Lead Opinion
For the third time in four years we are confronted with an appeal in litigation commenced more than five years ago to prevent District of Columbia police from interfering with appellant’s nocturnal strolls on public thoroughfares in the city.
I
Appellant’s lengthy odyssey through' the courts was precipitated in 1967 when he was twice stopped and questioned by police officers while walking in the vicinity of Dupont Circle late at night. On both occasions the officers filled out so-called vagrancy observation forms
The District Court, sua sponte, dismissed the action on several grounds. On the first appeal, we vacated the dismissal and remanded to the District Court for further proceedings.
The casе was then heard on the merits, and appellant was awarded a part of the relief sought in his complaint. The District Court’s order enjoins the police from interfering with appellant’s right to walk or be in any place in the District of Columbia while sober and well-behaved, and requires elimination from police records of all references to the vagrancy observations made of him.
Two errors are alleged: first, that the District Court should have treated the case as a class action and granted relief accordingly; and second, that the court should have held unconstitutional the subsections of the vagrancy statute which were not in issue in Ricks I. For reasons now to be stated, we are unable to dеcide either of these questions, but instead must remand the case to the District Court once again.
II
In the five years which have elapsed since this litigation began, both the law and police policies governing on-the-street stopping and questioning of citizens have undergone substantial modification. Ricks I invalidated portions of the District’s general vagrancy statute
In May, 1968, the Supreme Court addressed the problems raised by police investigatory stops and accompanying searches in Terry v. Ohio
It is against this backdrop of changing law and practice that appellant has here renewed his request for class-action relief and a declaration of unconstitutionality of the remaining sections of the general vagrancy statute. But the record before us is bottomed solely
Nevertheless, in the midst of all the change in the law and its implementation by police, one circumstance allegedly remains unaltered. Appellant asserts that he is still a target of police harassment while taking his walks at night. At oral argument his counsel informed us that since the District Court issued its last order, there have been two occasions on which he was stopped аnd interrogated by police,
Since this new information was brought to light after this case had left the District Court, it is outside the record on appeal. We think, however, that it constitutes enough of a showing to entitle appellant to an opportunity to update his lawsuit as a predicate for possible further relief. As a part of our appellate jurisdiction, we .are empоwered to “remand the cause and . . .require such further proceedings to be had as may be just under the circumstances.”
We are mindful of the hardships imposed on parties where, as here, the wheels of justice grind so slowly that they may appear to hardly turn at all. Justice that is both swift and sure is the millennium and must remain increasingly the goal of us all. Yet it sometimes happens, however regrettably, that speed in adjudication must to some extent yield to quality of adjudication. The case before us demands such a yielding to enable a sound evaluation of appel
Ill
One other aspect of this litigation merits discussion. The power of the District Court to entertain appellant’s suit has not been challenged, but the jurisdictional foundation upon which the court proceeded is unclear. Of three bases averred in appellant’s complaint,
We put aside at once appellant’s claim of jurisdiction under 28 U.S.C. § 1343(3).
We look next to 28 U.S.C. § 1331(a) —the general federal-question provision —which vests in the district courts jurisdiction of civil actions in which the matter in controversy “arises under the Constitution, laws, or treaties of the United States” and exceeds $10,000 in principal “sum or value.”
Where the call for federal-question jurisdiction under Section 1331(a) is meritorious, the task of dem
We do find, however, an adequate jurisdictional base, irrespective of the amount truly in controversy, in the provisions of D.C.Code § ll-521(a)(l) which were in force when appellant’s suit was instituted in the District Court.
We are mindful that, when appellant brought his suit, the District of Columbia Court of General Sessions
Appellant did not seek recovery of any “personal property or” any “debt or damages,”
The ease is remanded to the District Court for such further proceedings in harmony with this opinion as appellant may be inclined to initiate.
So ordered.
Notes
. Our earlier decisions in this case are Gomez v. Layton,
. See Hall v. United States,
. A more detailed account of appellant’s two encounters with the police is found in the District Court’s opinion on the second remand, Gomez v. Wilson,
. D.C.Code §§ 22-3302 to 22-3306 (1967). This statute is to be distinguished' from the District’s narcotic vagrancy law, D.C. Code § 33-416a (1967).
. Gomez v. Layton, supra note 1,
. Supra note 2.
