446 F.

2d 1343

George W. LEWIS et al., Appellants,

v.
George F. KUGLER, Jr., individually and in his official
capacity as Attorney General of the State of New
Jersey, et al.
No. 71-1227.

United States Court of Appeals, Third Circuit.

Argued June 22, 1971.
Decided Aug. 4, 1971, As Amended Sept. 28, 1971.

Frank Askin, Richard H. Chused, Newark, N.J., for appellants.

Fred H. Kumpf, Deputy Atty. Gen. of N.J., Div. of Crim. Justice (George
F. Kugler, Jr., Atty. Gen. of N.J., Trenton, on the brief), for appellees.
Before VAN DUSEN and ROSENN, Circuit Judges, and KRAFT, District
judge.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.

Plaintiffs appeal from a March 11, 1971, order of the United States District
Court for the District of New Jersey, 324 F.Supp. 1220, denying plaintiffs'
motion for a preliminary injunction and dismissing plaintiffs' complaint. 1

Plaintiffs, thirty-seven named individuals, filed a complaint under the Civil

Rights Act of 1871, 42 U.S.C. 1983 (1964), on behalf of themselves and all
others similarly situated seeking declaratory and injunctive relief against the
defendants. Plaintiffs allege that they 'have travelled in private vehicles upon
the public toll roads and public highways of the State of New Jersey and * * *
have been subjected to arbitrary stops and unreasonable searches of their
persons and their vehicles by defendant(s).' Plaintiffs seek pursuant to
Fed.R.Civ.P. 23 to represent a class consisting of 'persons who travel in private
vehicles upon the public toll roads and public highways of the State of New

Jersey and who are subject to (a) pattern and practice of halting and
unreasonably searching vehicles and travellers.' Plaintiffs also seek pursuant to
Fed.R.Civ.P. 23(c)(4)(B) to represent a subclass consisting of 'persons of highly
individualized personal appearance who travel in private vehicles upon the
public toll roads and public highways of the State of New Jersey and who are
subject, solely because of said highly individualized personal appearance, to (a)
pattern and practice of selective halting and unreasonable searching of vehicles
and travellers.' Plaintiffs characterize members of this subclass as 'long-haired
highway travelers.' Defendants are the Attorney General of the State of New
Jersey, the Superintendent of State Police, fourteen named individual New
Jersey State Troopers, and all other members of the New Jersey State Police
'who have participated in carrying out against the named plaintiffs the pattern
and practice of halting and unreasonably searching vehicles and travellers.'
3

The complaint charges that the defendants engage in a 'pattern and practice of
unreasonable searches of vehicles and travellers carried on without probable
cause,' resulting in a denial to plaintiffs, the plaintiff class consisting of all
travellers, and the plaintiff subclass consisting of all long-haired travelers of
their rights to travel and to be free from unreasonable searches. The complaint
also charges that this 'pattern and practice,' which the complaint charges is
directed selectively at 'long-haired travellers' on the basis of their 'highly
individualized personal appearance,' works a denial of due process, equal
protection, freedom of association, and freedom of expression. The plaintiffs
find protection for the rights denied in the first, fourth, ninth and fourteenth
amendments to the Constitution, as well as in the commerce clause of article I,
section 8. The plaintiffs support these allegations with 17 pages in the
complaint of detailed factual recitations relating to 25 separate incidents
involving contact between plaintiffs and defendants, as well as with 25
affidavits in support of their motion for a preliminary injunction. The complaint
seeks, in addition to a declaration that the alleged pattern and practice of
selective searches is unconstitutional and an injunction against its continuance,
broad equitable relief in the nature of district court approval of a plan to be
formulated by certain defendants to cure the alleged deprivations of
constitutional rights and to prevent their recurrence. The complaint asks that the
plan include published notices that the pattern and practice of unlawful searches
is being terminated, official handbills to be given to motorists stopped by the
State Police advising them of the injunctive relief and describing how they may
report violations of the court's decree, and signs on the rear of State Police
vehicles advising that 'unreasonable searches are illegal.' The complaint also
seeks an injunction prohibiting the prosecution of 10 of the named plaintiffs by
state officials as a result of the searches of the named plaintiffs and their
vehicles described in the complaint.

