made if our decision Circuit. District Columbia impossible him to vindicate it 11, Argued Sept. 1972. do, rights under courts 1983. State § 19, Decided Oct. jurisdiction however, have concurrent actions,4 our 1983 civil over § equiva purposes courts are the the D.C. system. Our decision a state
lent arguing prevent appellant from
will under 1983.
his case §
Finally, noted that it should be required no clearly not to take
arewe argument this time. at
tice jurisdictional pointing is not out a
He argu an affirmative but rather
defect is, jurisdiction. It ment favor of
course, within the discretion of a court they ignore such claims
timely made. given above, peti-
For the reasons rehearing suggestion for
tion
rehearing en borneis
Denied. WRIGHT, Judge, SKELLY Circuit
J.
dissenting part: jurisdiction in this
Since case laid (1970) 42
under 1983 28 U.S.C. § (1970), jurisdic-
U.S.C. 1343 no § required
tional amount is sustain that
jurisdiction Court, in the District see
Douglas City Jeannette, v. (1943), L.Ed. S.Ct. respectfully part
I dissent opinion requires a
the court’s Superior
transfer this case
Court. jurisdiction Congress generally grant grant concurrent has chosen to Moore, private jurisdiction presumed. Houston civil See concurrent 25-27, (5 Wheat.) L.Ed. If no ex- actions. the statute contains U.S. provision contrary, press such a