. Only subsections (1), (3), and (8) of D.C.Code § 22-3302 (1967) were declared invalid.
. Gomez v. Wilson, supra note 1,
. Gomez v. Wilson, supra note 3,
. Appellees do not cross-appeal the injunction against them or the direction that the vagrancy observations be expunged. These unappealed portions of the District Court’s order have thus' become final, and we are without jurisdiction" to reconsider them. Fed.R.App.P. 4(a); Hodgson v. United Mine Workers,
. See note 7, supra.
. Supra note 2.
.
. These include (a) a memorandum dated February 17, 1969, from the Chief of Police to members оf the force, which discontinued vagrancy observations and arrests in certain instances but condoned the practice of questioning and reporting on “persons engaged in suspicious activity (b) a memorandum dated December 19, 1969, to Second District police regarding utilization of a traffic check system to stop and report on motorists “in suspicious circumstances(c) a memorandum dated January 13,1970, to Second District officers regarding utilization of the traffic check procedures to stop “suspicious persons on foot;” and (d) a memorandum dated June 12, 1970, to Second District police regarding utilization of a form to record observations of vehicles and “all suspicious persons found loitering about this area.”
. The “spot check” form is to be filled out on all suspicious vehicles and persons with such information as the location, date and time of the observation and the name, address and description of the individual observed. The vehicular spot check was sustained in Palmore v. United States,
.
. Sibron v. New York,
. Terry v. Ohio, supra note 16,
. In describing these guidelines in Long v. District of Columbia,
The guidelines provide that in order to stop an individual an officer must have a “reasonable suspicion” that the person is committing, has committed, or is about to commit any felony or misdemeanor prosecutable by the U.S. Attorney. . . . The procedures stress that stops should not be used to harass citizens and there are a number of limitations designed to curb the use of investigatory stops.
Id. at 931.
. Supra note 2.
. Supra note 19.
. In Hall, we reversed a conviction predicated on possession of narcotics seized upon the accused’s arrest under one of the subsections of the District of Columbia narcotic vagrancy statute, D.C. Code § 33-416a (1967), which had been held unconstitutionally vague in Ricks II, supra note 2, because conduct ostensibly within the purview of that subsection does not ipso facto establish probable cause for the arrest. In Long, we affirmed a District Judge’s refusal to convene a three-judge court, and his dismissal of a constitutional challenge to D.C.Code § 4-140a (Supp. IV 1971) and 18 U.S.C. § 3501 (a)-(c) (1970), which stemmed from a stop and frisk in a jewelry store.
. Long v. District of Columbia, supra note 19,
. E. g., Thorpe v. Housing Authority,
. United States v. Petrillo,
. These incidents are claimed to have taken place on June 8, 1972, and in August, 1972.
. Appellant alleges that on June 8, 1972, one of the officers wrote something on a card during their conversation with him.
. And, exercising our authority to judicially notice the record in other litigation in this court, see Craemer v. Washington,
. 28 Ü.S.C. § 2106 (1970).
. See Wells Fargo & Co. v. Taylor,
. See Byrd v. Blue Ridge Rural Elec. Co-operative,
. “Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.” Fed.R.Civ.P. 15(d).
. E. g., McHenry v. Ford Motor Co.,
. E. g., Griffin v. County School Bd.,
Griffin v. County School Bd., supra, is especially instructive. The school board was one of four involved in the decision in Brown v. Board of Educ.,
Rule 15(d) of the Federal Rules plainly permits supplemental amendments to cover events happening after suit, and it follows, of course, that persons participating in these new events may be added if necessary. Such amendments are well within the basic aim of the rules to make pleadings a means to achieve an orderly and fair administration of justice.
. See note 32, supra. See also United States v. L. D. Caulk Co.,
. The separate opinion, post pp. 425-426 et seq. While agreeing that a remand is necessary, asserts that we should facilitate the completion of this litigation by offering guidance to the District Court. Because we do not adopt the exposition the opinion makes, it accuses us of impairing the credibility of the court. The only substantial “guidance” which the opinion volunteers, however, consists of a discussion of the feasibility of a preliminary injunction against spot checks pending conclusion of the remand. We would not presume to instruct еxperienced counsel or a trial judge more than thirty years on the bench as to the well known criteria for granting such injunctions.