The district court ordered a hearing on plaintiffs' motion for a preliminary

injunction. After hearing the testimony of three of plaintiffs' witnesses
regarding incidents of allegedly unlawful searches to which they had been
personally subjected, the court ordered a recess, indicating that a decision on
defendants' motion to dismiss would be announced after the recess. Following
the recess, counsel for plaintiffs made an offer of proof to show what the
plaintiffs were prepared to prove further in support of their motions for a
preliminary injunction.2 The court then granted defendants' motion to dismiss
the complaint, giving an oral opinion on the legal issues involved, which was
supplemented by a written opinion filed March 16, 1971. This appeal followed.
It is not disputed on this appeal that the complaint states a federally cognizable
cause of action. The issues here are limited to whether the district court should
grant relief in the event that the plaintiffs prove the allegations in their
complaint.
I.
THE ABSTENTION DOCTRINE

In dismissing the complaint, the district court invoked the abstention doctrine,
holding that principles of comity required that plaintiffs' claim first be
presented to the New Jersey state courts. This is an action brought under the
federal Civil Rights Act, raising federal constitutional claims and prior resort to
the state courts is not required.3 Federal courts faced with federal constitutional
claims should abstain only when there is an unresolved question of state law
which only the state courts can authoritatively construe.4 Abstention in such
cases permits state court decisions which may render unnecessary the
resolution of constitutional issues, and thereby avoid any possible strain on our
system of federalism.5 There is no uncertain state law issue in this case.

The Supreme Court considered the availability of state remedies in the context
of actions brought under 42 U.S.C. 1983 in Monroe v. Pape, 365 U. S. 167, 81
S.Ct. 473, 5 L.Ed.2d 492 (1961), and stated:

It is no answer that the State has a law which if enforced would give relief. The
federal remedy is supplementary to the state remedy, and the latter need not be
first sought and refused before the federal one is invoked. Hence the fact that
Illinois by its constitution and laws outlaws unreasonable searches and seizures
is no barrier to the present suit in the federal court.

365 U.S. at 183, 81 S.Ct. at 482.

8
9

In discussing the expansion of federal judicial power resulting from the

enactment of 1983 in the Civil Rights Act of 1871, the Court stated in Zwickler
v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967):

10

Congress imposed the duty upon all levels of the federal judiciary to give due
respect to a suitor's choice of a federal forum for the hearing and decision of his
federal constitutional claims. Plainly, escape from that duty is not permissible
merely because state courts also have the solemn responsibility equally with the
federal courts, '* * * to guard, enforce, and protect every right granted or
secured by the constitution of the United States * * *,' Robb v. Connolly, 111
U.S. 624, 637, 4 S.Ct. 544, 28 L.Ed. 542. 'We yet like to believe that whereever
the Federal courts sit, human rights under the Federal Constitution are always a
proper subject for adjudication, and that we have not the right to decline the
exercise of that jurisdiction simply because the rights asserted may be
adjudicated in some other forum.'

11

389 U.S. at 248, 88 S.Ct. at 395.

12

This principle has not been altered by the recent decisions of the Supreme Court
in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971);
Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Boyle
v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v.
Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); Dyson v. Stein,
401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971), and Byrne v. Karalexis,
401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971). These cases deal with the
circumstances under which federal courts may appropriately intervene in
pending state criminal prosecutions,6 and are pertinent to this case only insofar
as the complaint seeks relief in the nature of an injunction against state criminal
proceedings or declaratory relief which would interfere with state criminal
proceedings. They are not applicable to situations where no prosecution is
pending in state courts at the time a federal proceeding is begun,7 and they do
not alter the abstention doctrine insofar as it relates to federal Civil Rights Act
claims which do not seek relief that entails intervention in state criminal
proceedings. We therefore hold that it was improper for the district court to
invoke the abstention doctrine to dismiss any portions of the complaint other
than those seeking an injunction against pending state criminal prosecutions
and declaratory relief involving pending state criminal prosecutions.
II.
THE STATE CRIMINAL PROCEEDINGS

13

In view of Younger v. Harris, supra, and Samuels v. Mackell, supra, insofar as

the complaint sought an injunction against the state criminal proceedings
pending against 10 of the named plaintiffs, and insofar as it sought a
declaratory judgment holding unconstitutional the searches and seizures
forming the basis of the state criminal proceedings pending against the ten,
dismissal was proper.8

14

The Court held in Younger that the possible unconstitutionality of a statute 'on
its face' does not justify an injunction against attempts to enforce it, absent a
showing of bad faith, harassment, or other unusual circumstances sufficient to
establish irreparable injury and therefore call for equitable relief. While this
case does not pose a challenge to the constitutionality of a state statute, the
equitable principle of Younger is nonetheless applicable, for the focus of
Younger is on intervention in pending state criminal proceedings, and that is
precisely what plaintiffs seek in part in this case. Plaintiffs have made no
showing, and have not alleged or offered to prove facts which if true would
establish, that the pending state criminal proceedings were brought in bad faith,
were brought merely to harass plaintiffs, or are being prosecuted under
circumstances establishing 'the kind of irreparable injury, above and beyond
that associated with the defense of a single prosecution brought in good faith,
that has always been considered sufficient to justify federal intervention.' 401
U.S. at 48, 91 S.Ct. at 752. While plaintiffs allege that the searches and seizures
forming the basis of the state criminal proceedings were conducted in bad faith,
that allegation, if true, would not establish the irreparable injury necessary to
justify federal court intervention to protect plaintiffs' rights. The plaintiffs
allege police misconduct, but an injunction against pending state criminal
proceedings would operate against the prosecutorial authorities, and there is no
allegation that they have either fostered or taken part in the alleged misconduct.
The facts alleged here are quite different from those alleged in Dombrowski v.
Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), where the plaintiffs
offered to prove that the prosecutorial authorities threatened to enforce statutes
against the plaintiffs without any expectation of securing valid convictions, that
despite a summary vacation of search and arrest warrants by a state judge for
lack of probable cause the prosecutorial authorities were continuing to threaten
new indictments and prosecutions based on the evidence ordered suppressed by
the state judge, and that the prosecutorial authorities were engaging in a plan of
arrests, seizures, and threats of prosecution for the sole purpose of harassing
plaintiffs in order to discourage them from attempting to vindicate the
constitutional rights of black citizens of Louisiana. In this case, as in Younger,
there is no allegation that the prosecutions are brought in bad faith, or are only
part of a series of repeated prosecutions to which the 10 plaintiffs being
prosecuted will be subjected. Here the 10 plaintiffs being prosecuted will have

an opportunity to raise their constitutional claims in the state criminal

proceedings, and there is no indication that defense of the state criminal
prosecution will not assure adequate vindication of their constitutional rights.9
The injury that they face is solely 'that incidental to every criminal proceeding
brought lawfully and in good faith,' and they are therefore not entitled to
equitable relief.10
15

Since the equitable principles of Samuels are applicable to the facts of this
case, and since an injunction against the state criminal proceedings pending
against the above-mentioned 10 plaintiffs is barred by those same equitable
principles, relief by way of a declaratory judgment that the searches and
seizures forming the basis of the state criminal proceedings against the 10 are
unconstitutional should also be denied. The Court in Samuels held that 'relief
by way of declaratory judgment should (be) denied without consideration of the
merits.' 401 U.S. at 66, 91 S.Ct. at 768. This case differs from Samuels,
however, in that the 10 plaintiffs being prosecuted, in addition to seeking relief
against the prosecutorial authorities, also seek relief against the New Jersey
State Troopers. As we have noted, that relief is not barred by the Younger and
Samuels line of cases. Accordingly, the district court may consider the merits
of the constitutional claims advanced by the 10 plaintiffs being prosecuted, as a
part of its consideration of all of the evidence offered by plaintiffs to prove a
pattern and practice of unlawful police misconduct, but the district court should
not enter a declaratory judgment with respect to the constitutionality of the
searches and seizures forming the basis of the state criminal proceedings
against the 10. The Younger and Samuels line of cases does not bar relief by
way of declartory judgment with respect to the 17 other named plaintiffs,
against whom state criminal prosecutions are not pending. We need express no
opinion on the propriety of declaratory judgments with respect to the 17 other
named plaintiffs on the present record.
III.
THE PROBLEM OF REMEDY