Moreover, appellant already has a permanent injunction affording him individually every bit of the protection asked in his complaint, and obviously has also the prerogative of charging any violation of that injunction as a contempt of court. To be sure, a preliminary injunction, if granted, would ban spot cheeks temporarily while the proceedings continue, but it would not bring about the ultimate determination on the merits any sooner. Nor, despite the substantial amount of “guidance” proffered, do we find any suggestion in the separate opinion that would shorten the dispositional process one whit. We cannot imagine a. more serious threat to the court’s credibility than a promise that hardly could be fulfilled.
. The complaint invoked jurisdiction pursuant to 28 U.S.C. §§ 1331(a), 1343(3) (1970), and D.C.Code § 11-521 (a)(1) (1967).
. See text infra at notes 43-46.
. See text infra at notes 45-57.
. See text infra at notes 58-70.
. E. g., McNutt v. General Motors Acceptance Corp.,
. Since each of the two previous appeals in this case wаs from a pretrial dismissal of the action by the District Court, see text supra at notes 5-8, we have had no previous call to scrutinize the District Court’s jurisdiction.
. “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person [t]o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. . . .” 28 U.S.C. § 1343(3) (1970).
. “Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation
.
. Id. at 4131.
. “The district courts shall hаve original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331(a) (1970).
. Appellant’s claim invoked the Fourth Amendment’s safeguard against unreasonable seizures of the person, e. g., Terry v. Ohio, supra note 16,
. The Supreme Court has admonished that “in suits against federal officers for alleged deprivations of constitutional rights, it is necessary to satisfy the amount-in-controversy requirement for federal jurisdiction.” Lynch v. Household Finance Corp.,
No difference in principle results merely from the fact that appellant’s suit was against District officials since no more for that suit than for one against federal officers was there general federal jurisdiction in the circumstances presented.
The need to meet the jurisdictional amount requirement in § 1331(a) suits to vindicate fundamental rights has been aptly described as “an unfortunate gap in the statutory jurisdiction of the federal courts,” Wolff v. Selective Serv. Local Bd. No. 16, supra,
. Baker v. Carr,
. Although the value of certain rights may be difficult o'f precise measurement, that difficulty does not make the claim nonjusticiable under Section 1331(a). Spock v. David, supra note 49, at 8. Absolute certainty as to the amount is not essential ; it suffices that there is a present probability that the damages or the right sought to be protected meet the statutory requirement. Friedman v. Machinists Int’l,
. St. Paul Mercury Indem. Co. v. Red Cab Co.,
. For a discussion of how the amount in controversy may be determined where injunctive relief is sought, see Tatum v. Laird,
Some courts compute the amount on the basis of the value to the plaintiff of the right he seeks to protect. See, e. g., Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co.,
. See, e. g., Jaconski v. Avisum Corp.,
. McNutt v. General Motors Acceptance Corp., supra note 41,
. There is considerable disagreement as to whether a valuation is possible where basic civil rights are at stake and the claim is for equitable rather than financial redress. At one end of the spectrum are the courts which have held that such rights are incapable of monetary valuation, and thus that no jurisdiction lies under § 1331(a). See Goldsmith v. Sutherland, supra note 49,
By our analysis, the value which a particular right may command in a given case is a different question from its susceptibility to any pecuniary valuation at all. As a matter of pure logic, the ability to attach a money value to a right is not necessarily the ability to assign it a value satisfying the jurisdictional requirement of § 1331(a). In Hague v. CIO, supra, three members of the Court felt that asserted rights of free speech and assembly had to meet the jurisdictional-amount test, and two others that it was impossible for them to do so.
. Compare Hague v. CIO, supra note 56,
. “Except in actions or proceedings over which exclusive jurisdiction is conferred by law upon other courts in the District, the United States District Court for the District of Columbia, in addition to its jurisdiction as a United States district court and to any other jurisdiction con
. See note 58, supra.
. Now the Superior Court of the District of Columbia. D.C.Code § 11-901 (Supp. V 1972).
. “In addition to other jurisdiction conferred upon it by law, the District of Columbia Court of General Sessions has exclusive jurisdiction of civil actions, including civil actions against executors, administrators and other fiduciaries, in which the claimed value of personal property or the debt or damages claimed does not exceed the sum of $10,000, exclusive of interest and costs, as well as of all crossclaims and counterclaims interposed in all actions over which it has jurisdiction, regardless of the amount involved.” D.C.Code § 11-961(a) (1967).