16

The district court appears to have based its dismissal in part upon the belief
that, even if plaintiffs are able to prove that the New Jersey State Troopers are
selectively subjecting 'longhaired highway travelers' to a pattern and practice of
unconstitutional searches and seizures, it would be either improper to grant
relief, or impossible to fashion appropriate relief. The district court stated:

17

As to the class of persons which plaintiffs purport to represent, the injunctive

relief sought here which would restrain activity of the New Jersey State Police
is not only difficult to conceive but almost impossible to fashion effectively. * *
* (Such relief) would be a most unwarranted intrusion by a federal court upon
the functions of the executive branch of the state government and the inhibiting
effect on law enforcement and police morale would, in the opinion of this
Court, be more disastrous to the public interest than the inhibiting effect of
which plaintiffs complain.
18

If the plaintiffs can establish that they are subjected to a deliberate pattern and
practice of constitutional violations by the New Jersey State Troopers, we
believe that they are entitled to appropriate injunctive relief. Persons who can
establish that they are being denied their constitutional rights are enentitled to
relief,11 and it can no longer be seriously contended that an action for money
damages will serve adequately to remedy unconstitutional searches and
seizures.12 The United States Court of Appeals for the Fourth Circuit, in a
unanimous en banc decision, has noted that neither the personal assets of police
officers nor the nominal bonds they furnish afford a genuine hope of redress,
that there is no provision for compensation from public funds, and that the
wrongs inflicted by unconstitutional police conduct are not readily measurable
in monetary terms. Lankford v. Gelston, 364 F.2d 197, 202 (4th Cir. 1966) (en
banc). The Supreme Court has characterized the prospect of pecuniary redress
for the harm suffered as a result of unconstitutional searches and seizures as
'worthless and futile.' Mapp v. Ohio, 367 U.S. 643, 652, 81 S.Ct. 1684, 6
L.Ed.2d 1081 (1961). In addition, history has demonstrated that the possibility
of a judgment for money damages does not serve as an effective deterrent to
future unconstitutional police conduct.13

19

The Supreme Court approved the use of an injunction as a remedy for

unconstitutional police conduct in Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954,
83 L.Ed. 1423 (1939).14 The Fourth Circuit approved the use of an injunction
as a remedy for unconstitutional searches and seizures by police in a
unanimous, well-reasoned opinion in Lankford v. Gelston, 364 F.2d 197 (4th
Cir. 1966) (en banc), a decision which has been cited with approval by the
Court of Appeals for the District of Columbia Circuit in Gomez v. Layton, 129
U.S.App.D.C. 289, 394 F.2d 764 (1968), and by the Court of Appeals for the
Seventh Circuit in Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969). In
addition, the United States District Courts have often used injunctive relief
against unconstitutional police conduct,15 and injunctive relief against state
officials has frequently been imaginatively fashioned by the federal courts in
school desegregation cases.16

20

The district court's concern about inhibiting lawful law enforcement is of

20

course a proper concern. A federal court should avoid unnecessarily dampening

the vigor of a police department by becoming too deeply involved in the
department's daily operations, both because of the vital public interests at stake,
and because of the danger that the court could become enmeshed in endless
time-consuming bickering and controversy. Should the plaintiffs establish that
a substantial threat of constitutional violations exists, either directed by or
tolerated by officials of the New Jersey State Troopers or the State of New
Jersey, one means of remedying the situation available to the district court
would be to direct appropriate orders to the responsible officials, with a view to
having the situation corrected by them internally, by altering the police
disciplinary procedure or otherwise. This is only one of numerous possible
alternatives,17 and whether it would be necessary or adequate to protect
plaintiffs' rights of course depends upon the facts. Like any court of equity, the
district court has very broad power to fashion a remedy appropriate to deal with
the factual situation before the court.18 Two considerations must be borne
uppermost in mind: first, deprivations of constitutional rights must be stopped
promptly; and, second, unnecessary encroachment upon state and local
government functions must be avoided.19 We are confident that the district
court, which is free to draw upon its wide experience, history, and the
recommendations of responsible parties,20 can fashion an appropriate remedy
that will protect the constitutional rights of citizens, while preserving the
integrity and efficiency of the law enforcement authorities.

21

If the plaintiffs establish that a substantial threat of directed or tolerated

constitutional violations exists, the 'inhibiting effect on * * * police morale' (see
page 1350 above) is not the sole consideration for the court. As Mr. Justice
Brandeis so eloquently observed 43 years ago in his dissenting opinion21 in
Olmstead v. United States, 277 U.S. 438, 471, 48 S.Ct. 564, 72 L.Ed. 944
(1928), and as this court recently noted in In re Grand Jury Proceedings No. 711088 (3rd Cir., filed May 28, 1971) (Slip opinion at 35):

22

In a government of laws, existence of the government will be imperilled if it

fails to observe the law scrupulously. Our government is the potent, the
omnipresent teacher. For good or for ill, it teaches the whole people by its
example. Crime is contagious. If the government becomes a lawbreaker, it
breeds contempt for law; it invites every man to become a law unto himself; it
invites anarchy. To declare that in the administration of the criminal law the
end justifies the means-- to declare that the government may commit crimes in
order to secure the conviction of a private criminal-- would bring terrible
retribution. Against that pernicious doctrine this court should resolutely set its
face. 277 U.S. at 485, 48 S.Ct. at 575.

23

We need not detail here the significance of unconstitutional police conduct or

the importance to social stability and police morale of public respect for law
enforcement authorities, for these matters have been adequately dealt with
elsewhere.22

24

For the reasons stated above, the order of March 11, 1971, will be vacated, and
this case will be remanded to the district court for proceedings consistent with
this opinion.23 The plaintiffs should be given a prompt hearing on their motion
for a preliminary injunction.24

Defendants have not appealed from that portion of the March 11, 1971, district
court order denying defendants' motion to convene a district court of three
judges pursuant to 28 U.S.C. 2281, 2284 (1964)

Counsel for the plaintiffs made the following offer of proof:

Now, there are other kinds of witnesses we do plan to produce. For example, I
do plan to produce a newspaper reporter who will testify to the fact that he rode
around with the State Police on newspaper assignments for several nights about
a year ago and witnessed, in the course of about twenty to twenty-four hours of
riding with State Police, some twenty-five searches which, as he will describe
them, are unconstitutional searches in the course of about three nights, * * *
I have under subpoena, and he may be in the courtroom now, I am not sure. I
asked him to be here; a Mr. the Court Clerk of the Bergen County District
Court, who has made public statements quoted in the newspapers to the effect
that the State Police have a practice of stopping long-haired drivers on the
highways in order to try to find drugs in their cars.
We have some other witnesses who have not themselves been searched. For
example, two attorneys from Philadelphia, whom we had planned to produce,
who would testify to the notoriety of the practices of the New Jersey State
Police among the long-haired community and the impact which this practice
and its notoriety have had on the traveling habits of members of the long-haired
community.
In addition, your Honor, there is some documentary evidence which we would
be prepared to introduce which includes, for example, a number of admissions
by State Troopers at various hearings as to their policy or their practice of
searching out long-haired travelers.