. See Klepinger v. Rhodes,
. Paley v. Solomon,
. Brewer v. Simmons,
. Thus, the Court of General Sessions possessed jurisdiction of an action to have a trust impressed upon funds amounting to $1,980 or alternatively for a money judgment, see Klepinger v. Rhodes, supra note 61, but not of an action by рroperty owners to cancel a special tax assessment for paving improvements, see Patón v. District of Columbia, supra note 64, or a suit for an injunction against the assertion of a lien on property for an unpaid water bill and to restrain the delivery of a tax deed for the property, see Friedman v. District of Columbia, supra note 64.
. See note 61, supra.
. See text supra at notes 62-66. Compare Tatum v. Laird, supra note 53,
. See note 62, supra.
. District of Columbia Court Reorganization Act of 1970, Pub.L. No. 91-358, § 111, 84 Stat. 475 (1970).
. D.C.Code § 11-501(1) (Supp. V 1972).
Concurrence Opinion
(concurring in part and dissenting in part):
I agree that this case should be remanded for further proceedings. But, I object to the court’s apparent failure to recognize our obligation to seek the earliest possible resolution of this more than five year old law suit by providing some guidance for the District Court’s consideration. Otherwise, the delay may take its toll in the deprivation of basic constitutional rights, the exacerbation of friction between the police and the ghetto community, and the loss of the courts’ credibility.
I
There is clearly substantial evidence to support the District Court’s finding that “presently vagrancy observations [the police practice originally complained of] result from ‘spot check’ observation forms.”
In response to this court’s Ricks decisions,
[T]he arrest policies announced herein do not preclude an officer from observing persons engaged in suspicious activity in a public place and from approaching those persons and making inquiry. ... In those circumstances where a person refuses to identify himself or does not give a reasonable explanation of his conduct, the officer should make an accurate and detailed record of the person’s physical description аnd ottw er significant characteristics, clothing worn and the explanations furnished. (Emphasis added)3
The “spot check,” in contrast, began its existence as a traffic enforcement device, to be employed with a view towards “detecting persons operating without a valid driving license.”4 However, after the Supreme Court decided Terry v. Ohio,5 the “spot check” underwent a major transformation in both purpose and scope. The new purpose was described in police department communications as follows:
Effective use of this new PD 725 spot check form in recording suspicious persons ... in our area can be an invaluable aid in assisting in this District’s effort to control crime and identify and apprehend offenders.6
The traffic check form currently in use shall also be used for stopping and checking suspicious persons on foot. Members shall take the person’s name, nickname, date of birth, address, location of stop, general physical description and description of clothing worn, (emphasis аdded)7
Most importantly, the spot check procedure authorized the stopping of pedestrians under the same vague standard— mere “suspicion” — as the earlier vagrant cy observations. It seems clear that spot cheeks are but another way of implementing the policy of the Layton memorandum.
II
The District Court correctly determined that spot checks are an unconstitutional police practice, a conclusion the court today characterizes as “impregnable”. The District Judge properly rejected the Government’s assertion that because a person who is stopped has an unspoken right to continue walking and ignore a policeman’s inquiries, he has not been seized. The memoranda describing the practice themselves cast doubt on the accuracy of the government’s suggestion. And the Supreme Court in Terry held that the stop stage of an encounter is coextensive with a seizure, hence within the purview of the 4th Amendment.
It must be recognized thаt whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.9
As the trial judge perceptively observed, when a policeman stops and questions a person, the officer’s “uniform, badge and all other indicia of his power as a law enforcement authority” compel an obedient response. The person is surely “restrained.”
In Terry and related cases
The Supreme Court of Pennsylvania recently struck down that state’s similar vehicle spot check procedure. Although noting that such stops may serve a law enforcement purpose, the court declared them unconstitutionаl under the Terry test. The court warned that if the police were allowed to stop automobiles without being able to “point to specific and articulable facts”, they could intrude on “basic constitutional rights on the basis of subjective prejudices.”
The government admitted at oral argument in this ease that the spot check does not meet Terry standards. Accordingly, the District Court properly found that police interferences with the appellant’s late night walks pursuant to a mere “suspicion’ standard were unconstitutional and the court’s injunction restrained the police from stopping Gomez under the guise of either a vagrancy observation or spot check.