N.T. 44-46.
3

See, e.g., Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319
(1968); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647
(1967); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967);
McNeese v. Board of Education, 373 U.S. 668, 671-672, 83 S.Ct. 1433, 10
L.Ed.2d 622 (1963); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d
492 (1961); Burnett v. Short, 441 F.2d 405 (5th Cir. 1971)

See, e.g., Wisconsin v. Constantineau, 400 U.S. 433, 437-439, 91 S.Ct. 507, 27
L.Ed.2d 515 (1971); Fornaris v. Ridge Tool Co., 400 U.S. 41, 43, 91 S.Ct. 156,
27 L.Ed.2d 174 (1970); Reetz v. Bozanich, 397 U.S. 82, 86-87, 90 S.Ct. 788, 25
L.Ed.2d 68 (1970); Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 14
L.Ed.2d 50 (1965); Harrison v. NAACP, 360 U.S. 167, 176-177, 79 S.Ct. 1025,
3 L.Ed.2d 1152 (1959); City of Meridian v. Southern Bell Tel. & Tel. Co., 358
U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959)

See, e.g., Reetz v. Bozanich, 397 U.S. 82, 86-87, 90 S.Ct. 788, 25 L.Ed.2d 68
(1970); Harman v. Forssenius, 380 U.S. 528, 534 & n. 7, 85 S.Ct. 1177, 14
L.Ed.2d 50 (1965); Railroad Com'n of Texas v. Pullman Co., 312 U.S. 496, 61
S.Ct. 643, 85 L.Ed. 971 (1941)

All of these cases, with the exception of Samuels v. Mackell, 401 U.S. 66, 91
S.Ct. 764, 27 L.Ed.2d 688 (1971), deal with the circumstances under which a
federal court may appropriately enjoin a pending state criminal prosecution.
Samuels dealt with the circumstances under which a federal court may
appropriately inject itself into a pending state criminal prosecution by issuing a
declaratory judgment pursuant to the Federal Declaratory Judgment Act of
1934, 28 U.S.C. 2201 (1964), adjudicating the validity or invalidity of the state
statute upon which the pending criminal prosecution is based. The decisions in
these cases, which turn on established principles of equity, focus on Federal
court intervention in pending state court proceedings. These decisions are
inapplicable to the instant case, except insofar as the instant complaint seeks an
injunction against pending state criminal proceedings and declaratory judgment
which would interfere declaratory judgments which would interfere because
the bulk of the instant complaint does not seek to interfere with pending state
criminal proceedings. The request for relief against pending state criminal
proceedings relates to only 10 of the 37 named plaintiffs, and those 10 seek
other relief as well

See, e.g., Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 27 L.Ed.2d 669
(1971)

This part of the complaint requests:

That preliminary and permanent injunctions issue prohibiting the defendant,

Attorney General Kugler, and all his agents, servants, employees, and all others
under his control or in concert with him, from prosecuting any complaint
resulting from the searches of said plaintiffs and their vehicles as detailed in the
foregoing complaint against the following named plaintiffs: Charles W. Jaeger,
Ellen Urman, Edward Piwowarski, Christopher Paul Barone, Alan P. DeMott,
Bruce J. Nugent, Alan C. Morrill, Paul Schneider, Benjamin Nechin, and Alan
H. Gordon, in any of the following criminal proceedings: grand jury
proceedings, trial proceedings, and any other criminal proceedings instituted
against the above named plaintiffs.
The district court treated this paragraph as a request for injunctive relief against
future prosecutions of the 17 named plaintiffs who were not subject to pending
state criminal proceedings at the time the suit was instituted. Such relief must
be denied, not only because the complaint and offers of proof do not make out a
case for such injunctive relief, for the reasons detailed in Part II of this opinion,
but also because the 17 against whom prosecutions apparently are not
threatened are not appropriate plaintiffs in an action for such injunctive relief.
See Younger v. Harris, 401 U.S. 37, 41-42 91 S.Ct. 746, 27 L.Ed.2d 669
(1971); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113
(1969).
9

See Younger v. Harris, 401 U.S. 37, 48-49, 91 S.Ct. 746, 27 L.Ed.2d 669
(1971); cf. Dombrowski v. Pfister, 380 U.S. 479, 485-486, 85 S.Ct. 1116, 14
L.Ed.2d 22 (1965)

10

See Younger v. Harris, 401 U.S. 37, 49, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971);
Douglas v. City of Jeannette, Pa., 319 U.S. 157, 164, 63 S.Ct. 877, 87 L.Ed.
1324 (1943); Watson v. Buck, 313 U.S. 387, 400, 61 S.Ct. 962, 85 L.Ed. 1416
(1941); Beal v. Missouri Pac. R.R., 312 U.S. 45, 49, 61 S.Ct. 418, 85 L.Ed. 577
(1941)

11

See, e.g., Henry v. Greenville Airport Comm'n, 284 F.2d 631, 633 (4th Cir.
1960); Clemons v. Board of Education, 228 F.2d 853, 857 (6th Cir.), cert.
denied, 350 U.S. 1006, 76 S.Ct. 651, 100 L.Ed. 868 (1956)

12

The United States Court of Appeals for the Seventh Circuit has noted that
where, as in this case, it is alleged that first amendment rights have been chilled
as a result of government action, a 'presumption of irreparable harm is
manifest.' Schnell v. City of Chicago, 407 F.2d 1084, 1086 (7th Cir. 1969); see
Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967);
Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965)

13

See, e.g., Mapp v. Ohio, 367 U.S. 643, 651-652, 670, 81 S.Ct. 1684, 6 L.Ed.2d

1081 (1961); Irvine v. California, 347 U.S. 128, 137, 74 S.Ct. 381, 98 L.Ed.
561 (1954); Lankford v. Gelston, 364 F.2d 197, 202 (4th Cir. 1966) (en banc)
14

This decision affirmed with modifications 101 F.2d 774 (3rd Cir. 1939), which
had affirmed 25 F.Supp. 127 (D.N.J.1938)

15

See cases cited in Note, The Federal Injunction as a Remedy for

Unconstitutional Police Conduct, 78 Yale L.J. 143, 146 n. 17 (1968), and in
Lankford v. Gelston, 364 F.2d 197, 201 n. 5 (4th Cir. 1966) (en banc). Quite
recently, on September 4, 1970, the United States District Court for the Eastern
District of Pennsylvania, in Council of Organization on Philadelphia Police
Accountability and Responsibility v. Tate, Civ.No. 70-2430 (E.D.Pa.), issued a
temporary restraining order against unconstitutional searches and seizures by
police. That order of September 4, 1970, provided in relevant part:
The defendant police officials and all police officers in Philadelphia having
notice hereof are restrained and enjoined until further hearing in this matter
from violating the rights of the plaintiffs or any member of the class of
plaintiffs guaranteed to them under the Constitution of the United States or
directly and indirectly causing any such violation and particularly are restrained
and enjoined from entering without warrant or probable cause the homes of
plaintiffs and members of the class of plaintiffs or harassing or arresting said
class members in violation of their rights as citizens. Nothing in this order shall
be construed as limiting in any way the authority of the police to enforce the
law in a lawful manner and to exercise and defend their own rights as citizens.
See N.T. 217-18.
This order was issued as a precautionary measure at a time when there was
considerable tension between the plaintiff class and the Philadelphia Police
Department, and there was genuine reason for concern that the existing tension
might dramatically escalate. See N.T. 218. After the issuance of this order, the
feared escalation in tensions did not materialize. For a more comprehensive
order of a similar nature, see the preliminary injunction of July 10, 1965, in
Hicks v. Knight, Civ.No. 15,727 (E.D.La.), 10 Race Rel.L.Rep. 1504, 1505.