III
I turn now to the question of remedy. We have said that the District Court found Gomez had been the victim of unconstitutional police action. The question that court must face on remand is whether this conduct is sufficiently widespread to sustain class action relief.
It is important to note that we are not here faced with the mere assertion of a solitary isolated incident, as we were in Long v. District of Columbia, where the court observed:
In [Gomez] there was an official, publicly adopted policy . . . under attack. There was no question that the procedures objected to occurred regularly and would occur again in the future.14
The President’s 1967 Crime Commission suggested that the courts recognize “the importance of the administrative policymaking function of [the] police” and “take appropriate steps to make this a process which is . articulate and responsive to external controls appropriate in a democratic society.”
The American Bar Association has also focused on the need for providing positive guidance to the police, “rather than concentrating solely on penalizing
The class action injunctive suit is one means by which the police can be required to identify, articulate, and defend, as well as be afforded an opportunity to change, their official policies and practices. The class action, by its very nature, focuses on the broad policy rather than the individual incident. Hence, it provides the kind of positive guidance suggested by the ABA and the kind of remedy called for by the Crime Commission. But, it can only be a workable remedy if there is not an intolerable burden on a petitioner to demonstrate the widespread scope of application of an articulated police policy.
IV
The already lengthy history of this litigation indicates that it may yet be far from over. As to the interim period, the record suggests the propriety of a preliminary injunction against spot checks not meeting Terry standards. The appellant has not requested relief pendente lite; but, on remand, the District Court may properly entertain a petition for such relief. The requirements are as follows:
1) the party in whose favor the relief is to run must makе a strong showing that he is likely to ultimately prevail on the merits ;
2) there must be a danger of irreparable injury;
3) to be balanced against the extent to which the relief would harm the other party; and
4) the court must determine where lies the public interest.22
As to the likelihood of appellant’s success on the merits, it is already clear that the spot check procedure does not meet the test articulated in Terry. The issue on remand is the proper scope of relief. The official police documents describing spot checks and the affidavits of the appellant and other citizens who have been subjected to unlawful street stops and interrogations,
The District Court should also consider to what extent its limited relief has been effective to protect the appellant.
The District Court will also have to determine whether there is a danger of immediate and irreparable injury. It may find that if preliminary relief is not granted, no protection will be afforded the public from these unconstitutional street stops pending this litigation
The court may not ignore what might be lost by the government should a preliminary injunction issue. Courts certainly should not involve themselves unnecessarily in police matters and should consider the degree to which proper activity and discretion may be curtailed by the preliminary relief. But if unconstitutional street stops are widespread, the police would properly be enjoined from undertaking them at all in the future. And if spot checks not meeting Terry standards are not widespread, what is lost by a narrowly drawn order restraining an uncommon practice ?
The final element to be weighed by the Distriсt Court is the public interest. In this inquiry, I do not think the court can ignore who the appellant and his lawyer are. The appellant is a poor man and a member of a racial minority. The President’s 1967 Crime Commission observed that police field interrogations are directed predominantly at and often conducted indiscriminately among that very class of citizens. As a result, the Commission warned, street stops are a major source of friction between police and minority groups, creating resentment of the police in the urban ghettos.
V
The guarantees of the Constitution exist for. all men, rich and poor alike. But to say that such rights exist for all men is only meaningful if both rich and poor have the means to secure them. Since appellant is a poor man, he could not himself afford the crippling cost of this extended litigation. He would not be before the courts today were it not for the voluntary representation of the American Civil Liberties Union, whose resources, it now appears, may be insufficient for the burdens imposed by the courts.
Nonetheless, the court today - is sending appellant back to the District Court once more without meaningful relief and without any guidelines for that court’s consideration of an appropriate remedy. The court is, in effect, sending appellant back down to the bottom of the hill that he began climbing five long years ago, and instructing him to begin anew. In my view, the District Court should be instructed on remand to consider the affidavits presented to us, as well as other matters,
VI
The complaint in this case has been before the courts for more than five years. The police have been defending on the ground that their spot check procedure is proper. It may then well be that they have been engaging in that practice every day, all day long, while the complaint is unresolved. Since we piously refrain from expediting the solution, we are part of the problem. What credibility do we then have in urging the victims of police misconduct to rely on the courts — not on the streets — to redress their grievances?
. Gomez v. Wilson,
. Ricks v. District of Columbia,
. Memorandum Regarding Vagrancy . . . Observations and Arrests, Metropolitan Police Dept., Feb. 17, 1969, Joint App. at 241-243.
. Memorandum Concerning Traffic Law Enforcement, Metropolitan Police Dept., Nov. 3, 1964, Joint App. at 275; see Second District Memorandum No. 237, Dec. 19, 1969, Joint App. at 277-278.
.
. Second District Memorandum No. 230, June 12, 1970, Joint App. at 280-281. It is clear from the record that the other Districts in the Metropolitan Police Dept. use Form PD 725 in the same way. Joint App. at 264.
. Second District Memorandum No. 14, Jan. 13, 1970, Joint App. at 282.
. While there are distinctions between the arrest procedures following vagrancy оbservations and spot checks, those differences are irrelevant here, since we are concerned only with the initial stop and interrogation.
The “spot check” does, however, involve a different question than the Police Dept.’s “stop and frisk” policies at issue in Hall v. United States,
.
. Adams v. Williams,
.
[The] police officers . . . must have specific facts from which they can infer that an individual is engaged in сriminal activity. .
This articulation of the Terry standard provides a marked contrast to the statement of a District police officer as to his understanding of the standard for making a pedestrian spot check :
Anyone that acts in a suspicious manner or draws my attention to them for whatever incident it might be, . well just a person of suspicious nature [may be stopped].
Deposition of Officer John Ferguson, Joint App. at 203, 210-211.
. Commonwealth v. Swanger,
. If the court did not find that the spot check was an infringement on the appellant’s constitutional rights it could not have purported to enjoin the police from stopping him in the course of a spot check. Clearly, however, the District Court does enjoin the police from stopping Gomez in the course of either a spot cheek or vagrancy observation as long as he is sober, well behaved, and in conformance with the law.
. Long v. District of Columbia,
. The President’s Commission on Law Enforcement and the Administration of Justice, Task Force Reports: The Police at 18 (1967).
. Id. at 32.
. Id. at 185-186; see note 28, infra, and accompanying text.
. American Bar Association Projeсt on Minimum Standards for Criminal Justice, Standards Relating to The Urban Police Function (Approved Draft, 1973) at § 5.1, in 12 Crim.L.Rep. 3133 (1973).
. The ABA did, however, vote its disapproval of legislation aimed at curtailing the application of the exclusionary rule. 12 Crim.L.Rep. 1077 (1973). See note 29, infra.
. Standards Relating to The Urban Police Function, note 18, supra, at § 5.3.
. See discussion at 428, infra.
. See, e. g. Quaker Action Group v. Hickel,
. Court’s opinion, supra, at 416 n. 26-28; affidavits submitted in support of a motion for rehearing and suggestion for rehearing en banc in Long v. District of Columbia, No. 71-1072 (D.C.Cir. Dec. 4, 1972); Daugherty v. United States,
. The affidavits recounting these events are again outside the record on appeal but may be submitted to the District Court in support of the motion for preliminary injunctive relief.
. Potts v. Flax,
. As the Supreme Court observed in Terry,
. . . powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forego successful prosecution in the interest of serving some other goal. . . . The wholesale harassment by certain elemеnts of the police community, of which minority groups . . . frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial.
. See, e. g., Lankford v. Gelston,
. The President’s Commission on Law Enforcement and the Administration of Justice, Task Force Reports: The Police 183-185 (1967); see Terry v. Ohio,
. By decreasing the incidence of police misconduct through . suits like the one before us, we may also alleviate the burden of the oft criticized exclusionary rule. Class action injunction suits against police misconduct thus appear to be one step towards a “workable remedy” suggested by the Chief Justice in Bivens v. Six Unknown Federal Narcotics Agents,
. It is too well known for doubt that the resources of the ACLU do not permit the kind of far flung investigation which the history of this litigation seems to envision. And, according to recent reports, OEO legal assistance for the vindication of guaranteed rights is about to be withdrawn. See, e. g., Washington Post, February 17, 1973, Al col. 1.
. See Boddie v. State of Conn.,
. See notes 23 and 24, supra, and accompanying text.