16

See cases cited in Note, The Federal Injunction as a Remedy for

Unconstitutional Police Conduct, 78 Yale L.J. 143, 148 n. 20, 149 n. 25 (1968)

17

For example, should the court find that, unknown to their superiors,
deprivations of constitutional rights are perpetrated by only a few of the
defendants, it might be possible to fashion a remedial order only with respect to
those defendants

18

This broad power to fashion appropriate remedies extends from the power to
issue injunctions against individual offenders and to appoint observers and
special masters, to the power, in extreme cases, to appoint receivers. See, e.g.,
Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) (en banc); Knight v. Board
of Education, 48 F.R.D. 115 (E.D.N.Y. 1969); Murray v. Madigan, Civ.No.
51398 (N.D.Cal., filed May 29, 1969) (observers appointed to report to court
events at mass arrest facilities); Kapral v. Jepson, 271 F.Supp. 74
(D.Conn.1967); Turner v. Goolsby, 255 F.Supp. 724 (S.D.Ga.1965) (threejudge court) (public school system placed in receivership); Butterworth v.
Dempsey, 237 F.Supp. 302 (D.Conn.1965); United States v. Manning, 215
F.Supp. 272, 292-294 (W.D.La.1963). See generally Brown v. City of
Meridian, 356 F.2d 602, 605 (5th Cir. 1966); Lefton v. City of Hattiesburg,
Miss., 333 F.2d 280, 284 (5th Cir. 1964); Note, Monitors: A New Equitable
Remedy?, 70 Yale L.J. 103 (1960)

19

For a thorough discussion of the problem presented by this case, as well as

potential solutions, see Note, The Federal Injunction as a Remedy for
Unconstitutional Police Conduct, 78 Yale L.J. 143 (1968), and Comment, Use
of 1983 to Remedy Unconstitutional Police Conduct: Guarding the Guards, 5
Harv.Civ.Rights-- Civ.Lib.L.Rev. 104 (1970)

20

In Goode v. Tate, Civ.No. 70-491 (E.D.Pa.), a case involving an alleged pattern

of constitutional deprivations by police, the United States District Court for the
Eastern District of Pennsylvania received suggestions regarding an appropriate
remedy from such non-profit civic groups as the Greater Philadelphia
Movement and the Philadelphia Bar Association. We express no opinion on the
merits of Goode

21

This dissenting opinion was cited with approval by the Court in Elkins v.
United States, 364 U.S. 206, 222-223, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)

22

See, e.g., Brinegar v. United States, 338 U.S. 160, 180-181, 69 S.Ct. 1302, 93
L.Ed. 1879 (1949) (Jackson, J., dissenting); Lankford v. Gelston, 364 F.2d 197
(4th Cir. 1966) (en banc); Report of the National Advisory Comm'n on Civil
Disorders, 11, 143-44, 299-307 (1968); President's Comm'n on Law
Enforcement and Administration of Justice: Task Force Report: The Police,
178-89 (1967); Edwards, Order and Civil Liberties: A Complex Role for the
Police, 64 Mich.L.Rev. 47 (1965)

23

On this appeal, it is not necessary to determine whether this case should be

permitted to proceed on behalf of, and/or against, members of a class. However,
it is noted that the Courts of Appeals have approved flexible methods of
decisions on class action issues by the district courts. See, e.g., Ernst & Ernst v.

United States District Court, 439 F.2d 1288, 1293 (5th Cir. 1971). We reiterate
that there is a strong policy in favor of articulation of findings and reasons for
decision on class action issues. Interpace Corp. v. City of Philadelphia, 438
F.2d 401, 404 (3d Cir. 1971)
24

Even the brief testimony of plaintiffs' witnesses which the district court was
willing to hear makes clear that some plaintiffs were entitled to relief in the
absence of evidence offered by defendants. See, for example, testimony of
plaintiff Berman at N.T. 80a-89a. A plaintiff is entitled to the relief required by
the evidence 'even if the party has not demanded such relief in his pleadings.'
See F.R.Civ.P. 54(c); see also Norwalk Core v. Norwalk Redevelopment
Agency, 395 F.2d 920, 925-926 (2d Cir. 1968), where the court said:
'* * * (A) complaint should not be dismissed for legal insufficiency except
where there is a failure to state a claim on which some relief, not limited by the
request in the complaint, can be granted.'
See also 6 Moore's Federal Practice 54.60 (2d Ed. 1966, including 1970
Supplement at p. 86).